[kictanet] Planned amendments bode ill for Communications Authority

Wed Oct 21 13:51:21 EAT 2015

Oops, i had forgotten that we can Sosion the amendments. Thank you for
that enlightenment Kivuva.

Lets watch the next steps.

Regards

On 10/21/15, Mwendwa Kivuva <lordmwesh at gmail.com> wrote:
> Barrack,  these amendments will not be allowed to pass, even with tyranny
> of numbers because any bills passed should be inline with the constitution.
> Any laws enacted that contradict the constitution are null and void. We
> have several precedence in case law where laws that were passed by
> parliament were reversed by court.
>
> Regards
> On Oct 21, 2015 9:57 AM, "Barrack Otieno via kictanet" <
> kictanet at lists.kictanet.or.ke> wrote:
>
>> Ali, Colleagues,
>>
>> This is purely a leadership issue Ali, fortunately there is a time and
>> season for everything. The current stewards of the sector will be
>> remembered for their deeds or misdeeds. The same laws will  be amended
>> some day by another parliament that is full of wisdom not numbers.
>>
>> Regards
>>
>> On 10/21/15, Ali Hussein via kictanet <kictanet at lists.kictanet.or.ke>
>> wrote:
>> > Mwendwa
>> >
>> > Thanks for bringing this up.
>> >
>> > On a light note..Does my brother Walu still have a job at the Uni? :-)
>> >
>> > Seriously though, this sort of thing just takes us back 10+ years to
>> > the
>> > days of KANU.
>> >
>> > Ministry - Policy & Leadership
>> > Regulator - Regulate
>> >
>> > How difficult is that?
>> >
>> > I recall that after the new constitution was promulgated the hopes of
>> > the
>> > industry was that we will have a more robust and independent Regulator
>> > fashioned around the US Regulator - The Federal Communications
>> Commission.
>> >
>> > It is my humble view that we owe it to the world to set the highest
>> > standards for Regulation & Policy Formulation in the world as we are
>> > now
>> a
>> > recognised leader in innovation in the mobile space. Instead of the
>> > Executive looking to surround itself with more regulatorY powers they
>> would
>> > do better to recognise their role of formulating & guiding policy &
>> > leadership to move this country forward in the ICT Sector.
>> >
>> > Thanks & Regards
>> >
>> > Ali Hussein
>> > ali at hussein.me.ke
>> >
>> > +254 713 601113
>> > Twitter: @AliHKassim
>> > Skype: Abu-Jomo
>> > LinkedIn: http//ke.linkedin.com/in/alihkassim
>> > Blog: www.alyhussein.com
>> >
>> >> On Oct 21, 2015, at 10:01 AM, Mwendwa Kivuva via kictanet
>> >> <kictanet at lists.kictanet.or.ke> wrote:
>> >>
>> >> 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
>> >> <
>> 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
>> >> <mailto: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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>> >>
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>>
>>
>> --
>> Barrack O. Otieno
>> +254721325277
>> +254-20-2498789
>> Skype: barrack.otieno
>> http://www.otienobarrack.me.ke/
>>
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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.
>

-- 
Barrack O. Otieno
+254721325277
+254-20-2498789
Skype: barrack.otieno
http://www.otienobarrack.me.ke/