[kictanet] Breaking News: Kenyan InternetCommunity comes face to face with new Legislation

Mon May 11 12:32:39 EAT 2009

Alex, Alice et. al.

1stly, I wish to state that the views I expressed in the email were my personal interpretation of the KCA Act 2009 with regard to domain registration. I do still stand by them - but if they caused misleading alarm/crisis - i do not think that it was the intention and motivation of the KENIC Board (of which I am NOT a member and therefore not authorised to speak on their behalf). So if the KENIC Board needs to resign, they should do so for another reason rather than my e-mail.

2ndly, I get the feeling from several reactions on this issue that we have mixed Governance Issues (who and how the .KE namespace is controlled) with Operational issues (how KENIC has so far been managing the .KE namespace).

3rdly, I agree (with Alex) that the confusion so created can no longer be solved online and somebody must convene a meeting for all stakeholders to be able to read from the same page. Obviously KENIC and CCK (the regulator) must take lead on this because to me they are immediately  affected by the turn of events. The rest of us (Users) are likely to feel the impact months/years later...

4thly, such a meeting can only be productive if the following is availed in advance:

1) The Regulator gives direction on what critereon they will use to distribute the control of this 2nd level namespace to competing bidders (e.g. First-come First- serve?, Auction (highest-bidder) method?, Politically correct methods? amongst many others)

2) The Regulator gives a roadmap of how they intend to manage the technical relationship between the local top-level domain (.KE) and the subsequently licensed private players at the 2nd subdomain levels.  My position still remains that you cannot purport to control the 2nd layer without implicitly controlling the top layer - otherwise you set yourself up for a future "technical disobedience" from the top layer. Which in turn means that the Regulator has to (will?) eventually find a way to control both the Top and 2nd levels domains. 

3) KENIC gives direction on how the Internet Community will benefit from this new dispensation. And yes the SPV route did raise more questions than answers and so maybe by then, we would have more answers than the questions.

I wish to rest my case on this issue until such a time when the face2face meeting is convened. If it is not - then I guess we just have to wait and see as the events unfold. Unlike our media friends - we (IT) do not control the airwaves and worse still our subject is more "esoteric than sensational" to use the words of one leading Editor and so the wananchi will be wondering "whose goat has been eaten and by who". 

walu.

--- On Mon, 5/11/09, Alex Gakuru <gakuru at gmail.com> wrote:

