[kictanet] [Fibre-for-africa] RE: The tables are turned

Thu Oct 25 21:47:30 EAT 2007

Hi Eric,

Unless containing illegalities or infringing on
others' rights, I believe the Law of Contact gives
agreements between qualified persons more weight than
regulatory intervention or government policy for that
matter. Regulatory intervention steps in when the
parties cannot agree among themselves first and where
the regulator cannot resolve a matter, then Supreme
courts step in and pick it from there. 

CCK helps resolve long-standing complaints or disputes
only after several direct resolution attempts and,
with respect to consumers, explores ways of assisting
consumers that opt for litigation.
http://www.cck.go.ke/consumer_center/ 

Business people know that by the time they leave court
rooms, they are forced to bask quite of their torn
underclothing in the open hence their preference to
seek low-key "quieter" regulator and arbitrators to
resolve their business competition kerfuffles.

Although I am yet to know where they are located (read
FOI),the government recently announced the formation
of an Office of Ombudsman (DAILY NATION 22/06/2007)
"to deal with public complaints" for alternative
dispute resolution - heralded as "an administrative
move by the President that is purely geared towards
addressing issues that have bedeviled Kenyans without
nowhere to turn to" by a member of our consumer
network.

Back to the issue at hand...

When disputants involve third parties, and the public
through media, obviously a deadlock or stalemate was
encountered somewhere breaking down their conflict
management process. Therefore, I find it inappropriate
to agree with Micheal Joseph and Peter on hushing up a
matter already in the public domain, unless they agree
and inform the public that they have both agreed to
resolve the issue through mutually agreed arbitration
and the choice of the arbitrator must not (or even be
seen to) be biased.

When Edith asked Michael Joseph to enlighten us on
those other issues, he said wished not to discuss in
view of (print) media rather his proffered arbitrator
and not burden regulator with the dispute. To me this
raises a concern whether his preferred arbitrator
could be considered unbiased or neutral considering
that the matter had reached the regulator height. He
appeared to advocate “reverse-driving”  and without
shedding light on the compelling ahead obstacle
necessitating this action.

Add to all of this mix blaming of the media
circumstances become even more suspect. If one has
nothing to hide in *any* dispute why shut out and
blame the media for printing the smoke (above the
fires).
Perhaps you understand why I appreciate professional
journalist predicaments.

<snip>
Those who equate journalism with such licensable
professions as law and medicine misunderstand the
nature of journalism. Journalism is founded on freedom
of expression. It is also an open book. There is no
need for licensing.

Every day is a licensing day for journalists because
they cannot hide their mistakes. There is an old
saying: "Doctors bury their mistakes, lawyers hang
them, but journalists put theirs on the front page."
http://www.nationmedia.com/dailynation/nmgcontententry.asp?premiumid=0&category_id=25&newsid=99397
<snip>

Either MJ enlightens us on undercurrents information
supporting his arguments or they agree to agree or
disagree through the press and what they intend to do
next... But meanwhile, are all entitled to speculate
on all sorts of most imaginative conspiracy theories. 

I suspect I did not rescue you Eric, but I hope this
adds something?

Alex

--- Eric Osiakwan <eric at afrispa.org> wrote:

