[kictanet] Makali's response to brian longwe: KCA 2008-Broadcasting-The Recommendations

Wed Jan 14 16:56:43 EAT 2009

Brian,
I thought you are a nice guy, but now I am beginning to think that when you run for president (of malawi? hahaha!) i will not vote for you because i can detect a dictarotial streak in your genes (smile). 
Now let me turn to your views, which i hold to be fundamentally wrong and misguided. To start with, please stop giving sympathetic interpretations to a bad law. The law is read in the letter (and the spirit left to the courts). May be you have not suffered injustice and that is why you espouse such optimism about Sect 88. If you have read that law, please re-read it to see the venom it has. It can be used arbitrarily and has no respect to private property or the presumption of innocence of the victim of its application. 

There are many reasons why i think it is bad law but i will be brief. The law says that the Minister can declare a public emergency (NOTE: it has NOTHING to do with the State of Emergency provided for in the Constitution!).Anything can be a public emergency, including houseflies at city market. And all that is required is for the minister to determine it is, and for the purposes of a law, issue a certificate do declaring, and bar communication between people. What is worse is that if for instance the minister is wrong and he cannot return your equipment (at the end of the so-called emergency), he alone will determine the value to compensate you! 
Now, is that fair? What happened to the right to be heard? Due process?
But that is not grave perhaps.  It is your wrong interpretation of that law that prompts me to respond:
The law, as i havbe stated above, does not come into force during the period when a State of Emergency has been declared by the President as laid out under the constitution sect 83. NO, that section brings into force provisions of section 57 (preservation of public security act). And what would you say Michuki used when he authorised the attack and seizure of KTN /Standard Group equipment on the pretext that the group had infomration prejudicial to state security (his socks were torn, perhaps)?
As you may have noticed, he has never produced the information, returned the seized equipment, or compensated them. And as you well know there was no state of emergency. Good thing is he never cited the law he employed. Up to now. 
Earlier last year, there was no stat eof emergency declared when the Minister fo Internal security invoked sect 88 to ban live boradcasting. As you well know, the ministry recapitulated and dropped the ban when we took them to court. Why? Because it was illegal!
Finally,let me inform you and others that that section, in fact dos not deal with boradcasting stations but those other communication installations and short wave radio (call them "over-over") used by security firms, G4, Cartrack, Taxis and other courier services.  Please do not justify what is patently wrong. 
For us in the media, we don't want such arbitrary actions that threatene our lives and those who invest. So we havbe asked that those provisions apply to you if you want or so love to keep them. 

For those who have not read, I am reproducing that offending sect below:

88. 	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 their behalf, to take temporary possession of any telecommunication apparatus or any radio communication station or apparatus within Kenya, and –

(d)	in the case of radio communication, that any communication or class of communication shall or shall not be emitted from any radio communication taken under this section; or

(e)	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; or

(f)	in the case of postal services, that any postal article or class or description of 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 Minster may direct. 

(2)	A certificate signed by the Minster for the time being responsible for internal security shall be conclusive proof of the existence of a public emergency, or that any act done under subsection (1) was done in the public safety or tranquility.

(3)	A telecommunication apparatus constructed, maintained or operated by any person within Kenya or any postal article which is sized by any officer duly authorized under subsection (1) (a) shall be returned to the telecommunication operator at the end of the emergency or where such apparatus or article is not returned, full compensation in respect thereof, to be determined by the Minster, shall be paid to the owner.

(4)	A person aggrieved by a decision of the Minster under subsection (3) as to the compensation payable in respect of anything seized under this section may appeal to the High Court within fourteen days of such decision.

