[kictanet] Makali's response to brian longwe: KCA 2008-Broadcasting-The Recommendations
Brian Munyao Longwe
blongwe at gmail.com
Wed Jan 14 18:39:20 EAT 2009
Hey Daudi,
No reason not to like me just coz I see things a bit differently. But
that's cool, as u already know, I have plenty of haters....
Anyway back to the point. I know that you have personally experienced
the abuse of power in the hands of the executive and misguided
officials. I have huge respect for your unshaking stand in the face of
gross cruelty.
But please let me clarify myself. I am not for or against Sec 88. I
just see it as a piece of a puzzle which is much bigger and which
needs to be looked at from many angles by different people.
I hope that you will b at the consultations kesho at Regency so that
with others we can discuss appropriate interventions.
Best regards bro,
Mblayo
Sent from my iPhone
On 14 Jan 2009, at 4:56 PM, David Makali <dmakali at yahoo.com> wrote:
> 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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>>
>>
>>
>> --
>> 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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>
>
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