[kictanet] Cyber Bill

Thu Dec 31 16:42:59 EAT 2015

Allow me to go completely legal:

PUBLIC PARTICIPATION:
---------------------------------------
Courts in Kenya have addressed the question of public participation
and the circumstances in which it will be deemed to be sufficient. In
the case of Robert N. Gakuru and Others vs The Governor Kiambu County
and 3 Others, Petition No 532 of 2013, the High Court was faced with a
challenge to County legislation on the basis that there had been
insufficient public participation. The Court in its decision stated
that: "In my view public participation ought to be real and not
illusory and ought not to be treated as a mere formality for the
purposes of fulfilment of the Constitutional dictates. It is my view
that it behoves the County Assemblies in enacting legislation to
ensure that the spirit of public participation is attained both
quantitatively and qualitatively. It is not just enough in my view to
simply “tweet” messages as it were and leave it to those who care to
scavenge for it.” The Court was emphatic on the obligation of County
Assembly with regard to public participation: ”The County Assemblies
ought to do whatever is reasonable to ensure that as many of their
constituents in particular and the Kenyans in general are aware of the
intention to pass legislation and where the legislation in question
involves such important aspect as payment of taxes and levies, the
duty is even more onerous. I hold that it is the duty of the County
Assembly in such circumstances to exhort its constituents to
participate in the process of the enactment of such legislation by
making use of as many fora as possible such as churches, mosques,
temples, public barazas, national and vernacular radio broadcasting
stations and other avenues where the public are known to converge to
disseminate information with respect to the intended action.”

In Nairobi Metropolitan PSV Saccos Union Limited & 25 Others vs County
of Nairobi Government and 3 others, Petition No 486 of 2013 the High
Court stated: “... it does not matter how the public participation was
effected. What is needed, in my view, is that the public was accorded
some reasonable level of participation and I must therefore agree with
the sentiments of Sachs J in Minister of Health v New Clicks South
Africa (PTY) Ltd (supra) where he expressed himself as follows; “The
forms of facilitating an appropriate degree of participation in the
law-making process are indeed capable of infinite variation. What
matters is that at the end of the day a reasonable opportunity is
offered to members of the public and all interested parties to know
about the issue and to have an adequate say. What amounts to a
reasonable opportunity will depend on the circumstances of each case.”

RIGHTS TO PRIVACY, AND SURVEILLANCE:
-------------------------------------------
 The right to privacy is guaranteed under Article 31 of the
Constitution which provides as follows:

Every person has the right to privacy, which includes the right not to have –

(a)       Their person, house or property searched.
(b)      Their possessions seized
(c)       Information relating to their family or private affairs
unnecessarily required or revealed; or
(d)      The privacy of their communications infringed.

In Coalition for Reform and Democracy (CORD) & 2 others v Republic of
Kenya &10; others [2015] eKLR, the official opposition party the
Coalition for Reforms and Development (CORD), and the Kenya National
Commission on Human Rights (KNCHR) filed a petition against the
government to reverse the amendments on surveillance. In a ruling by a
five judge bench by the high court of Kenya, the court said "To our
collective mind, and taking judicial notice of the numerous terrorist
attacks that this country has experienced in the last few years, we
are of the view that the interception of communication and the
searches contemplated under the two impugned provisions of law are
justified and will serve a genuine public interest. The right to
privacy must be weighed against or balanced with the exigencies of the
common good or the public interest:"

