[kictanet] Comments on Bill Posted Online

Thu Dec 18 17:05:53 EAT 2008

Good points

Word has it that the live debate @ NTV has been cancelled.

Could Ndemo confirm this for us?

Is it true that the Minister pulled out?

Wainaina

On Thu, Dec 18, 2008 at 4:48 PM, Monica Kerretts-Makau
<mkmakau at yahoo.co.uk>wrote:

>  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 "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?
> >
> > 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?
> >
> >  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?
> >
> > Lets remember that these laws will not only serve today but future
> generations
> > with different leaders.
> >
> > Edith
> > _______________________________________________
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>
>
> ..............................
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