> Dear Peter,
> 
> I also think this should be abitration after the two
> parties did not  
> agree between themselves but one of them prefered to
> take it to the  
> regulator whether rightly or wrongly but thats their
> choice. The  
> regulator can then ask them to go abitrate. In Ghana
> when a similar  
> situation happened between GT and IGH, the issue
> went up the  
> regulator and the regulator said, thier next line of
> call after they  
> could not agree was to abitrate and if abitration
> does not work then  
> they come to the regualtor and if the decision of
> the regulator does  
> not work then the courts comes in. Our regulations
> provide for such  
> progression but i dont know about yours, may be Alex
> G. can again  
> come to my rescue.
> 
> Your last issue boaders on dominate market share,
> now as far as i  
> know Kenya does not have competition regulation but
> ideally that  
> should take care of such growths in the market as it
> is in the EU. Am  
> just reading a story of Microsft surcumbing to that
> regulation in the  
> EU.
> 
> Eric here
> 
> 
> 
> On 23 Oct 2007, at 12:49, Peter Othino wrote:
> 
> > Hi Eric,
> >
> > I do agree Michael Joseph and the situation should
> be arbitration  
> > and not a
> > regulator handling commercial differences in the
> field.
> >
> > Looking at it on the reverse, the current Telkom
> Operation on their  
> > CDMA
> > platform they are no different from a GSM provider
> yet I believe the
> > licensing conditions were different this to me has
> no direct  
> > commercials but
> > a regulatory aspect but I do not remember it being
> handled despite  
> > concerns
> > raised. I do not believe that parties need to
> complain for  
> > regulation to be
> > effected as that would kill the whole concept and
> drive about self
> > regulation that is the ultimate desired position.
> >
> > Yet again if a provider gets powerful for it is
> position in the  
> > market I
> > believe it is part of the Matrix as this comes
> either as tangible or
> > intangible value adds above the rest associated
> with the service  
> > delivered.
> >
> > Thanks,
> >
> > Peter Othino
> >
> >
> > -----Original Message-----
> > From: Timothy Kasonde KASOLO
> [mailto:timothy at africonnect.co.zm]
> > Sent: Tuesday, October 23, 2007 12:08 PM
> > To: eadera at idrc.or.ke; APC - Private list for use
> by EASSY Workshop
> > Participants
> > Cc: APC - Private list for use by EASSY Workshop
> Participants;  
> > KICTAnet ICT
> > Policy Discussions
> > Subject: RE: [Fibre-for-africa] RE: [kictanet] The
> tables are turned
> >
> > Hello,
> > I think the media needs to be balancing the
> articles ....
> >
> > Timothy
> >
> >> Michael,
> >>
> >> It would help to hear your side of the story so
> we can all be  
> >> informed.
> >>
> >> We unfortunately do not have other sources of
> information at this  
> >> point
> >> other than the media.
> >>
> >> Looking forward,
> >>
> >> Edith
> >>
> >> -original message-
> >> Subject: [Fibre-for-africa] RE: [kictanet] The
> tables are turned
> >> From: "Michael Joseph" <MJoseph at Safaricom.co.ke>
> >> Date: 23/10/2007 10:53 am
> >>
> >> What you have not mentioned whether the complaint
> had any merit and
> >> whether the Parties could not have resolved it
> between themselves  
> >> rather
> >> than relying on the CCK to mediate every
> commercial dispute. There is
> >> much more to this than just the one-sided view
> quoted by the media  
> >> but
> >> we have chosen not to try to resolve our disputes
> through the media.
> >>
> >>
> >>
> >> Regards
> >>
> >>
> >>
> >> Michael
> >>
> >>
> >>
> >> CEO
> >>
> >> Safaricom Limited
> >>
> >>
> >>
> >> ________________________________
> >>
> >> From:
>
kictanet-bounces+mjoseph=safaricom.co.ke at lists.kictanet.or.ke
> >> [mailto:kictanet-bounces 
> >> +mjoseph=safaricom.co.ke at lists.kictanet.or.ke]
> >> On Behalf Of Eric Osiakwan
> >> Sent: Sunday, October 21, 2007 12:27 AM
> >> To: Michael Joseph
> >> Cc: APC - Private list for use by EASSY Workshop
> Participants;  
> >> KICTAnet
> >> ICT Policy Discussions
> >> Subject: [kictanet] The tables are turned
> >>
> >>
> >>
> >> Dear All,
> >>
> >>
> >>
> >> We are really living in interesting times
> especially in the ICT  
> >> industry
> >> because a few years ago, it was the mobile
> operators and ISPs who  
> >> would
> >> be knocking on the doors of the regulator
> complaining and sometimes
> >> weeping at the anti-competitive practices of the
> imcumbent PTT  
> >> towards
> >> them.
> >>
> >>
> >>
> >> Today the tables have turned and in Kenya as per
> the story below,  
> >> Telkom
> >> Kenya is rather asking CCK to put Safaricom in
> check because they are
> >> acting anti-competitively on the SMS platform
> against their CDMA
> >> operation. Five years ago, this would have being
> an "incorrect  
> >> prophesy"
> >> but it has happen sooner than all would have
> expected.
> >>
> >>
> >>
> 
=== message truncated ===>
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