[kictanet] The ICT Bill, Freedom, and Democracy
Mike Theuri
mike.theuri at gmail.com
Tue Dec 16 22:20:04 EAT 2008
Crystal,
Thank you for sharing the below. Articles 19 and 20 are appreciably anchored
in the constitution under sections 79 and 80. Nearly every
independent nation in today's world has laws that define states of emergency
for there will be events that demand such emergencies be declared so as to
preserve public order and life.
To evaluate the potential for arbitrary declarations, we should review how
many times and under what circumstances "states of emergency" have been
declared in the last 45 years. If we contrasted this with the case of Egypt
which has been under a state of emergency since 1981
http://www.hrw.org/en/news/2008/05/27/egypt-extending-state-emergency-violates-rights
we
would be appreciative that there have been no repetitive abuses of such
declarations in Kenya.
The constitution requires laws that are inconsistent with the mentioned
sections to make provisions that are reasonable in the interest of "defence,
public safety, public order, public morality or public health". If section
88 is unreasonable then it could very easily be:
1) Declared unconstitutional through the courts.
2) Amended to add safeguards against abuse.
3) Deleted in totality
Options 2 and 3 require legislative action while option 1 requires a truly
independent judiciary. Option 3 raises the question of what ought to be
specifically done about rogue elements that endanger public safety and order
were the section to be deleted. A past raid has been cited as one of the
driving reasons for deletion, such raids are an abuse not a proper
application of the law hence the need for option 2 above and an independent,
well functioning judiciary to remedy or deter the same.
Were there to be a Kenyan Radio Mille Collines broadcasting content that
endangers public life, what solution anchored in law do the proponents for
the deletion of section 88 suggest could be used to reasonably prevent such
elements from doing so? It seems that this is an issue the proponents are
apparently not keen, willing or able to answer.
Revisiting the declaration of states of emergencies. The Preservation of
Public Security Act offers more stringent measures that would make section
88 appear saintly. Does this imply that the media is comfortable with the
more stringent measures of the PPS act? Deletion of section 88 would still
leave room for adhoc potentially more stringent section 88's to be imposed
under the PPS. It would be best that such provisions are not left open ended
as to the extent they can be applied and by whom.
4.(1) Where an order under section 85 of the Constitution (which relates to
the bringing into operation of this Part) has been made by the President,
and so long as the order is in force, it shall be lawful for the President,
to the extent to which this Part is brought into operation and subject to
the Constitution, to make regulations for the preservation of public
security.
2) Regulations for the preservation of public security may make provision
for -
(d) the censorship, control or prohibition of the communication of any
information, or of any means of communicating or of recording ideas or
information, including any publication or document, and the prevention of
the dissemination of false reports;
On Mon, Dec 15, 2008 at 8:59 AM, Crystal Watley
<crystal at voicesofafrica.org>wrote:
> A free and fair media is a necessary element in any democracy. The press is
> the watchdog of the government. They ensure that the truth be told. The
> government should have no power in a democracy to control news outlets. If
> the bill is signed the government is essentially stealing the voice of the
> people so they will be able to declare a "state of emergency" when it is
> convenient for them. Giving the government a gag hold on the media's ability
> to report the truth. The Universal Declaration of Human Rights written 10
> December 1948 contains two articles which are in direct opposition to
> Article 88
> *Article 19.*
>
> Everyone has the right to freedom of opinion and expression; this right
> includes freedom to hold opinions without interference and to seek, receive
> and impart information and ideas through any media and regardless of
> frontiers.
>
> *Article 20.*
>
> (1) Everyone has the right to freedom of peaceful assembly and
> association.
>
> (2) No one may be compelled to belong to an association.
>
>
> The government already bears the right to legislate the process of
> broadcasting and many aspects of the bill are enlightened and will serve us
> well in the future, but it is necessary that it is not passed in its current
> form. As human beings and as Kenyan citizens we are born with the right to
> voice our opinions, thoughts, feelings, and demands.
>
> Is Kenya is a democracy in the Liberal sense? Then it must be bound by
> the tenets of Jean-Jacques Rousseau, one of the philosophical fathers of the
> legislative democracy. The current constitution and rule of law is an
> altered copy of the democratic system of government in the United Kingdom
> whose constitutions and political thought stem in part from his writings. In
> the Social Contract by Rousseau he states that "Nothing is more dangerous
> than influence of private interests on public affairs and abuse of the laws
> of the government is LESS evil than the corruption of the legislator, which
> is the infallible result of the pursuit of private interests." He continues
> that "there is no government so subject to civil wars and internal
> agitations then the democratic or popular, because there is none which tends
> so strongly and so constantly to change its form, one who demands more
> vigilance and courage to be maintained in its own form. It is especially in
> this constitution that the citizen should arm himself with strength and
> steadfastness, and every day of his life from the bottom of his heart what a
> virtuous Palatine said in the "Diet of Poland"; Malo Periculosam libertatem
> quam quietum seritium." This translates into English as I prefer a perilous
> freedom to a peaceful slavery. In Swahili - heri kupigania uhuru kuliko
> amani utumuani!
>
> Crystal Kigoni
>
> Voices of Africa for Sustainable Development
>
>
>
> 2008/12/15 Moto Baridi <motobaridi at motobaridi.com>
>
>> next thing, they'll require ISP's to block sites that include any
>> "offensive" text or image.
>> Did you just search for "paedophile" in Wikipedia?
>> *"Sorry. The page you requested has been deemed inappropriate by
>> parliament and shall not be displayed. If you have any queries, please
>> contact your MP."*
>> then they'll storm your house and confiscate those Nigerian movies because
>> of that barely-visible 1.2 sec bedroom scene.
>> this is the first step on the slippery slope towards *gov't-sponsored* net
>> censorship.
>> unfortunately, even where it has been implemented by people who understand
>> much
>> more about these things,it has failed miserably in ALL instances.
>> when will people ever learn from the painful experiences of others (e.g.
>> Australia)??
>>
>> yours cynically,
>> [motobaridi]
>> [carpe noctem]
>>
>> _______________________________________________
>> skunkworks mailing list
>> skunkworks at my.co.ke
>> http://ole.kenic.or.ke/mailman/listinfo/skunkworks
>> Blog http://skunkworks-ke.blogspot.com
>> Beta Blog http://blog.my.co.ke
>> Get Skunkworks RSS Feeds: http://www.jahazi.com/rss/
>>
>
>
>
> --
> Crystal "Naliaka" Watley
> Voices of Africa
> crystal at voicesofafrica.org
> http://www.voicesofafrica.org/
>
> "You must be the change you wish to see" - Gandhi
>
> _______________________________________________
> kictanet mailing list
> kictanet at lists.kictanet.or.ke
> http://lists.kictanet.or.ke/mailman/listinfo/kictanet
>
> This message was sent to: mike.theuri at gmail.com
> Unsubscribe or change your options at
> http://lists.kictanet.or.ke/mailman/options/kictanet/mike.theuri%40gmail.com
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://lists.kictanet.or.ke/pipermail/kictanet/attachments/20081216/65b18f48/attachment.htm>
More information about the KICTANet
mailing list