> From: Alex Gakuru <gakuru at gmail.com>
> Subject: Re: [kictanet] [ke-internetusers] Breaking News: Kenyan  InternetCommunity comes face to face with new Legislation
> To: alice at apc.org
> Cc: jwalu at yahoo.com, ke-internetusers at bdix.net
> Date: Monday, May 11, 2009, 10:09 AM
> Walubengo,
> 
> An important correction and note:
> 
> Section 83F uses discretionary word "may" not
> obligatory "shall" this
> below statement is factually incorrect.
> 
> "The law specifies that all second level .KE
> >>> internet domain names must be licensed by the
> country's
> >>> converged Regulator, Communication Commission
> of Kenya."
> 
> Has CCK has expressly stated intention to require registry
> to be
> licensed? Was CCK letter to kenic shown at the meeting?
> 
> The tradition is for the regulator to first publish/call a
> meeting for
> *all* would-be affected sector stakeholders (kenic,
> registrars, and
> ISP in this case).
> 
> Kenic should stop making-up a 'crisis'; rushing to
> register 'SPV',
> project urgency approval, than circulate emails to various
> mailing
> lists.
> 
> Registering the SPV is dead as a dodo. full stop. Wasahau.
> And at this
> rate should some or all board members consider resigning
> for
> misleading the "Internet Community"?
> 
> Alex
> 
> On Sun, May 10, 2009 at 2:52 PM, Alex Gakuru
> <gakuru at gmail.com> wrote:
> > Title: Section 83F  "License for country code
> top-level domain"
> >
> > Body: "The Commission may, upon application in
> the prescribed manner
> > and subject to such conditions as it may deem
> necessary, grant
> > licenses under this section authorizing a person to
> administer a
> > sub-domain in the country code top-level domain."
> >
> > Opinion:
> >
> > a) The title implies License for country code
> top-level domain" hence
> > kenic and/or others may apply for country code
> top-level domain
> > licence
> >
> > b) kenic administers "sub-domain in the country
> code top-level domain"
> > registrars merely  *registers* NOT administer
> sub-domains, unless you
> > are suggesting that hosting is part of
> "administering" a domain thus
> > "to host a .ke domain one needs a licence?"
> >
> > c) Lord forbid your interpretation that retail
> registrars need a
> > licence from CCK be correct. For if so I fear that
> will be last death
> > blow to the remaining .ke public goodwill. Registrars
> already pay
> > annual amounts to kenic and additional
> 'licence' fees burden would
> > discourage them marketing .ke. and their clients would
> understand .com
> > cost savings. Many (including those not kenic
> registrars) presently
> > just recommend .com,,, anyway.
> >
> > d) if in the current situation where kenic is having
> difficulties
> > efficiently serving existing registrars, would you
> expect these
> > registrars to agree to additional "Licenced
> fee" atop already very
> > costly kenic domain prices (compared to .com)
> >
> > e) If kenic board just wanted to form some SPV (btw,
> who are the
> > shareholders?) to compete with poor registrars at the
> retail level,
> > rest assured that then *they* will be left selling .ke
> alone - giving
> > themselves all the discounts you want, completely
> eradicating
> > registrars competition - i.e. strengthen kenic
> monopoly grip on domain
> > pricing not introduce competition any where..
> >
> > f) Valid claims of increasing competition can only be
> genuine if
> > Section 83F heading is interpreted to mean other
> registries are
> > allowed and those few registries pay licence fee to
> CCK. Those
> > registries stand to better represent various
> Nationally-dispersed
> > "Internet Communities" members, that private
> "SPV" company. BTW, what
> > is the present kenic company-type as is registered by
> Companies
> > Registrar?
> >
> > g) Should above come (f) bring about private-public
> interest conflict,
> > I would then suppose that the spirit to protect of
> public interest
> > over private interest  on National ICT Policy clause
> "7.1 .... In the
> > event of conflict, public interest shall
> prevail." swings into action?
> >
> > h) Finally Alice, you sit at both Kenic and CCK
> boards. You have had
> > the duty to inform both of them and openly report back
> to everyone on
> > the consequences. Je, ulifanya hivyo???
> >
> > regards,
> >
> >
> > Alex
> >
> > On Sun, May 10, 2009 at 1:42 PM, alice munyua
> <alice at apc.org> wrote:
> >> There seems to be some  misunderstanding  about
> what the KCA 2009  does?
> >>
> >> It is the introduction of liberalisation at
> >> the sub domain level by creating a
> >> competitive registrar model?  KENIC remains the
> ccTLD manager of the whole dot KE namespace and
> >> registry operator. What the KCA ammendment does
> only means if a registered company wants to manage/sell the
> second level, i.e. .co.ke, .sc.ke etc. they would need to
> get a  license from CCK to become an registarar.
> >> This is encouraging competition at the sub domain
> level and from my interpretation that is progress..
> >> Best
> >> Alice
> >>
> >> Views expressed are personal and not a reflection
> of any organisation/institution - am affiliated with.
> >>
> >> -----Original Message-----
> >> From: John Walubengo <jwalu at yahoo.com>
> >>
> >> Date: Fri, 8 May 2009 23:51:14
