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Memorandum of Views ::attached::
by Alex Gakuru 15 Jul '07

15 Jul '07

[Following our meetings with Human Rights groups find attached views on the ICT Bill. -- AlexG] <excerpts> I hereby circulate the memorandum of views and initial draft critique in as far as the Bill as drafted threatens free expression and introduces really novel legal issues that have the potential of taking away constitutional rights. We had an urgent media stakeholders meeting on 12th July in which we discussed the Bill and were shocked by its implications. The ICT Bill comes in as the Kenya Communications (Amendment) Bill, 2007 - also a rather novel way of enacting a new law completely different from the original version. This particular amendment bill is very ambitious as it even amends other laws (including some constitutional issues!). This Bill has already been tabled in Parliament for 1st reading on 4th July and is speculated to go for second reading the week of 23rd - 27th July! Clearly there is need for more time for consultation on the Bill and the issues - kindly go through the Bills and raise more issues. Please read the critique and react ASAP - from the rooftops if possible! We need all pairs of eyes reading this Bill. (The Bill is also available on www.kenyalawreports.or.ke) There is a stakeholders forum to discuss the ICT Bill on Monday 16th July 2007 at the Safari Park Hotel convene by the PS and Ministry of Information. Kindly purpose to attend and raise issues of concern. Section 149 in the 2006 (repeated in Section 134 of published Bill 2007) is anti-FOI!!!! In relation to offences is there a jurisprudential reason to treat ICT offences differently and have them outside the penal code - forgery is forgery, fraud is fraud, theft is theft even with new technology. Are e-commerce offences different? The issues of recognition of electronic evidence are proposed to be addressed in the Evidence Act by the Bill - Offences should probably be addressed in the same way by amending the Penal code not writing ICT Offences part VIA. So far we have only been able to look at the provisions that relate to the regulator (CCK) media, broadcasting, free expression and free flow of information together with the legislative drafting issues. The Bill is largely concerned with licensing and regulations and it puts all issues of information and communication under one regulator. In our view this may not achieve the objectives of the Bill as far as enabling devt of ICT in Kenya and making as an ICT hub is concerned. One of the participants, Dr. Mary Muiruri also shared that the e-transactions law should be separate as is the case in countries that we need to compete with e.g. Singapore. The ICT Bill as is will not help us attract investors, BPOs - create jobs etc yet it seriously threatens broadcasters and freedom of media and expression for the people. (See FYI separate communications on this issue - so we don't appear to be fighting ICT devt in Kenya) Regulation of broadcasting media is allowed as the frequencies are a rare public good to be shared and broadcasting media is also more pervasive than print media - TVs and radios are in our sitting rooms but be that as it may and we support the regulation as should happen in a democratic society as per international standards the punishments and penalties for any breach must be proportional and not draconian - Loss of Broadcasting License and Seizure of equipment punishments and others in the Bill are far too much especially as the legal safeguards are weak and the independence of the all powerful CCK is questionable. A quasi judicial body like CCK cannot have as wide powers as the courts of law in meting out hefty punishments prescribed by the Bill. The Bill is really intent on creating crimes - is broadcasting uncomfortable content criminal? Putting together so many varied issues in one law not only makes the law hard to read but it mixes up principles and underpinning democratic ideals and international standards. In the case of the broadcasting there maybe need to have a separate broadcasting law and an amendment of the KBC Act to make it a proper public broadcaster with an independent board and editorial independence. We still need advise on other provisions of the Bill, so please help in this. Further if you are aware of any other critiques that have been done please share them. Something we also found interesting is the change of the Bill from the Original Version of the Communications Bill and The published Bill which has various far reaching provisions that are not found in the earlier Bill raising the question - why the draconian sections were introduced especially 129, 130 and 131. It is interesting and worrying that Minister in the Bill is very powerful and busy - as busy as the regulator. The Bill as we note in the memo threatens to bring back sedition law days. <ends> ____________________________________________________________________________________ Boardwalk for $500? In 2007? Ha! Play Monopoly Here and Now (it's updated for today's economy) at Yahoo! Games. http://get.games.yahoo.com/proddesc?gamekey=monopolyherenow

