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

John Walubengo jwalu at yahoo.com
Fri Jan 16 15:55:25 EAT 2009 

Bill,

I have no game plan, I am an Academician and so find that I am able to look at this issues from each stakeholders perspective relatively objectively  - and yes my effort was 'duly' commissioned by the KICTANet National Cordinator - though not digitally signed :-(. 

This 10day exercise is not intended in anywway to undermine any other 'fact-finding' exercise and I believe the Ministry (of Info) does have the resources to multi-task and receive ideas from face-2-face workshops, online workshops, et al.

With regard to timeliness - last I heard was that Wako (AG) and/or Parliament can only begin to debate the suggested recommendations/proposals in April 2009 under a new Bill. So my take is that we have enough time for KICTAnet, ISACA and/or any other Stakeholder to submit their ideas. 

Why go into the other Sections -IT, Telco, Postal, etc?. Again, my brief was to do total review of ALL sections - avoid being trapped in the over-hyped Media vs Govt debate because all the other sections are important too and could stand to benefit from a review.
 
I attach the Program Outline which I posted on Day 1 and looks like you missed it (hence your suspicions?). Nevertheless, If members wish that we rest the discussion, I will close the discussion and move out of the Chair accordingly.

~~~~~~~#########Attached Program Outline###########

Kenya Communication Ammendment Act –Online Discussion.

Outline Description
The Kenyan Government has enacted the Kenya  Information
and Communication Amendment Act (2009) - popularly known as
the ICT Bill/Media Bill and KICTAnet invites comments on the
same.  Kenya ICT Action Network (KICTANet) is a
multi-stakeholder forum that aims to enhance collaboration
between various Government,  Private Sector, Civil Society,
Academia and others interested in harnessing ICT for
development.

Program Setting & Description:

The Act has the following major categories and shall be
discussed as outlined below:
 i)    Broadcasting & Media(3days)
 ii)    Information Technology (2days)
 iii)    Telecommunication & Radio (2days)
 iv)    Postal (1day)
 v)    Academia & Socio-Cultural (implied within text)-2days

Members shall analyse the Act over a period of two weeks
and submit their findings for subsequent consideration to
the Ministry of Information and Communication.

Aim:  To understand the implications of the Act and make
recommendations for improvement.

Objective
 1.    To identify and list the possible gaps, amendments and
 additions within the Kenya Communication Ammendment Act

 Main Outcomes/Deliverables
 1.    Participants contributions as captured and stored within  the Online Environment
 2.    Summarised  contributions in terms of Action-Items (add,
 amend, delete)
 3.    Face-2-face workshop and Presentation to the ministry.

Kick off today by inviting comments on the good aspects within the Broadcasting sections. Tomorrow we review the bad and make suggestions for amemdments improvements on  Wednesday. Floor is open.

walu.

--- On Fri, 1/16/09, Bill Kagai <billkagai at gmail.com> wrote:

> From: Bill Kagai <billkagai at gmail.com>
> Subject: Re: [kictanet] Day 5 of 10-KCA 2008, IT Section - the Bad +  Recommendations
> To: jwalu at yahoo.com
> Cc: "KICTAnet ICT Policy Discussions" <kictanet at lists.kictanet.or.ke>
> Date: Friday, January 16, 2009, 3:57 PM
> Walu,
> This is getting a bit confusing for me. Besides changing
> 'subject lines',
> you are forcing a debate that is clearly non-existent. I am
> concerned about
> your game plan here. As you continue collecting opinion
> over the next one
> week and then draft a report over the other two weeks, will
> it not be too
> late to submit a petition??
> 
> Yesterday, the Computer Society of Kenya, Kenya ICT
> Federation, PRSK, ICT
> Consumer Association and a horde of other stakeholders
> submitted petitions
> to the Ministry at Laico Regency.
> 
> I feel this activity is not only slow and time barred, but
> it will bring a
> lot of confusion later if not drag us back to where we have
> just managed to
> come from. Has Kictanet sanctioned that what you gather
> here will be our
> official petition on the ICT Act?? Aren't we past that
> now??
> 
> -Kindly clarify Kictanet intentions with this Day X of Y
> debate you have
> triggered.
> -Has the Ministry asked for comments on the new ICT Law.
> 
> To the contrary, I think they are implementing the new law.
> Maybe your
> debate should be on action rather than commenting on a law
> process that has
> come to pass. Maybe commentary on how the new law will be
> put into practice.
> I am just confused....I could be wrong about your/kictanet
> intentions
> here.....
> 
> Thx,
> Bill
> 
> On Fri, Jan 16, 2009 at 2:24 PM, John Walubengo
> <jwalu at yahoo.com> wrote:
> 
> > 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(R) 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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> > > > kictanet at lists.kictanet.or.ke
> > > >
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> > > >
> > > > This message was sent to: dmakali at yahoo.com
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> > >
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> > > >
> > > >
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> > > >
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> > > >
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> > >
> > >
> > >
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> > >
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> > >
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