[kictanet] KIC (Amendement) Bill - Communications during emergency

Wed Jul 10 11:21:50 EAT 2013

mmm…interesting elaboration of the possible scenarios Mr Kulubi. So maybe the provision needs to be abit more elaborate and explain some of these conditions. We have seen such provisions misused in the past!

From: kictanet [mailto:kictanet-bounces+eadera=idrc.ca at lists.kictanet.or.ke] On Behalf Of James Kulubi
Sent: July 10, 2013 9:24 AM
To: Edith Adera
Cc: KICTAnet ICT Policy Discussions
Subject: Re: [kictanet] KIC (Amendement) Bill - Communications during emergency

To address the matter, one needs to first look at the circumstances leading to a state of emergency. Section 58 of the Constitution gives two conditions:
(a) the State is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and
(b) the declaration is necessary to meet the circumstances for which the emergency is declared.
Of the conditions above, it is only natural disasters and civil  disorder  that the service providers  and the government have mitigating systems in place. Infrastructure is duplicated (e.g fibre and satellite). Further, most countries have emergency communication systems specifically to address disasters and disorders (see  this paper on UK emergency communication<http://www.zmne.hu/aarms/docs/Volume4/Issue2/pdf/01nemeth.pdf>);  and come the worst, states use the Tampere Convention<http://www.itu.int/ITU-D/emergencytelecoms/tampere.html> to allow faster importation of telecommunication equipment.
War and invasion are probably more difficult to deal with. The state my wish to send warning messages to citizen but at the worst, the enemy may use our national communication infrastructure (especially mobile communications)  to communicate thus avoiding detection by military intelligence.
On the lighter note, the concerns Edith has upon  seeing this statement in the law is easy to understand, As early as 2004, a newly appointed government official got very mad with government efforts to liberalize the communications sector. He asked “Tell me, If we sell  Telkom to a foreign firm and the government wants to do something – What will I use?” Somebody informed him that if what the government wants to do is legitimate, then any service provider will certainly provide the service. He went further and asked “At no fee? And suppose it is an emergency and we have all these complex procurement regulations in place. The Government should just wait?” Finally somebody produced the Communications Act of 1998<http://www.cck.go.ke/regulations/downloads/The_Kenya_Communications_Act_1998.pdf> and referred him to Section 88 and informed him that during a state of emergency, the government  can take temporary possession of any communication system as provided for in the section.
This provision has always been in our laws and indeed exists in many other jurisdictions.
Best Regards
James Kulubi

________________________________
From: Ali Hussein <ali at hussein.me.ke<mailto:ali at hussein.me.ke>>
To: jkulubi at yahoo.co.uk<mailto:jkulubi at yahoo.co.uk>
Cc: KICTAnet ICT Policy Discussions <kictanet at lists.kictanet.or.ke<mailto:kictanet at lists.kictanet.or.ke>>
Sent: Wednesday, 10 July 2013, 4:32
Subject: Re: [kictanet] KIC (Amendement) Bill - Communications during emergency

Yes. I would agree. Society unfortunately has to have certain precautionary steps put in place to protect national Interest. One can only hope that it is not misused.
Ali Hussein
CEO | 3mice interactive media Ltd
Principal | Telemedia Africa Ltd

+254 713 601113/ 0770 906375

"The future belongs to him who knows how to wait." - Russian Proverb

Sent from my iPad

On Jul 9, 2013, at 10:56 PM, Barrack Otieno <otieno.barrack at gmail.com<mailto:otieno.barrack at gmail.com>> wrote:
Well there was a feeling that based on 2007, it is a valid propasal.
On Jul 9, 2013 10:53 PM, "Edith Adera" <eadera at idrc.ca<mailto:eadera at idrc.ca>> wrote:
Listers,

I managed to catch the tail end of the stakeholder deliberations today, and wonder if I’m the only one uncomfortable with this section below in the Kenya Information and Communication Bill?

Am I unduly concerned or others feel the same? Worth debating?

Concerned Edith

===============
102B. (1) Upon the declaration of a state of emergency under Article 58 of the Constitution, the Authority may give a direction to any communications service provider that their entitlement to provide communication services has either been:
(a) suspended, either generally or in relation to specific services, networks or facilities ; or
(b) restricted or modified with respect to the provisions given in the direction.

(2) The restriction or modification under subsection (1) (b) of this section may include—
(a) provisions for the taking, removal, addition, construction, control or the usage for purposes of mitigating public emergencies or disasters of, all or any such communication system, equipment or services under this Act; and
(b) provisions for the stopping, delaying and censoring of messages and broadcasts and the carrying out of any other purposes which the Authority thinks necessary to facilitate the direction given.

(3) A direction under this section shall apply only for the duration of the state of emergency

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