[kictanet] [ke-internetusers] Kenya communications (amendment)Bill: Is media overacting?

Mon Dec 15 12:06:14 EAT 2008

Comments from a leading Lawyer.
Hi Bill,

It appears that the PS may be right. There is a legal and procedural
complication. Let us go through the sequence of events:

1. The Kenya Communications Act, No. 2 of 1998, was enacted in 1998.
This was by the KANU government. Section 88 of the Act provides for
"Powers on occurrence of emergency". This gave the Minister for
Internal Security the power to take temporary possession of any
telecommunication apparatus in the event of a declaration of any
public emergency or in the interest of public safety and tranquillity.

2. On 18th July 2008 the Government published the Kenya Communication
(Amendment) Bill, 2008 . The Memorandum of objects and reasons states
that the principal object of the Bill is to make certain necessary
amendments to the Kenya Communcations Act, No. 2 of 1998. The proposed
amendments are to help streamline and introduce regulatory provisions
in electronic transactions and broadcasting which are presently weak.
An example would be to make theft of electronic data criminal as at
the moment theft is only defined as the unlawful taking of goods and
livestock. The Bill merely sought to bring the Act up to date with
technological developments in IT and to strengthen the Act in areas
where it is weak.

3. The Parliamentary Departmental Committee on Energy, Communications
and Public Works considered the Bill and received representations from
various parties. The Committee made recommendations for various
amendments to the Bill.

4. One of the Committee's recommendations was that the Bill be amended
by inserting a new clause deleting section 88 of the Act.

Please note that section 88 of the Act already exists. The Bill as
introduced by the Minister did not seek to delete section 88 of the
Act. The Committee however proposed that deletion by seeking to amend
the Bill.

5. Parliament rejected this proposed amendment of the Bill. Parliament
passed the rest of the Bill as proposed by the Minister and with the
other minor amendments that had been agreed.

6. The Bill shall now be forwarded to the President for his assent.

7. Section 46 of the Constitution provides that when a Bill had been
passed by the National Assembly it shall be forwarded to the President
for his assent. Where the President refuses to assent to a Bill he
shall, within fourteen days of the refusal, submit a memorandum to the
Speaker indicating the specific provisions of the Bill which in his
opinion should be reconsidered by the National Assembly including his
recommendations for amendments.

8. The Bill as forwarded to the President shall NOT contain the
Committee's proposal to delete section 88 of the Kenya Communication
Act. There shall therefore be no provision relating to section 88 in
the Bill for the President to send back to Parliament. Thus it would
appear that the only way to delete section 88 is to publish a
miscelleneous amendment Bill.

Anyway, if the intention is to delete section 88 of the Act I do not
see the problem with publishing a fresh Kenya Communications (Further
Amendment) Bill, 2008, to that effect.  This would now be a short Bill
that can be drafted within a couple of hours and published by Friday
this week or even earlier. The Minister can then explain the
complication relating to the President rejecting the Bill and the fact
that the new Bill shall take care of section 88.

I find no precedent for a Further Amendment Bill but I also find no
law that prevents the publication of one. The standing orders prevent
the publication of Bill for a period of six months after Parliament
has rejected it. It may therefore arise as a matter in issue if a
Member questions why a proposal rejected by Parliament is being
brought back before six months have lapsed. But that is a debateble
issue as this would not be the re-introducation of a Bill but a
Further Amendment Bill.

Please note that the Bill made no mention of section 88. Indeed the
section has been in existence for ten years and was only receiving
sporadic criticism till now. The Media took advantage of the Bill's
publication to push for the deletion of section 88 and have now
escalated their demand for its deletion.

