[kictanet] Comments on Bill Posted Online

Thu Dec 18 16:48:30 EAT 2008

I probably come in late to the foray of the discussion,  but am not in the
country and could not get my hands on the right copy. Thanks for posting it
online Dr. Ndemo and team.  My comments to the bill and as also assisted a
legal friend, 

1. This is not a media bill as many have led everyone to believe.  It is a
Kenya Communications (Amendment) Bill 2008.

2. The bill proposes to amend the Kenya Communications Act 1998 as hereunder
(this is in a nutshell of course):

1.      Enhancing the regulatory mandate by allowing for the regulation of
broadcasting content (this covers only electronic media and not print media)

2.      Providing for the recognition and licensing of a ccTLD registrar

3.      Providing recognition for electronic transactions including
e-contracting, digital signatures as well as propose amendments to existing
legislation e.g. the evidence act allowing for submission of digital copies
evidence, recognition of e-crimes in the penal code etc.

The bill mentions nothing, as far as the government shutting down media
freedoms is concerned.

What the media are up in arms about and misleading every right-thinking
Kenyan is the provisions of the current section 88 of the Kenya
Communications Act, which provides for the powers of the minister for
internal security on the occurrence of any public emergency or in the
interest of public safety and tranquility.

The section allows the minister to take temporary possession of any
telecommunications or radio communications apparatus on the occurrence of
such an emergency. This action by the Minister is only allowed pending the
existence of the emergency. It also provides that any person aggrieved by
the actions of the minister herein may appeal to the High Court and obtain
compensation the refrom.

So the draft amendment bill does not mention anything about section 88, i.e..
it is not being amended.

THE QUESTION WE NEED TO ASK IS DO WE WANT THE CURRENT SECTION 88 IN THE
CURRENT COMMUNICATIONS ACT INCLUDED IN THE COMMUNICAITONS AMMENDED BILL? IF
SO, SHOULD SECTION 88 BE DELETED OR CHANGED?

Of course the debate as to whether it should be  deleted is ongoing, and the
media are no exemption. But this is a saving provision of any communication
regulation legislation to allow Government to take steps to deal effectively
with the emergency or alternatively stop such networks being used incase of
an insurgency in a country etc. (No doubt of course the debate rages on
because history has evidenced the tendencies/choices made by African
governments)

What is evident is that there is a notion that the current communications
amendment bill includes section 88, which currently is in the communications
Act NOT THE CURRENT COMMUNICATIONS AMMENDMENT BILL.

I agree with a live television broadcast if only to explain what it is  and
what it is not AND probably allow the debate to really take place country
wide as it should have prior to it going to parliament.

PS: (I hope its aired on NTV OR KTN for those of us not in the country and
can only access it via DSTV NTV OR KTN).

Best regards,

Dr. Monica Kerretts-Makau

On 16/12/08 2:22 AM, "Edith Adera" <eadera at idrc.or.ke> 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 ³our right to know²?
> 
> I¹ve carefully read through these sections of the bill and have some comments:
> 
> 1. Apart from the gender Insensitivity of this clause ³46Q b) that person
> provides broadcasting services in an area for which HE is not licensed to
> broadcast;², I¹ve some substantive comments here below:
> 
> 2. Section ³46K 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
> ³anything that may be prescribed² by the Minister  given our past, what are
> the implications?. who makes regulation? Minister or Regulator?
> 
> 3. section ³46H (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.²
> 
> Comment  might this limit creativity and public opinion type programming that
> allows free speech?
> 
>  I¹ve concerns about this section below:
> 
> 4. Section ³88.(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.²
> 
> Comment: what constitutes ³interest of public safety and tranquillity²  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 ³right to know² and the subsequent threats
> of prosecution did not make things any better. What are the chances of abuse
> in this clause?
> 
> Lets remember that these laws will not only serve today but future generations
> with different leaders.
> 
> Edith
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