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[Fwd: [DigAfrica] Telkom Kenya’s wireless service is really ‘mobile service’ for tax purposes]
by alice 15 Jul '07

15 Jul '07

Mobile companies complain that Telkom Kenya's wireless service is really `mobile service' for tax purposes The reverberations of Telkom's official launch of its wireless service last week has resurrected a growing dispute within the telecommunications industry. The war of words between telephone operators intensified this week as Celtel once again appealed for clarification on the role of the national operator, saying Telkom's recently launched wireless service is acting in direct competition with its own. "All we ask for is fair play," said David Murray, Celtel's CEO. "Telkom Wireless is a mobile service and should be treated as such." The launch of Telkom Wireless has brewed dissent amongst mobile telephone players who are protesting against what they term unfair business practice. Both Safaricom and Celtel have appealed to the industry regulator, the Communications Commission of Kenya (CCK), to clarify Telkom's status. The firms say the national fixed line operator is now acting like a mobile service provider and has not paid for a license to operate. "It is a clear contravention of the regulations. They have a competitive advantage over us," said Michael Joseph, Safaricom's CEO. Celtel has now asked that Telkom either pay for a license to offer wireless services or be charged taxes like other mobile operators. Currently, mobile operators are taxed 16 per cent VAT and 10 per cent excise while Telkom just pays VAT. Mobile companies say they would be able to pass on lower calling costs to consumers if the taxes were lowered. But a fierce lobbying campaign started late last year by both providers failed to induce the government to reduce or remove the excise tax in this year's budget. The mobile players hope to meet the Minister of Finance to revisit the tax issue and to ask for definitive action to be taken on Telkom's status. The industry regulator has said that Telkom is merely leveraging existing technology to launch its wireless service, which it maintains is still a `fixed' telephony product. CCK's Director-General has maintained Telkom Wireless is the natural evolution of the national operator's fixed line service and is the result of the operator upgrading its equipment. "CDMA will fuel the growth of this industry. Telkom is merely upgrading its Instafon service, which was fixed line service, to the CDMA platform, which is wireless product," said CCK's John Waweru. 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Top 10 mobile Markets in Mid-East and Africa: Kenya knocks out Tunisia
by alice 15 Jul '07

15 Jul '07

Top 10 mobile Markets in Mid-East and Africa: Kenya knocks out Tunisia Tunisia has been in and out of the ranking of the top 10 MEA markets by customer base over the past year. It was pushed out by Iraq in Q2 2006, only to be reinstated three months later as Kenya failed to register any growth as a result of mass disconnections by Celtel. Having held its tenth place in December, a resurgent Kenya has once again ousted Tunisia, which falls to 11th place in the ranking for March 2007. In so doing, Kenya also bumps Israel down to tenth, a place which we expect Tunisia to take once more in the near future - in fact it is possible that it has already has with the end of Q2 2007 just over a week ago. For Q1 2007, at least, Israel's 7.8m customers marked the barrier for entry into the top 10. Kenya was a little way ahead with 8.4m and Iraq the same distance in front of Kenya with 9.0m customers. From eighth placed Iraq up to first placed South Africa the ranking remains as it was three months ago in the review for the fourth quarter of 2006, although the relative positioning of the occupants of the places has changed. At the head of the table, Nigeria is catching South Africa, reducing a deficit of 5.4m at the end of 2006 to only 3.4m customers at the end of Q1 2007. We expect Nigeria to become the Middle East & Africa's largest market by connections before the third quarter is out, although this does not necessarily signify that the number of real mobile users is higher. In fourth place, Saudi Arabia got to within 350k customers of Algeria and may well already have taken its third place, whilst fifth placed Egypt closed the gap on both of them. Morocco's sixth place is also under threat from Iran, which cut the gap by 80% from 1.68m to just 0.33m during Q1 2007. Three months ago, Mobile World looked at the size of the mobile markets in the ten largest countries in the MEA region, since four of this list are not in the current top ten ranking by customers shown in the chart above. The most likely member of this group to claim its rightful place is Tanzania, which lay in 12th place with 6.2m customers at the end of Q1 2007 but is in fact the continent's eighth most populous country. The most likely casualty will once again be Tunisia, which is likely to have taken back tenth place from Israel in the meantime. Next to enter the top ten could be either Sudan or the Democratic Republic of Congo. The Democratic Republic of Congo is the larger country, with a population of 64.1m to Sudan's 42m, but it was Sudan which stood further ahead in the ranking by customer numbers, with a base of 5.6m to Congo's 5.1m at the end of Q1 2007. The fourth rightful member of the top 10 is Ethiopia, MEA's third largest country by population, although it will most likely be several years before this market enters the top 10, finishing Q1 2007 as it did with a customer base of 1.4m. In the long run, by implication, Algeria, Saudi Arabia and Iraq should all lose their top 10 places (in addition to the aforementioned Israel) although if penetration rates follow the European model - and there is no reason to believe they won't - the situation is unlikely to prove to be this simple. (Source: Mobile World) Balancing Act