On 12/15/08, n_macharia at yahoo.co.uk <n_macharia at yahoo.co.uk> wrote:
> Dear Dr Ndemo,
> This is the most honable thing to do. Members need to contribute from a
> point of knowlewdge. Its unfortunate kenyans stand to lose the gains we have
> so far made.
>
> What disturbs me is that we aren't negotiating for freedom of expression- a
> right to all kenyans and the human race! But kenyans are being taken for
> granted to fight for MOA. The truth is that the same journalists are
> exploited n conned of their professional rights at the expense of keeping a
> job. All other professions cherish regulation to guarantee that individual
> as well as group, communities n society's are freedom and rights  protected
> and that the quality of life is continuously being improved.
>
> Publish the entire bill to elicit unbiased n kwoledgeable debate.
> My own opinion.
> Sent from my BlackBerry(R)
>
> -----Original Message-----
> From: bitange at jambo.co.ke
>
> Date: Mon, 15 Dec 2008 10:25:40
> To: <n_macharia at yahoo.co.uk>
> Cc: KICTAnet ICT Policy Discussions<kictanet at lists.kictanet.or.ke>
> Subject: Re: [kictanet] [ke-internetusers] Kenya communications (amendment)
>  Bill: Is media overacting?
>
>
> Dear Edith,
> We are uploading the published bill in the next one hour.  It will indeed
> help if everybody reads it before they make any comments.  I would want
> anybody to point any section in the published ammendment that limits press
> freedom.  You participated in most of our early interactions and the
> intent on the broadcast section was very well understood - to introduce
> proper regulatory mechanism.
>
> My friend Kaikai wants me to prove that in the past few days media has
> been propagating violence.  Most of you saw their plan of action which
> lawyers tell me amounts to serous offence.
>
>
> Ndemo.
>
>
>
>
>
>> It worries me that the masses are taking sides depending on what others
>> say, rather than to read the bill themselves. Is there a "popular version"
>> of the bill for ordinary Kenyans? Can we get a copy of the current bill or
>> be pointed to where the latest version can be downloaded? This information
>> is not necessarily within the public domain.
>>
>> It is high time we do not leave our future in the hands of afew, but let
>> everyone be educated about the issues at hand so they can engage from an
>> informed standpoint - we need an OPEN parliament. We have enough digital
>> tools to allow interaction between parliament and the governed.
>>
>> Edith
>>
>>________________________________________
>> From: kictanet-bounces+eadera=idrc.or.ke at lists.kictanet.or.ke
>> [kictanet-bounces+eadera=idrc.or.ke at lists.kictanet.or.ke] On Behalf Of
>> alice [alice at apc.org]
>> Sent: 14 December 2008 19:40
>> To: Edith Adera
>> Cc: KICTAnet ICT Policy Discussions
>> Subject: Re: [kictanet] [ke-internetusers] Kenya communications
>> (amendment) Bill: Is media overacting?
>>
>> David,
>>
>> Perhaps the media could start by reporting accurately. Some of the
>> sections the media find so offensive already exist in the 1998
>> communications act. So why not present the  big full  picture to all and
>> especially the public?
>>
>>
>> alice
>>
>> (Views expressed are personal and not a reflection of any of the
>> organizations I am affiliated with)
>>
>>
>>
>> dmakali at yahoo.com wrote:
>>> Wainaina
>>> I can't argue against your sources but am certain that stage of black
>>> out for mps hasn't been reached at all. In fact we are meeting tue to
>>> evaluate exactly the import of the passage of that bill and bring every1
>>> on the same page.
>>> Of course blacking out not just some 25 mps but all is very much a
>>> possible line of action. And for good reason- these mps did not consider
>>> ANY of the changes we proposed. That gang approach doesn't lend itself
>>> to decent engagement frm the media. They have abused their power and
>>> ignored our views, not reasonably but glibly.
>>> I am totally in agrment with thoz who argue the broadcast media needs
>>> regulation, because it is true. I don't even share some defensive views
>>> about ownership held by moa- I see no value in nmg getting more radio or
>>> tv frequencies for eg coz they already have too many, or royal media
>>> having all thoz frequencies. Its simply obscene. But that is a diff
>>> story frm govt getting into micro management of media conent or , the
>>> minister having power to raid and confiscate equipment or occupy or take
>>> over a media house. There was no emergency wen michuki used mercenaries
>>> to raid standard.
>>> Plus the ethical issues being raised about content can and are already
>>> addressed under the media act. The worst thing you want is to invite
>>> govt fiat into content matters. You will rue the day you get a
>>> dictatorial govt. Examples are many.
>>> Similarly, how do you allow the minister to give directions to a
