[kictanet] Day 5 of 10-KCA 2008, IT Section - the Bad + Recommendations

[John Walubengo]

Thanx David, I have noted your specific proposals...lets turn our attention to the bad things about the IT Section...

We need to review some of the concerns raised by the IT fraternity.  Michuki raised one concerning the management of the internet domain names.  Apparently all domain managers/registras must be licensed by CCK (Regulator) rather than KENIC (the current) managers for the .KE space. Two issues arise here (a) CCK Board is largely government selected and driven, whereas KENIC board is multi-stakeholder selected and driven. Do we therefore want only Govt to oversee the .KE space? What model should we have instead? Another thing noted is the fact that some domain management issue DO NOT NEED a license but clause 83D seems restraining in that all actions on a .KE and its subdomain would require a license. Quite difficult to enforce if you asked me... 

The other issue I picked regards the liabilities of ISPs/ASPs or Infrastructure managers with regard to pornographic content.  If you are an ISP and your customers downstream are spewing digital porn - you are as guilty as they are and good for the courts/jail (Clause 84D).  The only comfort here is that this is a global and not a locally engineered challenge (remember internet governance issues?). So how do correctly apportion blame between content creators and content transmitters(pipes) as it were?

Finally, some of the e-Crimes cited have been found to be too restrictive, like 'hacking' with respect to software (84C) or mobile devices.  Many techies will tell you that they need to hack in order to learn/innovate. The same way our Jua-kali mechanics learn how the car-engine works by breaking it apart. 

Unfortunately I have no immediate Recommendations to smoothen these issues but the floor is open for clarifications/recommendations. We have today and the weekend for this theme and on Monday we have a look at the Telecommunication aspects.

walu.



--- On Thu, 1/15/09, David Makali <dmakali at yahoo.com> wrote:

> From: David Makali <dmakali at yahoo.com>
> Subject: Re: [kictanet] why bullying won't help
> To: jwalu at yahoo.com
> Cc: "kictanet" <kictanet at lists.kictanet.or.ke>
> Date: Thursday, January 15, 2009, 5:33 PM
> Rebecca,
> I don't think you people are willing to listen to what
> the media is saying. And as long as you proceed with that
> bias, there is unlikely to be any constructive dialogue or
> debate about the actual issues - whcih i urge you to focus
> on. Blaming the media for not having acted properly (and am
> not defending it here) is not going to wash. First because
> you need to understand why the media resorted to certain
> actions, and secondly because  you are conferring too much
> credit on the govt/ministry for what has happened or not
> happened. The fight, to use Bill Kaigai's words, is not
> even one between you (ICT people) who have jumped in between
> and the media, but between the media and the
> govt/parliament, particularly the ministry which is
> desperately trying to rope in everybody to its side in an
> unnecessary war against the media.
> 
> Who is bullying who? The media or the ministry which wants
> to legislate wapende wasipende, laws which we genuinely feel
> can be better?
> 
> First, the deputy speaker can not even justify that
> legislation. As it has emerged, most of those MPs had not
> read or were not awake to the implications of the bill that
> a few passed. And so we should sit back and fold our legs
> and say we can do nothing about it? That is relapsing to
> tyranny (Frankly, if you as me, parliament has effectively
> replaced the executive as the seat of dictatorship in our
> country. I am willing to defend that position anywhere.)
> If inded you followed the legislative process, you would
> have noticed by now that not a single amendment was taken by
> the MPs when the Bill went through the readings. Why? How
> democratic is that for Parliament. MPs should not lord it
> over everybody, and be haughty about their legslative power,
> when most of them know zilch about the legislation they
> pass. So, should the media be blamed for not trying when it
> raised its voice and made all manner of presentations to the
> VP, PM, Minsters, Parliamentary Committee? Are you aware
> that before the law was passed, the media had interceded
> with Kalonzo, Raila, Karua, Rege's Committee, and the
> Ministry of Information? So, it is not for want of trying
> that the media found itself in this situation.
> 
> I am surprised at your claim that we should have gone out
> to look for govermnent to ask if there was any legisation .
> Surely,  are you serious? Is it the business of the media,
> or anyone else for that mater to go inquiring if the govt
> does not disclose if it has legislation coming on a
> particular sector? How come you want to excuse the ministry
> for that mischief, and blame Macharia instead for the
> offence of the ministry? I dont get it.
> 
> I must point out that since the beginning of the year, the
> ministry has been hellbent on controlling the media. It
> tried to usurp the role of the media council (i will come to
> that shortly) early last year but was repulsed. Eventually a
> task force to look at how to improve the media act to
> address its weaknesses was constituted, with a rep from the
> ministry. It had a short, one month period to discuss and
> produce recommendations for amendments. That was five months
> ago. Up to now, it has met only once, the deadline has been
> extended indefinitely. In the meantime, the ministry has
> succeeded in shoving through the Communications Act. Start
> by asking the ministry what is happening to the task force
> headed by Priscilla Nyokabi of ICJ, then may be you will
> begin to comprehend the media's beef with the ministry.
> 
> The point has been made that the media council has not been
> effective. That is again another lie. What is not being
> stated in all this hulla balloo of condemnation is that the
> media act was only passed in september 2007, and came into
> force in october, when elections were due in december. By
> then, the institution of the council charged with
> aribtrating complaints - the complaints commission - had not
> been formed! Nor the finances provided. Even so, what
> exactly does the act say? If does not give the council power
> to attack or interfere with media houses. It provides a
> mechanism for the public to respond to media content. It is
> not the Council to go after r police the media but the
> public to compain about what it is unhappy with or contrary
> to the code of ethics of journalism as provided in that
> media act.  so to blame the media council for not acting is
> clearly wrong (even with the reasons given above). How many
> people actually know that the council is
>  supposed to do? How many compaints has the council
> "received" apart from people whining in public.
> The procedures are all there - you write to the council to
> compain about a particular station or newspaper; the council
> summons the media house and gives it 14 days within which to
> repsond, then the matter goes before the complaints
> commission to arbitrate and make a finding and issue orders
> to be obeyed by the media house. That is as it should be.
> All parties are heard.
> 
> For your information, the complaints comission was formed
> three months ago and is now functional. It has received
> compalints, including from the govt, about some stations. 
> 
> It is not correct ot say that the media are self-regulating
> or they have failed because that media council is a statory
> (read govt) body with media, govt and non media
> representation. The complaints commission is also a
> non-media body (the chair is a lawyer with qualifications
