Thanks Walu for throwing the spotlight on the proposed KIC Act amendments.

Beyond any doubt, the intricacies inherent in crafting policy /regulations are complex and sometimes difficult to balance. I have reflected on the proposals and if my comprehension is correct, the ultimate aim of these amendments is not to empower or dilute the mandate of any institution but probably to streamline the regulatory process.

Quite recently we had an embarrassing theater of absurd when the Communications Authority and the CS ICT forwarded parallel and half baked proposals to parliament even without bothering to seek some free legal advise from the Attorney General's office. As expected the regulations which were also crafted to steal a match on the industry players were pronounced dead on arrival.

Notable among the objectives of the current amendments are the following:
1. To align the KIC Act with the competition Act- This could be a step in the right direction considering that at the time KIC Act was enacted, the Competition Act had not even been envisioned. From an objective standpoint, the competition authority is more relevant in terms of dealing with the dominance among other competition oriented issues. Its also valid to note that CA has lately performed deplorably in so far as safeguarding consumers from the telcom market vagaries is concerned.

2. Harmonization of regulation making power so that it is exercised by the CS in consultation with the CA- There is nothing absolutely wrong with the CS providing policy guidelines to CA. After all CA's role should largely be to "regulate" (referee) and not to make regulations per se. CA's focus should be on compliance monitoring. A model where the referee is empowered to develop rules as the game advances is a fertile ground for arbitrariness. Thus the proposed arrangement promises a modicum separation of powers such that the ministry takes the lead in broad policy formulation while CA executes the specifics of the policy. Too much regulatory authority is neither good in the hands of the CA or those of the CS. Both have a propensity to overstretch their mandates if left unguarded.

Fortunately the Constitution is clear about the primacy of public participation in all forms of rule making. Should any party to whom this mandate is bestowed attempt to veer off the track, or formulate repugnant regulations, then the ever-patriotic stakeholders will not hesitate to use the necessary means to assert the fear of God.

Kamotho

On Wed, Oct 21, 2015 at 8:44 PM, Walubengo J via kictanet <kictanet@lists.kictanet.or.ke> wrote:
Thnks Eng. Kariuki,

I wish you were still in government, then at least we will know we are engaging with a key stakeholder who has been too economical with his written word aka gone silent  on social media :-)

That said, I do appreciate your remarks but not quite convinced they explain the fact that the amendments when read in plain english (unfortunately I have zero training in legal matters), they actually put serious regulatory power under the minister.

I have nothing against Dr. Fred Matiangi wielding such powers since I kind of like him :-) But what happens when he leaves office and is replaced by someone I /you/we do not like. Someone power hungry. Someone corrupt?

Basically it boils down to checks and balances. Otherwise known as Governance structures, where the Minster is restricted to making the policy and legislation, the regulators restricted to making the rules as per those ministerial policies and legislation, while the industry plays by the rules made by the regulator.

Right now its like we are creating the minister to be the judge, the jury and the prosecutor. I would need a lot of coffee dates to be convinced otherwise :-)

walu.
nb: I will also look for Vitalis, Obam and Kihanya - they know why :-)



From: John Kariuki <ngethe.kariuki2007@yahoo.co.uk>
To: Walubengo J <jwalu@yahoo.com>; KICTAnet ICT Policy Discussions <kictanet@lists.kictanet.or.ke>
Sent: Wednesday, October 21, 2015 8:16 PM

Subject: Re: [kictanet] Planned amendments bode ill for Communications Authority

Walu,Listers

As a student of Telecommunications Law and having read the 1998 Act gazetted on 9th November,1998 and also the 2009 Amendment Act gazetted on 2nd January,2009 and further having read the Amendment Act(No.41A of 2013)  let me share some views:  
1 Deletion of s.2 on definition of “dominant telecommunications service provider” and making reference to Competition Act simply aligns the two legislations and is a positive step and is in line with the good international practice. You may perhaps recall that this clause appeared in 2009 in the absence of separate competition law.
2. The amendments of Sections s.5B(5) upto s.83V are quite standard in Telecommunications Law and you will find it in sections 27(1),sections38(1) etc. of the 1998 Act.They are also retained in the 2009 Amendment.
3. Deletions of s. 84W(4) and s.84W(5) are a consequence of deletion under s2 above.

So the amendments in my view are really not as bad as they may appear.

Regarding independence, you may recall that the definition in telecommunications sector is derived from international law, in particular WTO(GATS-General Agreement on Telecommunications Services) and I quote “
The WTO, GATS Reference Paper defines “Independent Regulator” as
‘separate from, and not accountable to, any supplier of basic telecommunications services. The decision of and the procedures used by regulators shall be impartial with respect to all market participants’.
EU directive 97/51 requires the establishment of national regulatory agencies and puts the condition that these:  ‘shall be distinct from and functionally independent of all organizations providing telecommunications networks, equipments and services’.
 
You may also notice that the drafters of the Kenya Constitution declined to list the then CCK as one of the independent commissions which necessitated change of name.
Walu if there are  some details or clarification required ,I will be willing to share them off-line.
 

John Kariuki



From: Walubengo J via kictanet <kictanet@lists.kictanet.or.ke>
To: ngethe.kariuki2007@yahoo.co.uk
Cc: Walubengo J <jwalu@yahoo.com>
Sent: Wednesday, 21 October 2015, 12:26
Subject: Re: [kictanet] Planned amendments bode ill for Communications Authority

@Ali,

am still on duty at MMU (but not sure for how long :-)

But yes, 
Ministry = Set policy, 
Regulator = Regulate, 
Industry = Play by the rules.

Then life should be easy for everyone.

walu.




From: Ali Hussein via kictanet <kictanet@lists.kictanet.or.ke>
To: jwalu@yahoo.com
Cc: Ali Hussein <ali@hussein.me.ke>
Sent: Wednesday, October 21, 2015 10:31 AM
Subject: Re: [kictanet] Planned amendments bode ill for Communications Authority

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@hussein.me.ke

+254 713 601113
Twitter: @AliHKassim
Skype: Abu-Jomo



On Oct 21, 2015, at 10:01 AM, Mwendwa Kivuva via kictanet <kictanet@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.


There is a proposed bill, the Miscellaneous Amendment Bill 164 of 2015 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@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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