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Fwd: ICT Bill - wish list, Day 4 of 4.
by Alex Gakuru 15 Jul '07

15 Jul '07

[For some reason mail sent to <kictanet(a)kictanet.or.ke> now appears not to get through. Could others be having my problem?, change your kictanet list email address to <kictanet(a)lists.kictanet.or.ke>] --- Alex Gakuru <alex.gakuru(a)yahoo.com> wrote: > Date: Sun, 15 Jul 2007 03:29:38 -0700 (PDT) > From: Alex Gakuru <alex.gakuru(a)yahoo.com> > Subject: ICT Bill - wish list, Day 4 of 4. > To: Kictanet <kictanet(a)kictanet.or.ke> > > [eICT Bill download pointer courtesy of the Freedom > of > Information Network run by International Commission > of > Jurists - Kenya Chapter -- AlexG] > > http://www.kenyalaw.org/Downloads/Bills/communications_bill_2007.PDF > > see other eBills: > http://www.kenyalaw.org/Bills/ > > eKenyaGazette: > http://www.kenyalaw.org/KenyaGazette/ > > Alex > > > > ____________________________________________________________________________________ > Fussy? Opinionated? Impossible to please? Perfect. > Join Yahoo!'s user panel and lay it on us. > http://surveylink.yahoo.com/gmrs/yahoo_panel_invite.asp?a=7 > > > ____________________________________________________________________________________Ready for the edge of your seat? Check out tonight's top picks on Yahoo! TV. http://tv.yahoo.com/

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ICT Bill - wish list, Day 4 of 4.
by Alex Gakuru 15 Jul '07

15 Jul '07

[eICT Bill download pointer courtesy of the Freedom of Information Network run by International Commission of Jurists - Kenya Chapter -- AlexG] http://www.kenyalaw.org/Downloads/Bills/communications_bill_2007.PDF see other eBills: http://www.kenyalaw.org/Bills/ eKenyaGazette: http://www.kenyalaw.org/KenyaGazette/ Alex ____________________________________________________________________________________ Fussy? Opinionated? Impossible to please? Perfect. Join Yahoo!'s user panel and lay it on us. http://surveylink.yahoo.com/gmrs/yahoo_panel_invite.asp?a=7

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Draft recommendations of the national task force on transition to digital broadcasting call for comments/input
by alice 15 Jul '07

15 Jul '07

(Apologies for cross posting) Not sure how many of you have seen/saw the public notice call for comments on the draft recommendations of the national task force on transition to digital broadcasting? see: http://www.cck.go.ke/html/publicnotices.asp?newsid=222&area=&type= the notice is calling for comments/input on the draft report on or before the 24th of July 2007 The switch to digital broadcasting systems will allow us to enjoy multiple broadcasting services, improved video and audio quality as well as greater spectrum efficiency, the notice says in part. For those interested especially media sector, please have a look and ensure that our views/comments and input are submitted. best alice

