[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