> >> To: <alice at apc.org>
> >> Cc: skunk<skunkworks at my.co.ke>;
> <ke-internetusers at bdix.net>; KICTAnet
> KICTAnet<kictanet at lists.kictanet.or.ke>
> >> Subject: Re: [kictanet] [ke-internetusers]
> Breaking News: Kenyan Internet
> >>        Community comes face to face with new
> Legislation
> >>
> >>
> >>
> >> Alex - I am NOT  against competition. It is good
> for the industry.  The problem is how such competition is
> introduced.  Yes, KENIC has had a monopoly over the .KE
> namespace, but at least it is(was?) a Multistakeholder
> Partnership in its legal formation.  If this partnership
> was NOT exercised adequately for the benefit of the
> community it should be fixed rather than move the rights of
> the .KE namespace to with due respect -just one of the
> stakeholders (Govt/Regulator), however strong they are.
> >>
> >> The idea and law specifying that the regulator is
> ONLY going to regulate the 2nd level domain is to me
> mischievious /grey area and I shared the same feelings at
> the KENIC AGM.  This is because the money/action/activities
> of ICT lie at the 2nd level!
> >>
> >> Claiming that the regulation is not touching the
> top level .KE but the lower level is similar to and I quote
> one of the members "telling a parent that you wont
> regulate him/her but his/her kids will be totally under 3rd
> party control".
> >>
> >> walu.
> >>
> >>
> >>
> >> --- On Fri, 5/8/09, Alex Gakuru
> <gakuru at gmail.com> wrote:
> >>
> >>> From: Alex Gakuru <gakuru at gmail.com>
> >>> Subject: Re: [ke-internetusers] Breaking News:
> Kenyan Internet Community comes  face to face with new
> Legislation
> >>> To: jwalu at yahoo.com
> >>> Cc: ke-internetusers at bdix.net
> >>> Date: Friday, May 8, 2009, 10:55 PM
> >>> Walu,
> >>>
> >>> Thank you for the info although I find it
> bordering on
> >>> alarmist;)
> >>>
> >>> I deliberately boycotted today's Kenic AGM
> because,
> >>> among others,
> >>> kenic folks decided they will not post to this
> list minutes
> >>> of last
> >>> year's AGM resolutions, such as,
> constitutional change
> >>> made to allow
> >>> an a certain individual's term of office
> to be extended
> >>> beyond what
> >>> the constitution allowed. There are a couple
> of complaints
> >>> I
> >>> restrained myself from posting onlist.
> >>>
> >>> Background:
> >>>
> >>> During last year's AGM the said
> "Internet
> >>> Community" for the second
> >>> (or third?) year running repeatedly complained
> about
> >>> kenic's failure
> >>> to lower .ke domain prices as frustrating .ke
> domains
> >>> growth.
> >>> Registrars we later hurriedly called to a
> meeting at the
> >>> Grand Hotel
> >>> and we were asked to volunteer ourselves to a
> committee
> >>> that would
> >>> look into domain price issue. To the best of
> my knowledge
> >>> information
> >>> and belief no such meeting has ever been
> called, to-date.
> >>>
> >>> At today's 10,133 domain numbers
> statistics ( CO.KE 9,
> >>> 465  NE.KE 14,
> >>> OR.KE  654)
> >>>
> see:<http://www.kenic.or.ke/statistics.html> kenic
> >>> annual
> >>> domains selling income exceeds kenya shillings
> 20 million
> >>> every year -
> >>> while Internet consumers continue screaming
> "lower
> >>> domain prices!" to
> >>> seemingly deaf ears and half-hearted Kenyan
> domain space
> >>> (.ke)
> >>> administrator.
> >>>
> >>> They fail to see the bigger picture. By
> lowering domain
> >>> prices they
> >>> would have very many more being able to afford
> local
> >>> domain.
> >>>
> >>> Lets face it, shillings 20 million is not
> kidogo money
> >>> without
> >>> necessarily dwelling on the fact that many of
> their staff
> >>> are interns
> >>> ( Aren't permanent staff only 4?) I
> suppose Board
> >>> members do not draw
> >>> salaries? Again, really whom does the Kenic
> Board answer
> >>> to/ i.e.holds
> >>> them accountable? Only to themselves with
> ceremonial AGMs?
> >>>
> >>> The Law:
> >>>
> >>> Kenya Communications (Amendment) Act, 2008
> states:
> >>>
> >>> Section 83F: Licence for country code
> top-level domain
> >>>
> >>> "The Commission [CCK] may, upon
> application in the
> >>> prescribed manner
> >>> and subject to such conditions as it may deem
> necessary,
> >>> grant
> >>> licences under this section authorizing a
> person to
> >>> administer a
> >>> sub-domain in the country top-level
> domain"
> >>>
> >>> What's wrong with CCK granting licenses
> to, for example
> >>> 3 or 4 (legal)
> >>> persons to compete in offering the best-priced
> domains to
> >>> Kenyans
> >>> consumers?
> >>>
> >>> Conclusion:
> >>>
> >>> Kenic attracted the competition which perhaps
> might have
> >>> been avoided
> >>> if they had listened to the "Internet
> Community"
> >>> cries over the year.
> >>> I note that you refer to kenic as
> "partnership."
> >>> Licence conditions
> >>> could include all others be representative
> partnerships and
> >>> PPP
> >>> 'problem' solved;)  What I am trying
> to say is that
> >>> kenic should not
> >>> be viewed as the only PPP model possible..
> ICANN does not
> >>> break
> >>> national laws and in any case, note how many
> registries
> >>> exist in the
> >>> US itself. Our market has matured and we need
> competition
> >>> in the
> >>> domain space area also, Yes/No?
> >>>