Source: http://kenyalaw.org/caselaw/cases/view/106083/

On 30/12/2015, Grace Mutung'u (Bomu) via kictanet
<kictanet at lists.kictanet.or.ke> wrote:
> Ali and all,
> I understand that these are regulations (subsidiary legislation) meaning
> that they are just meant to make implementation of the main law (KICA)
> smoother. According to the provisions of the Statutory Instruments Act, the
> same will still go to Bunge for scrutiny. That said, it is more useful to
> have wide consultations before the Regulations are finalised.
> I admit that I did not have enough time to go through all the regulations
> after the message was posted here. I join in asking the Regulator to
> consider the following so as to make the process more meaningful:
> a) Have a stakeholder's forum (even online) to take stakeholders through
> the rationale for the Regulations. I believe this forum has many people who
> are interested in critiquing the Regulations from an informed point of
> view.
> b) Give stakeholders a bit more time to consider and give input to the
> Regulations, say a least two -three weeks in January
> c) Publish the Regulations with incorporated amendments (if any) before
> taking them to Parliament for scrutiny
> Regards,
>
>
> 2015-12-30 16:01 GMT+03:00 Kipkemoi Kiptum via kictanet <
> kictanet at lists.kictanet.or.ke>:
>
>> President Ulysses S. Grant (General(Retired))
>> First Inaugural Address
>> Washington, DC
>> Thursday, March 4, 1869
>>
>> Citizens of the United States:
>>
>> Your suffrages having elected me to the office of President of the United
>> States, I have, in conformity to the Constitution of our country, taken
>> the
>> oath of office prescribed therein. I have taken this oath without mental
>> reservation and with the determination to do to the best of my ability
>> all
>> that is required of me.
>> ...
>>
>> [snip - but not so we loose the message]
>>
>> ...
>>
>> I shall on all subjects have a policy to recommend, but none to enforce
>> against the will of the people. Laws are to govern all alike—those
>> opposed
>> as well as those who favor them. *I know no method to secure the repeal
>> of bad or obnoxious laws so effective as their stringent execution. *
>>
>> *Kip*
>>
>> *A Cruce Salus*
>>
>>
>> On Wed, Dec 30, 2015 at 2:54 PM, Waithaka Ngigi via kictanet <
>> kictanet at lists.kictanet.or.ke> wrote:
>>
>>> Ali,
>>>
>>> It's a trend that's currently happening across the board where the most
>>> extreme version of the laws becomes *default‎* and it's only watered
>>> down
>>> after protests and legal suits.
>>>
>>> Very unfortunate.
>>>
>>> Waithaka Ngigi
>>>
>>> Alliance Technologies
>>> www.at.co.ke
>>> *From: *Ali Hussein
>>> *Sent: *Wednesday, December 30, 2015 2:08 PM
>>> *To: *KICTAnet ICT Policy Discussions
>>> *Cc: *Waithaka Ngigi
>>> *Subject: *Re: [kictanet] Cyber Bill
>>>
>>> Waithaka
>>>
>>> You raise critical issues. My sense is that before any law or amendment
>>> is drafted for 'public debate' (more on this in a minute) shouldn't the
>>> constitutional threshold first be met?
>>>
>>> Shouldn't the drafters of these laws and amendments exhibit utmost good
>>> faith in relation to the constitution? There is a lot in these drafts
>>> that
>>> in my humble opinion just do not meet this threshold.
>>>
>>> On the issue of public debate/comments I have hit fatigue levels for one
>>> simple reason.
>>>
>>> *The lack of transparency in the very process of public comments.*
>>>
>>> Is there someone on this list who can educate us on this process? My
>>> questions:-
>>>
>>> 1. What happens after the comments/debate period expires?
>>> 2. Are people's comments incorporated?
>>> 3. Do we receive any feedback regarding our comments?
>>>
>>> Please educate us on this.
>>>
>>> The WCIT12 issue is still fresh in some of our minds. The community was
>>> engaged vigorously by the previous regime headed by then Minister
>>> Poghisio
>>> and his PS, Dr. Ndemo. I was in the Kenya Delegation when Dr. Ndemo
>>> declined to sign the new treaty due to major issues of contention one of
>>> which was Net Neutrality.
>>>
>>> Enter the new regime and we now hear the treaty was later signed by
>>> Kenya. No explanation given. No announcement. Zilch.
>>>
>>> For the community to feel that their views are being taken into account
>>> there needs to be transparency on how these comments/debates at
>>> incorporated and decisions made even before they hit parliament for
>>> debate.
>>>
>>> My two cents.
>>>
>>> *Ali Hussein*
>>> *Principal*
>>> *Hussein & Associates*
>>> +254 0713 601113 / 0770906375
>>>
>>> Twitter: @AliHKassim
>>>
>>> Skype: abu-jomo
>>>
>>> LinkedIn: http://ke.linkedin.com/in/alihkassim
>>> <http://ke.linkedin.com/in/alihkassim>
>>>
>>> Blog: www.alyhussein.com
>>>
>>> "Discovery consists in seeing what everyone else has seen and thinking
>>> what no one else has thought".  ~ Albert Szent-Györgyi
>>>
>>> Sent from my iPad
>>>
>>> On 30 Dec 2015, at 10:49 AM, Waithaka Ngigi via kictanet <
>>> kictanet at lists.kictanet.or.ke> wrote:
>>>
>>> Just wondering,
>>>
>>> While at it, why not just get the Red Star OS from North Korea and make
>>> it the mandatory OS in Kenya‎?
>>>
>>> It is the *constitutional* right of every Kenyan‎ Citizen to PRIVACY
>>> which can only be lifted through a very well detailed legal process.
>>>
>>> No act of parliament should attempt mass-collection of private data from
>>> Kenyan citizens under the guise of fighting Cyber crimes.
>>>
>>> Waithaka Ngigi
>>>
>>> Alliance Technologies
>>> www.at.co.ke
>>> *From: *Josiah Mugambi via kictanet
>>> *Sent: *Wednesday, December 30, 2015 10:07 AM
>>> *To: *Ngigi Waithaka
>>> *Reply To: *KICTAnet ICT Policy Discussions
>>> *Cc: *Josiah Mugambi
>>> *Subject: *[kictanet] Cyber Bill
>>>
>>>
>>> http://www.standardmedia.co.ke/mobile/article/2000186538/new-law-tightens-noose-on-online-hackers
>>>
>>> Quite the uproar judging by the comments online.
>>>
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>>>
>>> The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform
>>> for people and institutions interested and involved in ICT policy and
>>> regulation. The network aims to act as a catalyst for reform in the ICT
>>> sector in support of the national aim of ICT enabled growth and
>>> development.
>>>
>>> KICTANetiquette : Adhere to the same standards of acceptable behaviors
>>> online that you follow in real life: respect people's times and
>>> bandwidth,
>>> share knowledge, don't flame or abuse or personalize, respect privacy,
>>> do
>>> not spam, do not market your wares or qualifications.
>>>
>>
>>
>> _______________________________________________
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>>
>> Unsubscribe or change your options at
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>>
>> The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform
>> for people and institutions interested and involved in ICT policy and
>> regulation. The network aims to act as a catalyst for reform in the ICT
>> sector in support of the national aim of ICT enabled growth and
>> development.
>>
>> KICTANetiquette : Adhere to the same standards of acceptable behaviors
>> online that you follow in real life: respect people's times and
>> bandwidth,
>> share knowledge, don't flame or abuse or personalize, respect privacy, do
>> not spam, do not market your wares or qualifications.
>>
>
>
>
> --
> Grace L.N. Mutung'u
> Nairobi Kenya
> Skype: gracebomu
> Twitter: @Bomu
>
> <http://www.diplointernetgovernance.org/profile/GraceMutungu>
>

-- 
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Mwendwa Kivuva, Nairobi, Kenya
twitter.com/lordmwesh

The best athletes never started as the best athletes.
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