It is clear that the drafters of the Constitution intended that the regulatory regime of the media and telecoms industry ought to be independent. In the words of Article 34(5) of the Constitution, Parliament is required to establish a “body which shall (a) be independent of control by government, political interests or commercial interests, and (b) reflect the interests of all sections of the society.”
The Board of the Communication Authority totally fails to adhere to this constitutional imperative.
Ms Patricia Kimama is a Board Member of the CA. She is also the “Head of Cash Management and E-Channels” at the Commercial Bank of Africa. In essence, she runs the M-shwari platform at CBA which, for many years, was exclusively franchised to CBA by Safaricom. So Ms Kimama oversees the regulation of Safaricom at the CAK and can make decisions regarding the propriety of CBA being the only exclusive franchisee of Safaricom and retire to run the very same M-Shwari at CBA. There is an obvious conflict.
In addition, and with respect to the Executive’s interference with the affairs of CA contrary to the above constitutional provisions, how can it be that CBA, which is owned by the President’s family, can have its employee (Ms Kimama) at CAK and Safaricom (in which the State has a large stake), it being that Safaricom is the biggest commercial partner of CBA under the M-shwari relationship? There is an impermissible and clear conflict of interest.
Another Board Member, David Kitur, runs Microlan Africa which also conducts business with telecom operators regulated by CAK.
The governing Act of CAK also requires Board members to have resigned from any conflict situation not less than six months before their appointment.
In all respects, the Board of CAK does not meet the constitutional test of independence and its constitutional is open to challenge in Court.