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ICT Bill - wish list, Day 4 of 4
by Alex Gakuru 13 Jul '07

13 Jul '07

Dear Listers and Listeners, Thank you for stating a wish or two, online or off line and your unending passion of technology, communication, and information. We are concluding this matter today to compile our Monday's presentation. Unless there is a burning wish still unsaid, permit Walu and I to compile the Wish List. Sincerely, Alex & Walubengo(shortly logging out off the Wish Listing session) ____________________________________________________________________________________ Food fight? Enjoy some healthy debate in the Yahoo! Answers Food & Drink Q&A. http://answers.yahoo.com/dir/?link=list&sid=396545367

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ICT Bill - wish list, Day 4 of 4.
by John Walubengo 13 Jul '07

13 Jul '07

here's another gem from the past on the ICT bill...a summary of proceedings. KICTANET ICT BILL ANALYSIS WORKSHOP HELD ON FRIDAY, 16TH JUNE 2006 AT THE JACARANDA HOTEL walu. ...and with that I have officially ran down on ICT wishes. Probably not, one more, I finally wish that wishes were horses then we could all fly {-by the way I have never understood what the Englishman had in mind with this phrase, but i like the way it sounds ;-)} ____________________________________________________________________________________ Take the Internet to Go: Yahoo!Go puts the Internet in your pocket: mail, news, photos & more. http://mobile.yahoo.com/go?refer=1GNXIC

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link to KC amendment bill
by Rebecca Wanjiku 13 Jul '07

