[kictanet] Legal Opinion by Haron Ndubi

[Bill Kagai]

*
A LEGAL OPINION ON THE LEGISLATIVE PROBITY AND PROCEDURE FOR THE KENYA
COMMUNICATIONS (AMENDMENT) BILL 2008.*

*For Kictanet through Mediacorp*

*By Haron M Ndubi, Advocate*

The Kenya Communications (Amendment) Bill 2008 was introduced by the
government through the minister for Information to parliament. The object of
the new amendment is found primarily in both the preamble and the memorandum
of Objects and Reason explaining the Bill.

The preamble is herewith reproduced:

   *  "….An ACT of Parliament to amend the Kenya Communications Act, 1998,
to make minor amendments to the statute law, and for connected purposes"*

The long title of the 1998 Act provides thus:

    *"….to facilitate the development of the information and communications
sector (including broadcasting, multimedia, telecommunications and postal
services) and electronic commerce*"

Generally speaking and found in the memorandum of objects and reasons, the
Bill proposes to and indeed does affect three major sectors.

1.       Communications

2.       E Commerce

3.       Media and Broadcasting

4.       Criminal and evidence  law

5.       (Possibly inadvertently, the Constitution of Kenya).


The objects proposing to bring developments in technology within the law so
as to provide for investments in technology and to acknowledge and deal with
cybercrime can hardly be faulted.

Actually this has been long in coming. However, one needs to look into the
cause(s) of the public and loud disquiet that has characterized debate
leading to the petitions to the President to refuse to sign the Bill and
return it to parliament as provided for under section 46 of the
Constitution.



Simply put, that section of the constitution provides the procedure for
making law. Once a Bill is introduced, it goes to the House committee
responsible for the matters therein for consideration. At this time the Bill
is not in the house yet.

The committee may make such changes as it may deem fit then approve it for
the house.

Upon, the tabling of the Bill, parliament debates it and decides one way or
the other. If the Bill is rejected in toto. Then it may not be reintroduced
onto the floor of the house until the expiry of six months. If the House
amends it then it may pass with the amendments.


Then it may go through the various readings until it becomes a proposed law
awaiting the signature of assent from the President.

(It must be noted though, that the House recently passed a raft of
amendments to the Standing orders. One such is the time lapse before re
introduction of a rejected bill into the house. The new rules become
operational in March 2009. The new procedures allow faster, if not immediate
reintroduction of a rejected Bill.)



Once a Bill has been passed, on the other hand, it will be presented to the
President by the Speaker for his Assent. In event the President refuses to
assent to the bill, he is expected to return the bill to the Speaker, within
fourteen days of such refusal. He has to accompany the refused bill with a
memorandum or reasons for the refusal.

Parliament is expected to; within twenty one days reconsider the Bill in
consideration of the President's objections.

If the House is convinced, they will make the proposed amendments and return
the same to the president who SHALL then sign it into law.

In event that the parliament rejects the president's objections, the bill
will be returned to the president who may sign it. If he declined to sign it
automatically becomes law within fourteen days of such presentation to the
President.



That the Kenya Communications (Amendment) Bill 2008 was proposed singularly
to amend the 1998 Act is in no doubt. Therefore, the opportunity to amend
the obnoxious section 88 of the 1998 Act indeed lay before the house.
However, we are told that the proposal to amend section 88 of the 1998 Act
was rejected at the committee stage. It was therefore not debated by the
house.



The question that then emerges is this; can the President take the bill back
to ask that Parliament reconsiders that section 88 for repeal? My answer is
YES. He can. In doing so, the president will be dealing with another
function that the Attorney General would have performed. That of advising
that the section 88 would be unconstitutional. He didn't in 1998, he hasn't
now.



If the President assents to the Bill he will do so having failed to promote
the deletion of section 88 in the 1998 Act, yet he will have protected the
gains relating to ICT rather than broadcasting and other media.

If he refused to assent, then the question is how long will it be before it
becomes law? If the Parliament stays in recess until March as envisaged,
then the president may withhold his decision on the Bill until parliament
resumes. This is because time will be expected to run as soon as he advises
the speaker of his rejection.

Should he assent, it will not be said to automatically come into force
immediately. The Bill contains provision for phased implementation of the
law. The minister may appoint *effective* dates either for the whole law or
diverse dates for various sections. This means that the concern on time on
the part of Kictanet is not resolved by the mere passing of the Bill.



But there are other reasons for which the media, some political leaders,
civil society and others have sought the President's refusal to assent to
the law.

Broadly stated the issues are three fold.

1.       The power on the minister to confiscate equipment

2.       The power of the government to control and regulate content

3.       The lack of independence of the Regulatory body.



On 1 above we have the foregoing text has a response. Without going into the
merits of the other two concerns, it needs to be acknowledged that they are
legitimate questions but have the potential of hamstringing one sector in
favour of another.

On the issue of 2 above for instance, the regulator needs to be able to help
the media and the public classify material and allow it to be available for
the respective client without undermining the public good. Therefore, an
argument for a free hand will be inimical to public good. That said, and
related to 3 a regulatory authority must be legitimate and credible.
Therefore representation and greater presence of the diverse sectors
responsible is a valid and legitimate concern.

The initial error may have occurred when the ICT investment and advancement
issues were mixed up with telecommunications and broadcasting. But that is
debatable by the experts in the respective areas.



In conclusion,, I would opine for two options:

A). The President should be requested to expedite the decision on the Bill
either way

B)The President should be requested to recall parliament earlier than March
so as to deal with the outstanding business. This way, if he assents to the
Bill, those members of parliament opposed to the Bill could use their
privileged position to move amendment motions.

c)The affected sectors opposed to the existence of section 88 of the 1998
Act can move to the constitutional court and seek the judicial declaration
that the section is unconstitutional thus it be repealed.





-- 
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"
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www.mediacorp.co.ke
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