[kictanet] Brian Longwe's Response to Makali

Wed Jan 14 22:49:43 EAT 2009

Friends,

I suppose it's time for this online debate to come to a close, and take in
more of the interventionist
steps/measures arising out of the consultative forums currently ongoing.I
suppose the goodwill is there, 
now that everyone is back to their senses and much informed on the
legislation ( I'm sure all of us).

Based on the strong critique we've all witnessed here, definitely everyone
has a point to make.

This is not pitting Media against ICT, or vice versa. The simple nugget is
that this is our country,and 
there is a lot that we all need to join forces to get sorted and this is
just but a tip of the iceberg.

Fundamental socio-economic, and democratic gains attained this far, MUST be
responsibly guarded,as we move 
forward to gain more ground. 

Many thanks, and hopefully this is closure.

Harry

-----Original Message-----
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Sent: Wednesday, January 14, 2009 7:59 PM
To: Harry Delano
Subject: kictanet Digest, Vol 20, Issue 46

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Today's Topics:

   1. Re: Makali's response to brian longwe: KCA
      2008-Broadcasting-The Recommendations (Brian Munyao Longwe)
   2. Re: Makali's response to brian longwe: KCA
      2008-Broadcasting-The Recommendations (Victor Maloi)

----------------------------------------------------------------------

Message: 1
Date: Wed, 14 Jan 2009 18:39:20 +0300
From: Brian Munyao Longwe <blongwe at gmail.com>
Subject: Re: [kictanet] Makali's response to brian longwe: KCA
	2008-Broadcasting-The Recommendations
To: "dmakali at yahoo.com" <dmakali at yahoo.com>
Cc: KICTAnet ICT Policy Discussions <kictanet at lists.kictanet.or.ke>
Message-ID: <1EA7B49F-9251-4A1D-A8EB-1AF0139AAF5F at gmail.com>
Content-Type: text/plain;	charset=utf-8;	format=flowed;	delsp=yes

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.
>>>
>>>
>>>
>>>
>>>
>>>
>>> _______________________________________________
>>> kictanet mailing list
>>> kictanet at lists.kictanet.or.ke
>>> http://lists.kictanet.or.ke/mailman/listinfo/kictanet
>>>
>>> This message was sent to: blongwe at gmail.com Unsubscribe or change 
>>> your options at
>>>
>> http://lists.kictanet.or.ke/mailman/options/kictanet/blongwe%40gmail.
>> com
>>>
>>
>>
>>
>> --
>> 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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>> This message was sent to: dmakali at yahoo.com Unsubscribe or change 
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>> com
>
>
>

------------------------------

Message: 2
Date: Wed, 14 Jan 2009 20:03:22 +0300
From: "Victor Maloi" <victormaloi3 at gmail.com>
Subject: Re: [kictanet] Makali's response to brian longwe: KCA
	2008-Broadcasting-The Recommendations
To: dmakali at yahoo.com
Cc: KICTAnet ICT Policy Discussions <kictanet at lists.kictanet.or.ke>
Message-ID:
	<6e538b390901140903k70b727a2p2e42ac1d8986a628 at mail.gmail.com>
Content-Type: text/plain; charset="iso-8859-1"

Everybody knows very well that when the rating of some specific media house
goes down, they chokosa government so that people can be sympatetic.  End of
Decenber they tried to use my Maasai brother to do the same but this time
round the government was smarter.

I wish people like Makali can do some research instead of making arguments
like an unschooled person.

In Australia the arguments of Broadcast are presented in a civilized manner.
Please read the attached:

Victor Maloi
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