[kictanet] Planned amendments bode ill for Communications Authority

[Mwendwa Kivuva]

Greetings,

Walubengo seems to have captured the controversial issues surrounding the
new KICA amendments where the executive is unsurprising powers from the
"independent" Communications Authority. The emphasis of the community is
that these amendments are unconstitutional and will not be allowed to pass.

read on ...
http://www.nation.co.ke/oped/blogs/dot9/walubengo/-/2274560/2921856/-/xolkx9z/-/index.html

There is a proposed bill, the Miscellaneous Amendment Bill 164 of 2015
<http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2015/StatuteLaw__MiscellaneousAmendmens_Bill_164of2015.pdf>
that
proposes to move most of the communications regulatory powers to the
Cabinet secretary.

It is not clear why the Executive suddenly wants to become the regulator in
a day and age when global practice seems to be to keep the two as separate
as possible.

In seeking to understand the rationale, one needs to look at the
'Memorandum of Objects and Reason’ section, which states as follows:

*‘The Bill seeks to amend the Kenya Information And Communications Act,
1998  section 2 of 1998) so as firstly to align it with the Competitions
Act, 2014 in respect of the criteria for being a dominant market*

*undertaking and secondly to harmonize the regulation making power so that
it is exercised by the Cabinet Secretary in consultation with the
Authority’.*

Two aims seem to drive the new amendments. One is to put the contentious
issue of dominance under the Competition Authority rather than the
Communications Authority. The second is to enhance the Cabinet Secretary’s
role in communication regulatory matters.

For those with a little bit of communications history, it is easy to see
the deliberate shift towards the old days when communications regulation
was strictly under the Minister of Transport and Communications.

In those days, prior to the Kenya Communications Act 1998, the then Kenya
Posts and Telecommunications Corporation (KPTC), a fully-owned government
parastatal, was the father, mother and grandparent of all regulatory
matters in Kenya.

The performance of regulation then is well documented and it was clearly a
case study in ‘how not to regulate’.

So it still beats all logic, despite the intended rationale for the
amendments, why a modern, self-declared digital government would want to
drag the whole country back to the so-called dark days.

*'DEPARTMENT OF THE ICT MINISTRY'*

Indeed, the Kenyan Constitution (2010) anticipates and clearly states that
we should have a more independent regulator than what we have always had.

As stated in Article 34: Section (5)-:

*‘ Parliament shall enact legislation that provides for the establishment
of a body, which shall—*

*(a) be independent of control by government, political interests or
commercial interests;*

*(b) reflect the interests of all sections of the society; and*

*(c) set media standards and regulate and monitor compliance with those
standards.’*

Several court battles have recently been filed against the current
regulator simply because their decisions, however well-intentioned were
deemed not to have been undertaken by an independent regulator as
envisioned in the new constitution.

Why, then, would the government deliberately plan to set itself up for more
of these court battles by proposing amendments that clearly make the
regulator a department of the ICT Ministry and therefore not independent
from the Executive?

*JUST WIND UP THE CA*

Most of the proposed amendments are about replacing the role of the
regulator with that of the Cabinet secretary by inserting the words ‘The
Cabinet secretary in consultation with the Communication Authority shall
make regulations for…’

As an example, see Section 5(b)(5)  on ‘Freedom of the media’.  The new
proposals say that  ‘The Cabinet secretary in consultation with the
Communication Authority shall make regulations for the better carrying out
of the provisions in this section’.

In Section 27(d) on ‘SIM cards’, the new proposals say that ‘The Cabinet
secretary in consultation with the Communication Authority may make
regulations with respect to SIM Card registration, storage, retention,
transfers….’

There are many other amendments of similar a nature, and the clear message
is that the regulator cannot make operational decisions unless in
consultation with the minister.

Indeed, one could argue that it is effectively the other way round - the
Minister making the decision in consultation with the regulator.

If the famous voting machine in Parliament, otherwise known as the "tyranny
of numbers", is anything to go by, these amendments are likely to pass.

However, the government should do Kenyans a favour thereafter and wind up
the Communications Authority of Kenya, since its role will essentially have
been absorbed by the Ministry.

*Mr Walubengo is a lecturer at the Multimedia University of Kenya's Faculty
of Computing and IT. Twitter: @jwalu  Email: jwalubengo at mmu.ac.ke
<jwalubengo at mmu.ac.ke>*
______________________
Mwendwa Kivuva, Nairobi, Kenya

"There are some men who lift the age they inhabit, till all men walk on
higher ground in that lifetime." - Maxwell Anderson
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