> required of a high court judge!) Please note - the era of
> self-regulation ended with the passage of the media act,
> 2007!
> 
> swhich is why the media has argued that the controls under
> the new comm act are parallel to what already exists, and
> all content issues should be moved under one statute. 
> 
> For the purposes of moving forward, the media fraternity
> (MOA, editors guid) have made very specific proposals for
> amending the Act, among them the following:
> 1. to move the whole broadcasting section hived off and
> moved to the media act, and should that not be possible or
> even after so doing;
> 2. restrict the coding envisaged in sect 46 to
> entertainment programs (so as to preserve the editorial
> independence of the media) and scope to be restricted to
> adult content, religious programs, decency etc and such code
> to be dranw up in consultation with the media council.
> 3. improve on the compsosition of the comm commission by
> requiring the minister to appoint to the commission people
> nominated by sectors of stakeholders, including the chair of
> the media council
> 4. disengage the minister form issuing directives to the
> commission
> 5. reduce the heavy fines provided for offences under the
> act
> 6. move all the complaints related to content from the act
> to the media act, and keep those related to violations of
> infrastructure nd licencing issues to the comm commission,
> which should be left with the management of frequencies and
> infrastructure.
> 7 amend the media act appropriately to acccommodate the
> above changes, and additional responsibilities, and provide
> for funding.
> 
> Surely, these proposals are not designed to protect the
> media or shield it from any criticism, but make it
> accountable but still independent, not a lapdog of the govt.
> 
> I hope this is not outrageous or offending to the ICT
> fraternity.
> ~David
> 
> 
> 
> 
> 
> --- On Thu, 1/15/09, Rebecca Wanjiku
> <rebeccawanjiku at yahoo.com> wrote:
> 
> > From: Rebecca Wanjiku <rebeccawanjiku at yahoo.com>
> > Subject: why bullying won't help
> > To: dmakali at yahoo.com
> > Cc: "kictanet"
> <kictanet at lists.kictanet.or.ke>
> > Date: Thursday, January 15, 2009, 12:27 AM
> > Makali,
> > 
> > I have been involved in the policy making process in
> the
> > ICT sector both locally and within the WSIS process.
> So,
> > allow me to make some observations.
> > 
> > I was at the forum on Tuesday and agreed with the
> deputy
> > speaker that the media is bullying Parliamentarians
> and
> > expecting Parliament to pass the law in their
> > favour.....Bill put it better than I can. You can read
> my
> > opinion
> >
> http://beckyit.blogspot.com/2009/01/why-it-s-hard-to-sympathize-with-media.html
> > 
> > 
> > During the meeting,  it became clear the media did not
> > perhaps do what other sectors did in terms of lobbying
> in
> > the process. Section 88 has been there since 1998, is
> this
> > the time the media has just realized that?
> > 
> > During the drafting process, various sectors are asked
> to
> > amend or draft clauses that do not suit them and
> present
> > what they would want the clauses to read. Was the
> media
> > involved in the drafting process?  I think it is wrong
> for
> > the media to assume that the government or the other
> sectors
> > should have understood the issues or implications
> while they
> > were not there.   
> > I was shocked when Macharia Gaitho said on Tuesday
> that
> > when they were in Mombasa discussion the FOI the
> ministry
> > said that that is all there is regarding media, that
> there
> > was no other act concerning the media. I wondered, did
> the
> > media stakeholders expect the government to look out
> for
> > them?
> > 
> > The bone of contention is the power given to the media
> > council and the financing, parties should come
> together and
> > say how they plan to finance it and give it teeth.
> This way,
> > all the concerns will be addressed squarely.
> > 
> > If our (media) concerns is the libel and the flimsy
> grounds
> > that people institute cases and win awards, I think
> the next
> > stage is for the media to lobby for the amendment of
> the
> > judicature act chapter 35 (am not sure) which deals
> with
> > defamation and shift the burden of proof to the
> complainant,
> > more like the amendments to the UK laws, which we
> inherited
> > and have never amended.
> > 
> > This way, the laws will be harmonized to take care of
> all
> > concerns and interests. Gaitho put it very clearly
> that the
> > media is not aganist regulation but control. This is
> the
> > time to pursue regulation mechanisms and put them in
> place.
> > 
> > regards
> > 
> > 
> >  Tel. 254 720 318 925
> > 
> > 
> > blog:http://beckyit.blogspot.com/
> > 
> > 
> > 
> > 
> > ________________________________
> > From: "dmakali at yahoo.com"
> > <dmakali at yahoo.com>
> > To: rebeccawanjiku at yahoo.com
> > Cc: kictanet <kictanet at lists.kictanet.or.ke>
> > Sent: Wednesday, January 14, 2009 9:28:14 PM
> > Subject: Re: [kictanet] Makali's response to brian
> > longwe: KCA2008-Broadcasting-The Recommendations
> > 
> > Why is it me? That msg frm maloy makes sense to you?
> Why
> > don't you see anything wrong with that msg. Get
> real,
> > Bill.
> > 
> > Sent from my BlackBerry® wireless device
> > 
> > -----Original Message-----
> > From: Bill Kagai <billkagai at gmail.com>
> > 
> > Date: Wed, 14 Jan 2009 20:45:28 
> > To: <dmakali at yahoo.com>
> > Cc: KICTAnet ICT Policy
> > Discussions<kictanet at lists.kictanet.or.ke>
> > Subject: Re: [kictanet] Makali's response to brian
> > longwe: KCA
> >     2008-Broadcasting-The Recommendations
> > 
> > 
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