13 Jul '07

here is the link to the documents and a critique follows below http://africa.rights.apc.org/index.shtml?apc=he_1&x=5077882 Communications ( Amendment ) Bill 2007 This section changes the name of the Act, introduces new definitions, ICT policy development and promulgation , governance of the sector and constitution of the regulator , fines for contravention of the act Some areas that warrant attention are - policy formulation in the ICT sector . ICT stakeholders participated in the ICT formulation process for the first time in 2006 and now have a sense of ownership to that policy. This is as should be because the government strategy is to use the private sector to drive growth . The proposed clause 5 fails to take into account the lessons learned from the policy formulation process and locks out all other stakeholders in policy formulation - governance - Minister can appoint unlimited number of the board members to the CCK board because the operative language for all appointments in clause 6 is .. at least one --- . No advantage can be demonstrated. All other regulators have an upper limit on the board members who range from 5 to 9 members. Secondly , almost all others have no government officers to avoid conflict of interest where government has shareholding in operators and in any case the regulator implements policy promulgated by the government thirdly all the board appointments are heavily tilted to the supply side and only one appointee will represent the consumer side These concerns were pointed out by KICTANET but have not taken on board Muriuki Mureithi Colleagues As you are aware the Kenya Government has at last published the Kenya Communications (Amendment) Bill 2007 . The purpose of the Bill published on May 17th , 2007 ( world telecommunications day) is to amend Kenya Communications Act 1998 . The structure of the bill as a follows; Clause 1 - 14 - change of name, new definitions, ICT policy development and promulgation , governance of the sector and constitution of the regulator , fines for contravention of the act Clause 15 - introduces part IVA on broadcasting services - regulation , licensing and revocation , and promotion of local content Clause 16 -29 - enhances penalties of the contravention of the Act, reduce the duration of notice of a grant of licence, refusal to grant or modification, exclude certain classes in the notice of grant of licence Clause 30 . introduces part VIA on information technology - legal recognition of electronic communications, electronic records and electronic transactions , offences . introduces part VIB universal service fund - establishment and operationalisation . introduces part VIC Fair competition and equal treatment - definition of dominant operator , investigation of unfair treatment clause 31 introduces miscellaneous provisions on National communications secretariat, establishment of the advisory councils ( content and universal service), action in the occurrence of an emergency, use of information by an operator, service to CCK etc clause 33 introduces two schedules . fourth schedule - operation of advisory councils - content and advisory . fifth schedule - transitional provisions and proposes to repeal other acts - Kenya broadcasting act, penal code, evidence act , part VII electronic records To understand the implication of the Bill , you need to study the Kenya Communications Act 1998 which is being repealed and the Bill itself . Once enacted the governing law will be information and Communications Act and will have far reaching implications in the sector for the next decade or so. it is therefore important for stakeholders to study the document. KICTAnet facilitated a review of the Kenya Communications Act 1998 last year using the a draft bill prepared by the Ministry of Infocom and developed a report supported by the stakeholders. This document made a number of proposals which were presented to the Permanent Secretary Dr Bitange Ndemo. Some of the proposals have been included in the Bill As this Bill awaits discussion in parliament , KICTANet wants to facilitate an informed debate on the Bill , these comments are intended to support the evolution of a law to make Kenya effective user of ICT for development .I invite you to read the Kenya Communications Act 1998, the Kenya Communications ( Amendment) Bill 2007 and the proposals by KICTANET as a resource for your comments . The Act and the Bill are available at the government printer and meanwhile we are making arrangements to scan have all documents hosted in a website for ease of access by end of Wednesday . We start the online discussion on Thursday 7th and will start with Clause 1-14 and follow the sequence . In the meantime , we welcome any comments on the structure and the process of online discussion between today and Wednesday 6th Regards Muriuki Mureithi From: Harry Hare [mailto:harry@africanedevelopment.org] Sent: 12 June 2007 12:09 To: mureithi(a)summitstrategies.co.ke Cc: 'KICTanet Committee' Subject: RE: [committee] KC amendment bill Dear MM, You know how we operate in terms of reading documents! I would propose that you pick out the contentious clauses and sections of the bill and invite debate on the same. This way you would probably generate interest. Some of these clauses were outlined in Mucherus email of last weekdefinition of broadcasting, licensing of domain names etc. My interest however is in section 89-98 of the bill is was partly *borrowed* from the UNCITRAL Model Law on eCommerce of 1998. There are significant changes in the text that the said law has undergone through the various UNCITRAL Conventions and the UNCITRAL Model Law on eSignatures of 2001. It would be interesting to benchmark that section with the available text. I notice that they have left out some sections of the 1998 model law and this could pose danger in terms of interpretation of the law if it was a quick cut and paste job. One of the notable omissions (as far im concerned) for instance is the definition of electronic signatures which is found in the model law. The draft bill does recognize electronic signatures but is silent on what they are, this could cause serious interpretation problems. In the model law, the electronic signatures are defines and goes ahead to specify the validity of electronic signatureswhat I dont understand is why the drafters left out this crucial section of the law. Kindest regards Harry Tel. 254 720 318 925 blog:http://beckyit.blogspot.com/ --------------------------------- Take the Internet to Go: Yahoo!Go puts the Internet in your pocket: mail, news, photos & more. _______________________________________________ committee mailing list committee(a)kictanet.or.ke http://kictanet.or.ke/mailman/listinfo/committee Tel. 254 720 318 925 blog:http://beckyit.blogspot.com/ --------------------------------- Choose the right car based on your needs. Check out Yahoo! Autos new Car Finder tool. _______________________________________________ committee mailing list committee(a)kictanet.or.ke http://kictanet.or.ke/mailman/listinfo/committee

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monthly forum on july 19th, Jacaranda
by Rebecca Wanjiku 13 Jul '07

13 Jul '07

the monthly forum will take place next week on thursday at jacaranda, 3pm please plan to attend and add your voice, regards Tel. 254 720 318 925 blog:http://beckyit.blogspot.com/ --------------------------------- Boardwalk for $500? In 2007? Ha! Play Monopoly Here and Now (it's updated for today's economy) at Yahoo! Games.

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