Hi Eric,
Unless containing illegalities or infringing on
others' rights, I believe the Law of Contact gives
agreements between qualified persons more weight than
regulatory intervention or government policy for that
matter. Regulatory intervention steps in when the
parties cannot agree among themselves first and where
the regulator cannot resolve a matter, then Supreme
courts step in and pick it from there.
CCK helps resolve long-standing complaints or disputes
only after several direct resolution attempts and,
with respect to consumers, explores ways of assisting
consumers that opt for litigation.
Business people know that by the time they leave court
rooms, they are forced to bask quite of their torn
underclothing in the open hence their preference to
seek low-key "quieter" regulator and arbitrators to
resolve their business competition kerfuffles.
Although I am yet to know where they are located (read
FOI),the government recently announced the formation
of an Office of Ombudsman (DAILY NATION 22/06/2007)
"to deal with public complaints" for alternative
dispute resolution - heralded as "an administrative
move by the President that is purely geared towards
addressing issues that have bedeviled Kenyans without
nowhere to turn to" by a member of our consumer
network.
Back to the issue at hand...
When disputants involve third parties, and the public
through media, obviously a deadlock or stalemate was
encountered somewhere breaking down their conflict
management process. Therefore, I find it inappropriate
to agree with Micheal Joseph and Peter on hushing up a
matter already in the public domain, unless they agree
and inform the public that they have both agreed to
resolve the issue through mutually agreed arbitration
and the choice of the arbitrator must not (or even be
seen to) be biased.
When Edith asked Michael Joseph to enlighten us on
those other issues, he said wished not to discuss in
view of (print) media rather his proffered arbitrator
and not burden regulator with the dispute. To me this
raises a concern whether his preferred arbitrator
could be considered unbiased or neutral considering
that the matter had reached the regulator height. He
appeared to advocate “reverse-driving” and without
shedding light on the compelling ahead obstacle
necessitating this action.
Add to all of this mix blaming of the media
circumstances become even more suspect. If one has
nothing to hide in *any* dispute why shut out and
blame the media for printing the smoke (above the
fires).
Perhaps you understand why I appreciate professional
journalist predicaments.
<snip>
Those who equate journalism with such licensable
professions as law and medicine misunderstand the
nature of journalism. Journalism is founded on freedom
of expression. It is also an open book. There is no
need for licensing.
Every day is a licensing day for journalists because
they cannot hide their mistakes. There is an old
saying: "Doctors bury their mistakes, lawyers hang
them, but journalists put theirs on the front page."
<snip>
Either MJ enlightens us on undercurrents information
supporting his arguments or they agree to agree or
disagree through the press and what they intend to do
next... But meanwhile, are all entitled to speculate
on all sorts of most imaginative conspiracy theories.
I suspect I did not rescue you Eric, but I hope this
adds something?
Alex
Dear Peter,
I also think this should be abitration after the two
parties did not
agree between themselves but one of them prefered to
take it to the
regulator whether rightly or wrongly but thats their
choice. The
regulator can then ask them to go abitrate. In Ghana
when a similar
situation happened between GT and IGH, the issue
went up the
regulator and the regulator said, thier next line of
call after they
could not agree was to abitrate and if abitration
does not work then
they come to the regualtor and if the decision of
the regulator does
not work then the courts comes in. Our regulations
provide for such
progression but i dont know about yours, may be Alex
G. can again
come to my rescue.
Your last issue boaders on dominate market share,
now as far as i
know Kenya does not have competition regulation but
ideally that
should take care of such growths in the market as it
is in the EU. Am
just reading a story of Microsft surcumbing to that
regulation in the
EU.
Eric here
On 23 Oct 2007, at 12:49, Peter Othino wrote:
Hi Eric,
I do agree Michael Joseph and the situation should
be arbitration
and not a
regulator handling commercial differences in the
field.
Looking at it on the reverse, the current Telkom
Operation on their
CDMA
platform they are no different from a GSM provider
yet I believe the
licensing conditions were different this to me has
no direct
commercials but
a regulatory aspect but I do not remember it being
handled despite
concerns
raised. I do not believe that parties need to
complain for
regulation to be
effected as that would kill the whole concept and
drive about self
regulation that is the ultimate desired position.
Yet again if a provider gets powerful for it is
position in the
market I
believe it is part of the Matrix as this comes
either as tangible or
intangible value adds above the rest associated
with the service
delivered.
Thanks,
Peter Othino
-----Original Message-----
From: Timothy Kasonde KASOLO
Sent: Tuesday, October 23, 2007 12:08 PM
by EASSY Workshop
Participants
Cc: APC - Private list for use by EASSY Workshop
Participants;
KICTAnet ICT
Policy Discussions
Subject: RE: [Fibre-for-africa] RE: [kictanet] The
tables are turned
Hello,
I think the media needs to be balancing the
articles ....
Timothy
Michael,
It would help to hear your side of the story so
we can all be
informed.
We unfortunately do not have other sources of
information at this
point
other than the media.
Looking forward,
Edith
-original message-
Subject: [Fibre-for-africa] RE: [kictanet] The
tables are turned
Date: 23/10/2007 10:53 am
What you have not mentioned whether the complaint
had any merit and
whether the Parties could not have resolved it
between themselves
rather
than relying on the CCK to mediate every
commercial dispute. There is
much more to this than just the one-sided view
quoted by the media
but
we have chosen not to try to resolve our disputes
through the media.
Regards
Michael
CEO
Safaricom Limited
________________________________
From:
On Behalf Of Eric Osiakwan
Sent: Sunday, October 21, 2007 12:27 AM
To: Michael Joseph
Cc: APC - Private list for use by EASSY Workshop
Participants;
KICTAnet
ICT Policy Discussions
Subject: [kictanet] The tables are turned
Dear All,
We are really living in interesting times
especially in the ICT
industry
because a few years ago, it was the mobile
operators and ISPs who
would
be knocking on the doors of the regulator
complaining and sometimes
weeping at the anti-competitive practices of the
imcumbent PTT
towards
them.
Today the tables have turned and in Kenya as per
the story below,
Telkom
Kenya is rather asking CCK to put Safaricom in
check because they are
acting anti-competitively on the SMS platform
against their CDMA
operation. Five years ago, this would have being
an "incorrect
prophesy"
but it has happen sooner than all would have
expected.
=== message truncated ===>
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