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@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 Mucheru’s email of last week…definition 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 signatures…what I don’t understand is why the drafters left out this crucial section of the law.

Kindest regards

Harry