[kictanet] Memorandum of Views ::attached::

[Alex Gakuru]

[Following our meetings with Human Rights groups find
attached views on the ICT Bill. -- AlexG]   

<excerpts>

I hereby circulate the memorandum of views and initial
draft critique in as far as the Bill as drafted
threatens free expression and introduces really novel
legal issues that have the potential of taking away
constitutional rights. We had an urgent media
stakeholders meeting on 12th July in which we
discussed the Bill and were shocked by its
implications.

The ICT Bill comes in as the Kenya Communications
(Amendment) Bill, 2007 - also a rather novel way of
enacting a new law completely different from the
original version. This particular amendment bill is
very ambitious as it even amends other laws (including
some constitutional issues!). This Bill has already
been tabled in Parliament for 1st reading on 4th July
and is speculated to go for second reading the week of
23rd - 27th July!

Clearly there is need for more time for consultation
on the Bill and the issues - kindly go through the
Bills and raise more issues. Please read the critique
and react ASAP - from the rooftops if possible! We
need all pairs of eyes reading this Bill. (The Bill is
also available on www.kenyalawreports.or.ke)

There is a stakeholders forum to discuss the ICT Bill
on Monday 16th July 2007 at the Safari Park Hotel
convene by the PS and Ministry of Information. Kindly
purpose to attend and raise issues of concern.

Section 149 in the 2006 (repeated in Section 134 of
published Bill 2007) is anti-FOI!!!!
 
In relation to offences is there a jurisprudential
reason to treat ICT offences differently and have them
outside the penal code - forgery is forgery, fraud is
fraud, theft is theft even with new technology. Are
e-commerce offences different? The issues of
recognition of electronic evidence are proposed to be
addressed in the Evidence Act by the Bill - Offences
should probably be addressed in the same way by
amending the Penal code not writing ICT Offences part
VIA.

So far we have only been able to look at the
provisions that relate to the regulator (CCK) media,
broadcasting, free expression and free flow of
information together with the legislative drafting
issues.

The Bill is largely concerned with licensing and
regulations and it puts all issues of information and
communication under one regulator. In our view this
may not achieve the objectives of the Bill as far as
enabling devt of ICT in Kenya and making as an ICT hub
is concerned. One of the participants, Dr. Mary
Muiruri  also shared that the e-transactions law
should be separate as is the case in countries that we
need to compete with e.g. Singapore. The ICT Bill as
is will not help us attract investors, BPOs - create
jobs etc yet it seriously threatens broadcasters and
freedom of media and expression for the people. (See
FYI separate communications on this issue - so we
don't appear to be fighting ICT devt in Kenya)

Regulation of broadcasting media is allowed as the
frequencies are a rare public good to be shared and
broadcasting media is also more pervasive than print
media - TVs and radios are in our sitting rooms but be
that as it may and we support the regulation as should
happen in a democratic society as per international
standards the punishments and penalties for any breach
must be proportional and not draconian - Loss of
Broadcasting License and Seizure of equipment
punishments and others in the Bill are far too much
especially as the legal safeguards are weak and the
independence of the all powerful CCK is questionable.
A quasi judicial body like CCK cannot have as wide
powers as the courts of law in meting out hefty
punishments prescribed by the Bill. The Bill is really
intent on creating crimes - is broadcasting
uncomfortable content criminal?

Putting together so many varied issues in one law not
only makes the law hard to read but it mixes up
principles and underpinning democratic ideals and
international standards. In the case of the
broadcasting there maybe need to have a separate
broadcasting law and an amendment of the KBC Act to
make it a proper public broadcaster with an
independent board and editorial independence.

We still need advise on other provisions of the Bill,
so please help in this. Further if you are aware of
any other critiques that have been done please share
them.

Something we also found interesting is the change of
the Bill from the Original Version of the
Communications Bill and The published Bill which has
various far reaching provisions that are not found in
the earlier Bill raising the question - why the
draconian sections were introduced especially 129, 130
and 131. It is interesting and worrying that Minister
in the Bill is very powerful and busy - as busy as the
regulator.

The Bill as we note in the memo threatens to bring
back sedition law days.
<ends>



       
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