> >>> My take is kenic's honeymoon ended when
> the law opened
> >>> domain pricing
> >>> competition space that should lower prices-
> good for
> >>> consumers but bad
> >>> for old kenic 'monopoly era' ;)
> >>>
> >>> In other words, we do not have a crisis so let
> us not make
> >>> one up.
> >>>
> >>> Regards,
> >>>
> >>> Alex
> >>> ---
> >>> References
> >>> 1. Boosting numbers in .ke domain names
> >>>
> <http://www.bdafrica.com/index.php?option=com_content&task=view&id=9451&Itemid=5843>
> >>>
> >>> 2. Kenyans to enjoy reduced charges for
> acquiring Internet
> >>> domains
> >>>
> <http://www.bdafrica.com/index.php?option=com_content&task=view&id=8270&Itemid=5847>
> >>>
> >>> On Fri, May 8, 2009 at 5:12 PM, John Walubengo
> >>> <jwalu at yahoo.com> wrote:
> >>> >
> >>> > Apologies for cross-posting:
> >>> >
> >>> > It took a KENIC (KEnya Network
> Information Center,
> >>> www.kenic.or.ke) Annual General Meeting for
> the Kenyan
> >>> Internet community to digest the implication
> of the a Kenyan
> >>> ICT Legislation passed more than five months
> ago.  The law
> >>> which included sections that touched on the
> Media, IT,
> >>> Telecommunication and Postal Services has
> faced stiff
> >>> resistance from the Media fraternity while the
> Internet
> >>> Community kept a low if not a dead profile.
> >>> >
> >>> >
> >>> >
> >>> > It was at the KENIC general meeting held
> today in
> >>> Nairobi that the Internet Community grappled
> with the
> >>> implication of the IT section on the operation
> of the .KE
> >>> namespace.  The law specifies that all second
> level .KE
> >>> internet domain names must be licensed by the
> country's
> >>> converged Regulator, Communication Commission
> of Kenya.
> >>>  The law requires that all Registries - those
> who manage
> >>> the internet domains - must apply for a
> license by the 2nd
> >>> of June 2009.
> >>> >
> >>> >
> >>> >
> >>> > KENIC, a public-private-partnership has
> under the
> >>> ICANN Policies been managing the .KE namespace
> including the
> >>> 2nd level sub-domains such as xyz.CO.KE,
> xyz.OR.KE, etc.
> >>> From 2nd June 2009, KENIC must seek permission
> from the
> >>> Regulator to continue managing these
> sub-domains.  In an
> >>> effort to comply with the law, the KENIC Board
> requested the
> >>> community to support a resolution that a new
> legal entity
> >>> (Special Purpose Vehicle, SPV) be created in
> order to apply
> >>> for the license from the Regulator as well as
> compete with
> >>> other potential entities that are set to fight
> in that
> >>> space.
> >>> >
> >>> >
> >>> >
> >>> > The proposals opened up heated
> discussions with some
> >>> members wondering if KENIC was ceding its
> hard-won rights
> >>> & control over the .KE namespace to an
> exclusive and
> >>> single entity.  The current governance
> structure for KENIC
> >>> provides for a Multistakeholder Partnership
> over the whole
> >>> .KE namespace and has the Govt, Academia,
> Private
> >>> Sector/Telcos and Civil Society Board
> Representation that is
> >>> wholly accountable to Internet Users during
> Annual General
> >>> Meetings.  Effectively, the new law takes
> part of this
> >>> mandate and places it under one or two of
> these Stakeholders
> >>> that is the Regulator/Govt.
> >>> >
> >>> >
> >>> >
> >>> > Members wondered about the criteria that
> would be used
> >>> by the Regulator to award the management
> licenses to various
> >>> competitors. Others wondered about the
> potential conflict
> >>> between the local legislation and the ICANN
> policies given
> >>> that KENIC has currently been operating under
> ICANN policies
> >>> but now has to take cognizance of the local
> law.  For
> >>> example, if the Regulator granted a license to
> someone else
> >>> to manage the "co.ke" subdomain BUT
> the local
> >>> internet community for one reason or the other
> instructed
> >>> the KENIC Board NOT to accept and transfer the
> delegation
> >>> from KENIC how would that be resolved? And yet
> other members
> >>> wondered to what extend the proposed SPV would
> cannibalize
> >>> their existing markets and services.
> >>> >
> >>> >
> >>> >
> >>> > It has taken five months of silence but
> clearly, the
> >>> Kenyan Internet community is just beginning to
> understand
> >>> and feel the heat of some sections in the ICT
> law that had
> >>> previously been hijacked and labeled
> "Media law"
> >>> at the expense of IT practitioners.  It will
> be interesting
> >>> to see how this plays out before and after the
> 2nd of June
> >>> 2009 - the date when all subdomain managers
> must be licensed
> >>> by the Regulator.
> >>> >
> >>> >
> >>> >
> >>> > walu
> >>> >
> >>> >
> >>> >
> >>> >
> >>> >
> >>> >
> >>> >
> >>> >
> >>> >
> >>> >
> >>> >
> >>> >
> _______________________________________________
> >>> > ke-internetusers mailing list
> >>> > ke-internetusers at bdix.net
> >>> >
> http://www.bdix.net/mailman/listinfo/ke-internetusers
> >>> >
> >>
> >>
> >>
> >>
> >> _______________________________________________
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> >>
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> >>
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> >>
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