David

--- On Wed, 1/14/09, Brian Longwe <blongwe at gmail.com> wrote:

> From: Brian Longwe <blongwe at gmail.com>
> Subject: Re: [kictanet] Day 3 of 10:-KCA 2008-Broadcasting-The Recommendations
> To: dmakali at yahoo.com
> Cc: "KICTAnet ICT Policy Discussions" <kictanet at lists.kictanet.or.ke>
> Date: Wednesday, January 14, 2009, 2:22 AM
> I have some slightly different views regarding section 88
> 
> Remembering that fact that this section can only be
> activated during a state
> of emergency, let us remind ourselves that since the
> infancy of this nation
> there has only been a state of emergency declared twice (in
> over 50 years).
> 
> Why?
> 
> This is because there are other laws, including the
> constitution, that
> state, when and how a state of emergency ought to be
> declared. These lay out
> the specific types of circumstances that MUST prevail
> before such a state is
> declared, and also who has the authority and mandate to
> declare such a
> state.
> 
> Let us remind ourselves that during a state of emergency we
> have the
> equivalent of martial law - and the millitary basically
> have a carte blanche
> to take whatever measures necesarry to preserve the peace.
> 
> The reason I say this is because whether section 88 exists
> or not, if a
> state of emergency is declared, broadcasters will be the
> first to receive
> urgent attention to ensure controlled dissemination of
> information.
> 
> In fact, if the circumstances that would necessitate a
> state of emergency
> took place it is unlikely that any of the journalists or
> media owners would
> venture further than their window to peep outside and see
> if everything is
> OK.
> 
> My point is, let us not get too emotional and
> overreactionary on this issue
> - let us keep in sight the greater goals that the KCA
> Amendments Act intends
> to achieve and let's get to work.
> 
> Regards,
> 
> Brian
> 
> 
> On Wed, Jan 14, 2009 at 8:05 AM, John Walubengo
> <jwalu at yahoo.com> wrote:
> 
> > Thanx for the earlier contributions of Faima and
> Vincent, and more so the
> > recent input from the Hilton Public forum as reported
> by Barrack. I will now
> > go ahead and post the proposed amendments with regard
> to the issues/problems
> > raised yesterday.
> >
> > 1. that the retained 'draconian' clause 88
> gives unrestricted powers to the
> > two ministers (Internal Security and Information
> Ministers) and their
> > regulatory (CCK) appointees. These Powers enable them
> to declare an
> > emergency and raid media houses. The beef is that
> these powers are likely to
> > be abused particularly because of the heavy Govt
> composition of the
> > Regulatory Authorities who would likely serve their
> appointing authority
> > (Executive) rather than the common good (Public)
> >
> > Recommendation 1: Delete it or ensure that the
> Regulatory Authority (CCK)
> > is farily balanced in term of Board representation
> (i.e Govt, Media, Civil
> > Society, Academia, etc). All proposed Board Members
> must be vetted by
> > Parliament.
> >
> > 2. that the Content Regulation (Programming Code)
> aspects is also flawed in
> > that it is ONLY the Information Minister and his
> appointees who  can decide
> > what is prohibited and what is not, what should go on
> air and at what time.
> >
> > Recommendation 2: This bit should be taken to the
> Media Council, whose Act
> > (Media Council Act) should be strengthened to give the
> Media Council some
> > teeth (enforcement) capabilities.
> >
> > 3. that a Signal Distribution Monopoly would be
> enforced given that current
> > broadcasters would need to channel their transmission
> through a licensed
> > signal distributor i.e. dismantle their current
> distribution infrastructure
> > in the likely event that they are not the designated
> signal distributor.
> >
> > Recommendation: ???-Havent picked up this bit of
> recommendation, someone
> > could fill in?.
> >
> > Feel free to make belated contributions on the
> previous themes as well.
> > Tomorrow we enter into the IT section and we shall
> stick to the same format
> > i.e. dissect the Good, the Bad and (the Ugly?)
> Recommendations.
> >
> > walu.
> >
> >
> >
> >
> >
> >
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> >
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> >
> 
> 
> 
> -- 
> Brian Munyao Longwe
> e-mail: blongwe at gmail.com
> cell:  + 254 722 518 744
> blog : http://zinjlog.blogspot.com
> meta-blog: http://mashilingi.blogspot.com
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