>>> commission that's supposd to be independent? He shud take its advice not
>>> rubber stamp his decisions. And how do you have a commission appointed
>>> solely by the minister without any guidelines? Criteria to follow?
>>> Finally did you see the clause about kbc? Nothing about its roles, and
>>> obligations? Even the principal act is beta!
>>> Well, wainaina and other kictanets, it would be useful to speak to these
>>> issues even as you condemn the media for obviously lopsided reporting
>>> and wailing.
>>> David
>>>
>>> Sent from my BlackBerry(R) wireless device
>>>
>>> -----Original Message-----
>>> From: "Wainaina Mungai" <wainaina at madeinkenya.org>
>>>
>>> Date: Sun, 14 Dec 2008 17:53:55
>>> To: <dmakali at yahoo.com>; KICTAnet ICT Policy
>>> Discussions<kictanet at lists.kictanet.or.ke>
>>> Subject: Re: [ke-internetusers] Kenya communications (amendment) Bill:
>>> Is media overacting?
>>>
>>>
>>> David,
>>>
>>> I am very much involved the media and you & I know that it was agreed
>>> that the Action Plan includes a "blackout to..." as well as all the
>>> issues I indicated.The point is clear. I have told the truth relating
>>> to the content of the Action Plan.
>>>
>>> The question of execution is separate. Ndemo having been on K24 is
>>> does not change much but it is not in line with the Action
>>> Plan....meaning, we need to complement K24 for that step.
>>>
>>> Let's be honest in our submissions especially concerning such
>>> revelations.
>>>
>>> Wainaina
>>>
>>> On 12/14/08, dmakali at yahoo.com <dmakali at yahoo.com> wrote:
>>>
>>>> That's not true. You have obviously exaggerated in trying to put across
>>>> your
>>>> cheap propaganda. Ndemo was on k24 this morning and he was of course
>>>> not
>>>> opposing the bill. Plus, you should ask yourself, who has come out to
>>>> support the bill and not been given airtime.
>>>> Yes, the media is campaigning, but it has not yet agreed or employed
>>>> any of
>>>> the strategies you have listed. Their time is coming.  And we don't
>>>> need to
>>>> go to previous regimes to show brutal attacks against the media. The
>>>> worst
>>>> have taken place under the current regime!
>>>> You have more to be grateful than disgusted with the media. Be just a
>>>> little
>>>> more reflective and considerate otherwise your diabolical hatred of the
>>>> media lacks foundation.
>>>> David
>>>> Sent from my BlackBerry(R) wireless device
>>>>
>>>> -----Original Message-----
>>>> From: "Wainaina Mungai" <wainaina at madeinkenya.org>
>>>>
>>>> Date: Sun, 14 Dec 2008 17:08:09
>>>> To: <dmakali at yahoo.com>
>>>> Cc: KICTAnet ICT Policy Discussions<kictanet at lists.kictanet.or.ke>
>>>> Subject: Re: [kictanet] [ke-internetusers] Kenya communications
>>>> (amendment)
>>>>      Bill: Is media overacting?
>>>>
>>>>
>>>> The truth is that the "supporters" you see on TV, hear on radio, read
>>>> in papers are not by accident. The Media Owners Association (MoA)
>>>> crafted a campaign strategy that includes the "media blackout to all
>>>> MPs who supported the Bill and The Ministry of Information &
>>>> Communications".
>>>>
>>>> According to persons privy to the media campaign strategy, we have a
>>>> big problem here and it's about time Kenyans were told the objective
>>>> truth. Unfortunately, the people who own the media houses are
>>>> determined to use every possible means to ensure the Bill is not
>>>> signed. You will not hear a supporter of the Bill being given
>>>> coverage.
>>>>
>>>> Why?
>>>>
>>>> The strategy is clearly not intended to yield an objective result. The
>>>> intention is to shape public opinion even through biased reporting.
>>>> The strategy includes:
>>>>
>>>> 1. Ensure President dioesn't sign the Bill, by publicly petitioning
>>>> him.
>>>> 2. Take advantage of Jamhuri Day to show images of raids conducted by
>>>> previous regimes.
>>>> 3. Run a media campaign that includes 'same headline' in all papers
>>>> and similar headlines on electronic media.
>>>> 4. Shape public opinion through campains and show that the Bill is
>>>> unconstitutional...etc etc
>>>> 5. Blackout all supporters of the Bill, Ministry & only invite civil
>>>> society players who support the interests of the media. Keep watching
>>>> and you'll notice the biased reporting.
>>>> 6. The coverage of the issue in the weekend papers (circulation) is
>>>> also part of the strategy. This will not stop until the President
>>>> yields to the Media's agenda.
>>>>
>>>> The media has the right to petition the President but the problem with
>>>> their campaign is that Media Owners have actually agreed not to cover
>>>> the issue objectively. They have conspired to shape public opinion by
>>>> all possible means including excluding all those who have a different
>>>> opinion.
>>>>
>>>> In doing so, they demonstrate the need for legislative regulation. The
