[kictanet] Comments on Bill Posted Online

[Eric M.K Osiakwan]

Dr. ndemo, if you may, i would insert my comments under Edith's below;

On 16 Dec 2008, at 02:22, Edith Adera wrote:

> Dr Ndemo,
>
> Thanks for posting excerpts of the bill online (sections 46 and  
> 88). We should actually have the FULL version of the bill (as  
> presented to parliament) available online, although this would be  
> accessible to the privileged with Internet access how about the  
> masses? What happened to “our right to know”?
>
> I’ve carefully read through these sections of the bill and have  
> some comments:
>
> 1. Apart from the gender Insensitivity of this clause “46Q b) that  
> person provides broadcasting services in an area for which HE is  
> not licensed to broadcast;”, I’ve some substantive comments here  
> below:
>
> 2. Section “46K The Minister may, in consultation with the  
> Commission, make regulations generally with respect to all  
> broadcasting services and without prejudice to the generality of  
> the foregoing, with respect to- (c) mandating the carriage of  
> content, in keeping with public interest obligations, across  
> licensed broadcasting services; (d) prescribing anything that may  
> be prescribed under this Part.
>
> Comment: I worry about the unspecified powers to prescribe content  
> and “anything that may be prescribed” by the Minister – given our  
> past, what are the implications?. who makes regulation? Minister or  
> Regulator?
1. I fear that it is the Minister's perogtive to make regulations,  
with no offense to the sitting minister but thats very dangerous. We  
have all agreed that the making of policy and instituion of  
regulations MUST be consultative involving all the necessary  
stakeholders. More importantly, such must also consult with  
"specialise knowledge" in that field of the policy or regulation.

2. The fact that Minister "MAY" consult the regulator is not only  
insufficient but autocratic, where did democracy go? (Please excuse  
my expression).

3. "mandating the carriage of content" - now we all know that  
technology is advancing at the speed of light so for the minister to  
have something to do with the medium fo delivery can be counter  
productive.

>
> 3. section “46H (1) The Commission shall have the power to set  
> standards for the manner, time, and type of programmes to be  
> broadcast by licensees under this Act.”
>
> Comment – might this limit creativity and public opinion type  
> programming that allows free speech?
1. Commissions dont set standards, standards are developed through  
consultative processes and in this case powers arrogated to the  
commission is almost limitless. May be you want to discribe how this  
standards are set?

>
>  I’ve concerns about this section below:
>
> 4. Section “88.(1) On the declaration of any public emergency or in  
> the interest of public safety and tranquility, the Minister for the  
> time being responsible for Internal Security may, by order in  
> writing, direct any officer duly authorized in that behalf, to take  
> temporary possession of any telecommunication apparatus or any  
> radio communication station or apparatus within Kenya, and –
> (b) in the case of telecommunication, that any communication within  
> Kenya from any person or class of persons relating to any  
> particular subject shall be intercepted and disclosed to such  
> person as may be specified in the direction;
> (c) in the case of postal services, that any postal article or  
> class or description or postal article in the course of  
> transmission by post within Kenya shall be intercepted or detained  
> or shall be delivered to any officer mentioned in the order or  
> shall be disposed of in such manner as the Minister may direct.”
>
> Comment: what constitutes “interest of public safety and  
> tranquillity” – this is subject to abuse and personal discretion.  
> It worries me that free speech could be limited and privacy  
> preached on any subject – e.g. complaining about high fuel costs,  
> food crisis, impunity etc etc. I do not know about you, but the  
> last ban on live coverage created a sense of personal insecurity,  
> isolation and denied persons their “right to know” and the  
> subsequent threats of prosecution did not make things any better.  
> What are the chances of abuse in this clause?
1. Why is the first reaction, "to take temporary possession of any  
telecommunication apparatus or any readio communication station" and  
not warn in writing or some form or any other "civilised" form of  
curtailing?

Eric here

>
> Lets remember that these laws will not only serve today but future  
> generations with different leaders.
>
> Edith
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Eric M.K Osiakwan
Director
Internet Research
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emko at internetresearch.com.gh
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