Comments from a leading Lawyer. Hi Bill, It appears that the PS may be right. There is a legal and procedural complication. Let us go through the sequence of events: 1. The Kenya Communications Act, No. 2 of 1998, was enacted in 1998. This was by the KANU government. Section 88 of the Act provides for "Powers on occurrence of emergency". This gave the Minister for Internal Security the power to take temporary possession of any telecommunication apparatus in the event of a declaration of any public emergency or in the interest of public safety and tranquillity. 2. On 18th July 2008 the Government published the Kenya Communication (Amendment) Bill, 2008 . The Memorandum of objects and reasons states that the principal object of the Bill is to make certain necessary amendments to the Kenya Communcations Act, No. 2 of 1998. The proposed amendments are to help streamline and introduce regulatory provisions in electronic transactions and broadcasting which are presently weak. An example would be to make theft of electronic data criminal as at the moment theft is only defined as the unlawful taking of goods and livestock. The Bill merely sought to bring the Act up to date with technological developments in IT and to strengthen the Act in areas where it is weak. 3. The Parliamentary Departmental Committee on Energy, Communications and Public Works considered the Bill and received representations from various parties. The Committee made recommendations for various amendments to the Bill. 4. One of the Committee's recommendations was that the Bill be amended by inserting a new clause deleting section 88 of the Act. Please note that section 88 of the Act already exists. The Bill as introduced by the Minister did not seek to delete section 88 of the Act. The Committee however proposed that deletion by seeking to amend the Bill. 5. Parliament rejected this proposed amendment of the Bill. Parliament passed the rest of the Bill as proposed by the Minister and with the other minor amendments that had been agreed. 6. The Bill shall now be forwarded to the President for his assent. 7. Section 46 of the Constitution provides that when a Bill had been passed by the National Assembly it shall be forwarded to the President for his assent. Where the President refuses to assent to a Bill he shall, within fourteen days of the refusal, submit a memorandum to the Speaker indicating the specific provisions of the Bill which in his opinion should be reconsidered by the National Assembly including his recommendations for amendments. 8. The Bill as forwarded to the President shall NOT contain the Committee's proposal to delete section 88 of the Kenya Communication Act. There shall therefore be no provision relating to section 88 in the Bill for the President to send back to Parliament. Thus it would appear that the only way to delete section 88 is to publish a miscelleneous amendment Bill. Anyway, if the intention is to delete section 88 of the Act I do not see the problem with publishing a fresh Kenya Communications (Further Amendment) Bill, 2008, to that effect. This would now be a short Bill that can be drafted within a couple of hours and published by Friday this week or even earlier. The Minister can then explain the complication relating to the President rejecting the Bill and the fact that the new Bill shall take care of section 88. I find no precedent for a Further Amendment Bill but I also find no law that prevents the publication of one. The standing orders prevent the publication of Bill for a period of six months after Parliament has rejected it. It may therefore arise as a matter in issue if a Member questions why a proposal rejected by Parliament is being brought back before six months have lapsed. But that is a debateble issue as this would not be the re-introducation of a Bill but a Further Amendment Bill. Please note that the Bill made no mention of section 88. Indeed the section has been in existence for ten years and was only receiving sporadic criticism till now. The Media took advantage of the Bill's publication to push for the deletion of section 88 and have now escalated their demand for its deletion. On 12/15/08, n_macharia@yahoo.co.uk <n_macharia@yahoo.co.uk> wrote:
Dear Dr Ndemo, This is the most honable thing to do. Members need to contribute from a point of knowlewdge. Its unfortunate kenyans stand to lose the gains we have so far made.
What disturbs me is that we aren't negotiating for freedom of expression- a right to all kenyans and the human race! But kenyans are being taken for granted to fight for MOA. The truth is that the same journalists are exploited n conned of their professional rights at the expense of keeping a job. All other professions cherish regulation to guarantee that individual as well as group, communities n society's are freedom and rights protected and that the quality of life is continuously being improved.
Publish the entire bill to elicit unbiased n kwoledgeable debate. My own opinion. Sent from my BlackBerry(R)
-----Original Message----- From: bitange@jambo.co.ke
Date: Mon, 15 Dec 2008 10:25:40 To: <n_macharia@yahoo.co.uk> Cc: KICTAnet ICT Policy Discussions<kictanet@lists.kictanet.or.ke> Subject: Re: [kictanet] [ke-internetusers] Kenya communications (amendment) Bill: Is media overacting?
Dear Edith, We are uploading the published bill in the next one hour. It will indeed help if everybody reads it before they make any comments. I would want anybody to point any section in the published ammendment that limits press freedom. You participated in most of our early interactions and the intent on the broadcast section was very well understood - to introduce proper regulatory mechanism.
My friend Kaikai wants me to prove that in the past few days media has been propagating violence. Most of you saw their plan of action which lawyers tell me amounts to serous offence.
Ndemo.
It worries me that the masses are taking sides depending on what others say, rather than to read the bill themselves. Is there a "popular version" of the bill for ordinary Kenyans? Can we get a copy of the current bill or be pointed to where the latest version can be downloaded? This information is not necessarily within the public domain.