>>>> nation is now at the mercy of the media and the public will only be
>>>> fed with one side of the story.
>>>>
>>>> Over to you.
>>>> Wainaina
>>>>
>>>>
>>>> On 12/14/08, Kinuthia Muchane <muchanek at gmail.com> wrote:
>>>>
>>>>> Habari,
>>>>> Maybe the media is overacting, maybe the the MPs are wrong... But one
>>>>> interesting thing about this issue is the timidity of the MPs, to
>>>>> begin
>>>>> with, in the news all I am hearing are our dear elected
>>>>> representatives
>>>>> vowing their undying support for all sorts of freedom, including that
>>>>> of
>>>>> Press, so my question is, isn't there one, single MP who supported
>>>>> passing of the Bill who can come out in defence of his or her stand?
>>>>> Or
>>>>> is it because they always pander to the Press, they do not want to be
>>>>> seen in 'bad' light .
>>>>>
>>>>> On the other hand, most of us take what we hear on the radio or watch
>>>>> on
>>>>> TV as gospel truth, and the unfortunate fact of life is that the
>>>>> majority of us have no other source of  information, or do not seek
>>>>> other
>>>>> avenues of
>>>>> getting information, a fact very well
>>>>> known by members of the so called "Fourth Estate". So when they drench
>>>>> us with "details" about the dangers of the bill's amendment no matter
>>>>> how
>>>>> skewed their
>>>>> opinion is, we will believe them hook, line and sinker!
>>>>> If you ask me, in a country like ours with a very shaky social,
>>>>> political and economic foundation, these merchants of
>>>>> "information" should be very closely and regularly monitored, a Radio
>>>>> Mille Collines can happen here very easily...
>>>>> In any case, ain't all these media 'houses' just commercial
>>>>> enterprises
>>>>> out to make a tidy profit?
>>>>>
>>>>> Kinuthia...
>>>>>
>>>>>
>>>>>
>>>>>_______________________________________________
>>>>> ke-internetusers mailing list
>>>>> ke-internetusers at bdix.net
>>>>> http://www.bdix.net/mailman/listinfo/ke-internetusers
>>>>>
>>>>>
>>>> --
>>>> Sent from my mobile device
>>>>
>>>> ---
>>>> http://www.bungesms.com
>>>>
>>>> TWITTER - http://www.twitter.com/bungesms
>>>>
>>>> KABISSA.org -
>>>> http://www.kabissa.org/about/news/member-spotlight-made-kenya-network
>>>>
>>>> KAMPALA Workshop presentation -
>>>> http://m4d.kcl.co.ug/sites/default/files/presentations/BungeSMS_MadeinKenyaNetwork.pdf
>>>>
>>>>_______________________________________________
>>>> kictanet mailing list
>>>> kictanet at lists.kictanet.or.ke
>>>> http://lists.kictanet.or.ke/mailman/listinfo/kictanet
>>>>
>>>> This message was sent to: dmakali at yahoo.com
>>>> Unsubscribe or change your options at
>>>> http://lists.kictanet.or.ke/mailman/options/kictanet/dmakali%40yahoo.com
>>>>
>>>>
>>>
>>>
>>
>>
>>
>>_______________________________________________
>> kictanet mailing list
>> kictanet at lists.kictanet.or.ke
>> http://lists.kictanet.or.ke/mailman/listinfo/kictanet
>>
>> This message was sent to: eadera at idrc.or.ke
>> Unsubscribe or change your options at
>> http://lists.kictanet.or.ke/mailman/options/kictanet/eadera%40idrc.or.ke
>>_______________________________________________
>> kictanet mailing list
>> kictanet at lists.kictanet.or.ke
>> http://lists.kictanet.or.ke/mailman/listinfo/kictanet
>>
>> This message was sent to: bitange at jambo.co.ke
>> Unsubscribe or change your options at
>> http://lists.kictanet.or.ke/mailman/options/kictanet/bitange%40jambo.co.ke
>>
>> ----------------------------------------------
>> This message has been scanned for viruses and
>> dangerous content by Jambo MailScanner, and is
>> believed to be clean.
>> ---------------------------------------------
>> "easy access to the world"
>>
>>
>
>
>
> ----------------------------------------------
> This message has been scanned for viruses and
> dangerous content by Jambo MailScanner, and is
> believed to be clean.
> ---------------------------------------------
> "easy access to the world"
>
>
> _______________________________________________
> kictanet mailing list
> kictanet at lists.kictanet.or.ke
> http://lists.kictanet.or.ke/mailman/listinfo/kictanet
>
> This message was sent to: n_macharia at yahoo.co.uk
> Unsubscribe or change your options at
> http://lists.kictanet.or.ke/mailman/options/kictanet/n_macharia%40yahoo.co.uk
> _______________________________________________
> kictanet mailing list
> kictanet at lists.kictanet.or.ke
> http://lists.kictanet.or.ke/mailman/listinfo/kictanet
>
> This message was sent to: billkagai at gmail.com
> Unsubscribe or change your options at
> http://lists.kictanet.or.ke/mailman/options/kictanet/billkagai%40gmail.com
>

-- 
Bildad Kagai
MD - MediaCorp Limited
Nairobi Stock Exchange Authorised Information Vendor
Suite B2, Tetu Court, State House Avenue
P. O. Box 20311 - 00200
Nairobi, Kenya
Tel. 254 20 272 8332
Fax. Rendered Obsolete
S - 1°17'13.8"
E - 36°48'22.7"
www.mediacorp.co.ke
---