What you need to know:
- Mr Wangusi will now also have to face the ghosts of the human resource audit, which he was accused of delaying.
- If he is allowed to return to his office, he will have to deal with the shutdown of television stations last week.
The Industrial Court on Tuesday reinstated Mr Francis Wangusi to the helm of the Communications Authority (CA), but he will find an additional, unprecedented and enormous task in his in-tray.
On Friday, President Uhuru Kenyatta ordered that CA should surrender Sh1 billion to the Directorate of Criminal Investigations (DCI).
The President did not mince words and made it clear that CA was expected to collect fees but he was not sure how it was used.
He was particularly concerned with Universal Service Fund administered by the CA.
The Fund is primarily financed by mandatory contributions from licensed telecommunications operators that provide services in the various communications market.
President Kenyatta was unequivocal: “We have agreed this morning (Friday) that in order to boost the DCI to deal with cybercrime, the CA, which has the Universal Service Fund, through which they collect money and we do not know how they spend it, Sh1 billion from the fund will be moved to the DCI.”
He made the directive during the annual Inspector-General’s Conference at the Kenya School of Government in Kabete.
Mr Wangusi’s return is tumultuous.
When he returned on Thursday after a forced leave, sentries at CA’s headquarters who would normally salute at the sight of his limousine, remained cold and dared not open the gates.
Not even a court order from the Industrial Court would move the sentries – unless they received “orders from above”.
The orders were not forthcoming, and Mr Wangusi was forced to ride away.
The CA board sent him on compulsory leave on January 12.
Whether Mr Wangusi will manage to navigate his way back or not, the new presidential directive adds pressure to the unexplained licensing question that threw out the boss in the first place.
His return, aided by the court, promises to bring an earlier closure to a process that would have helped Kenya know how the country lost billions in licensing fees at a time when the national Treasury is struggling to find new ways to squeeze the taxpayers one more time to fund rising expenditure.
This might also have helped explain why the government, in Mr Kenyatta’s words, has not been receiving the money from CA.
At the heart of the battle are three licence controversies where the government is said to have lost over Sh5 billion in licensing fees.
At first, Sh2 billion was lost when Airtel declined to pay for spectrum licence as demanded by CA, claiming that it had acquired its license when it bought out yu Mobile from Essar in 2015.
Yu quit Kenyan market after a short stint.
During the sale, Airtel paid Sh718 million for yu Mobile operating licence and inherited its subscribers.
Safaricom paid the balance of the purchase price (Sh8.6 billion) to acquire the operator’s network, IT and office infrastructure.
However, wrangles in the business transaction moved to court.
Airtel in papers filed in court objected to the billing for the “spectrum fees” saying they were never told, in the first place, that they would be required to foot the bill.
The Government responded by directing CA to present a strong defence – seeing as it were the matter was an easy one given that licenses are normally paid for separately.
But Mr Wangusi and his team are said to have favoured an out of court settlement, a position they presented to the Information Cabinet Secretary Joseph Mucheru.
The government lost the court case, eventually, and some in the system blamed it on Mr Wangusi, believing the CA presented a weak case because of its preference for an out of court settlement.
When Mr Wangusi was sent home, he moved to court, armed with an affidavit, seeking to defend his decisions.
It refers to meetings that arrived at the out of court settlement.
The affidavit says: “At the meeting, the Cabinet Secretary asked the board to withdraw its decision of settling out of court and instead defend … in court.”
Mr Wangusi and his team are also accused of delaying in invoicing Airtel Sh2.5 billion for their 4G license even with the company rolling out the service on a commercial basis.
The other licensing matter on the table is the awarding of Jamii Telecom, a tier two telecommunications firm, a license to operate mobile phone service normally reserved for companies under tier 1.
Tier two companies pay only Sh100,000 to operate while tier 1 pay in excess of Sh2 billion.
The award, seen as a gift, has been protested by the other telecommunications companies operating in the country given that it was too small, compared to over Sh2 billion they were paying to be allowed to operate.
Jamii is associated with businessman Joshua Chepkwony, widely known for his Faiba brand and Kass FM.
The other question raised on the award of the license for the 700MHz frequency to Jamii was why the CA did not put it up for auction to allow other players to participate.
Telkom Kenya CEO Aldo Mareuse in a protest letter to the CA says that the apprehension of the other mobile operators is heightened by the fact that the tier two operators will be directly competing in the same LTE market they operate and might not be subjected to the same terms with regard to fees, rollout obligations or other conditions.
Jamii Telecom was granted the license in September last year and has been running trials on it using the prefix 0747.
Mr Wangusi will now also have to face the ghosts of the human resource audit, which he was accused of delaying.
He narrates in court papers that the board was of the view that he might have an interest in the procurement of the consultant that is why the process was taking so long.
“On the status of the Human Resource Audit, the board was of the view that 'the process had taken unreasonably too long. They were of the view that the Director-General might have an interest in the procurement of the consultant that is why the process was taking so long,"' his affidavit reads in part.
It was at that point that the board, through its session chair, a Mr Christopher Huka, issued him a letter sending him on a three months compulsory leave with effect from January 12.
Mr Wangusi argues that the special board meeting was not a disciplinary meeting calling for any investigations.
His return will also make an interesting reading on his relationship with the Information CS after communication leaked showing a tense relationship between CA and the ministry.
Citing austerity measures that had made it broke, the ministry turned CA into a cash cow, begging it to fund almost anything from foreign trips to agricultural shows in Mombasa and Kisumu.
The CA was asked to pay for the top officials at the ministry including their personal assistants, drivers and security.
Mr Wangusi has filed the series of financing requests placed by his parent ministry at his doorstep, some that he accepted as a whole, partially or rejected all together.
One of the most conspicuous requests came towards the end of the year where the ministry requested him to provide Sh25 million to go towards the swearing-in ceremony of President Kenyatta, despite the function being fully budgeted for.
“I ignored this letter with the contempt it deserves since I was aware that this was a scheme by corrupt public servants to swindle public resources. My stand obviously truly angered the corrupt officers who are now fighting back,” he says in court papers.
Mr Wangusi was later asked to ‘ignore and cancel’ the request after it raised eyebrows.
If he is allowed to return to his office, he will have to deal with the shutdown of television stations last week.
Despite a court order, the authority has been playing games with lawyers trying to serve them the order.
He will also find the team left behind had set to release the telecommunication competition report ending the speculation that his woes had anything to do with the tabling of the now controversial report.
When he was away the CA announced that it will make public the report on the state of competition in the sector in February.
The report will include a roadmap for implementation of the adopted competition study recommendations.
The release and consequent implementation of the report is set to lay to rest the dominance debate once and for all.