It is high time we do not leave our future in the hands of afew, but let everyone be educated about the issues at hand so they can engage from an informed standpoint - we need an OPEN parliament. We have enough digital tools to allow interaction between parliament and the governed.
Edith
________________________________________ From: kictanet-bounces+eadera=idrc.or.ke@lists.kictanet.or.ke [kictanet-bounces+eadera=idrc.or.ke@lists.kictanet.or.ke] On Behalf Of alice [alice@apc.org] Sent: 14 December 2008 19:40 To: Edith Adera Cc: KICTAnet ICT Policy Discussions Subject: Re: [kictanet] [ke-internetusers] Kenya communications (amendment) Bill: Is media overacting?
David,
Perhaps the media could start by reporting accurately. Some of the sections the media find so offensive already exist in the 1998 communications act. So why not present the big full picture to all and especially the public?
alice
(Views expressed are personal and not a reflection of any of the organizations I am affiliated with)
dmakali@yahoo.com wrote:
Wainaina I can't argue against your sources but am certain that stage of black out for mps hasn't been reached at all. In fact we are meeting tue to evaluate exactly the import of the passage of that bill and bring every1 on the same page. Of course blacking out not just some 25 mps but all is very much a possible line of action. And for good reason- these mps did not consider ANY of the changes we proposed. That gang approach doesn't lend itself to decent engagement frm the media. They have abused their power and ignored our views, not reasonably but glibly. I am totally in agrment with thoz who argue the broadcast media needs regulation, because it is true. I don't even share some defensive views about ownership held by moa- I see no value in nmg getting more radio or tv frequencies for eg coz they already have too many, or royal media having all thoz frequencies. Its simply obscene. But that is a diff story frm govt getting into micro management of media conent or , the minister having power to raid and confiscate equipment or occupy or take over a media house. There was no emergency wen michuki used mercenaries to raid standard. Plus the ethical issues being raised about content can and are already addressed under the media act. The worst thing you want is to invite govt fiat into content matters. You will rue the day you get a dictatorial govt. Examples are many. Similarly, how do you allow the minister to give directions to a commission that's supposd to be independent? He shud take its advice not rubber stamp his decisions. And how do you have a commission appointed solely by the minister without any guidelines? Criteria to follow? Finally did you see the clause about kbc? Nothing about its roles, and obligations? Even the principal act is beta! Well, wainaina and other kictanets, it would be useful to speak to these issues even as you condemn the media for obviously lopsided reporting and wailing. David
Sent from my BlackBerry(R) wireless device
-----Original Message----- From: "Wainaina Mungai" <wainaina@madeinkenya.org>
Date: Sun, 14 Dec 2008 17:53:55 To: <dmakali@yahoo.com>; KICTAnet ICT Policy Discussions<kictanet@lists.kictanet.or.ke> Subject: Re: [ke-internetusers] Kenya communications (amendment) Bill: Is media overacting?
David,
I am very much involved the media and you & I know that it was agreed that the Action Plan includes a "blackout to..." as well as all the issues I indicated.The point is clear. I have told the truth relating to the content of the Action Plan.
The question of execution is separate. Ndemo having been on K24 is does not change much but it is not in line with the Action Plan....meaning, we need to complement K24 for that step.
Let's be honest in our submissions especially concerning such revelations.
Wainaina
On 12/14/08, dmakali@yahoo.com <dmakali@yahoo.com> wrote:
That's not true. You have obviously exaggerated in trying to put across your cheap propaganda. Ndemo was on k24 this morning and he was of course not opposing the bill. Plus, you should ask yourself, who has come out to support the bill and not been given airtime. Yes, the media is campaigning, but it has not yet agreed or employed any of the strategies you have listed. Their time is coming. And we don't need to go to previous regimes to show brutal attacks against the media. The worst have taken place under the current regime! You have more to be grateful than disgusted with the media. Be just a little more reflective and considerate otherwise your diabolical hatred of the media lacks foundation. David Sent from my BlackBerry(R) wireless device
-----Original Message----- From: "Wainaina Mungai" <wainaina@madeinkenya.org>
Date: Sun, 14 Dec 2008 17:08:09 To: <dmakali@yahoo.com> Cc: KICTAnet ICT Policy Discussions<kictanet@lists.kictanet.or.ke> Subject: Re: [kictanet] [ke-internetusers] Kenya communications (amendment) Bill: Is media overacting?
The truth is that the "supporters" you see on TV, hear on radio, read in papers are not by accident. The Media Owners Association (MoA) crafted a campaign strategy that includes the "media blackout to all MPs who supported the Bill and The Ministry of Information & Communications".
According to persons privy to the media campaign strategy, we have a big problem here and it's about time Kenyans were told the objective truth. Unfortunately, the people who own the media houses are determined to use every possible means to ensure the Bill is not signed. You will not hear a supporter of the Bill being given coverage.
Why?
The strategy is clearly not intended to yield an objective result. The intention is to shape public opinion even through biased reporting. The strategy includes:
1. Ensure President dioesn't sign the Bill, by publicly petitioning him. 2. Take advantage of Jamhuri Day to show images of raids conducted by previous regimes. 3. Run a media campaign that includes 'same headline' in all papers and similar headlines on electronic media. 4. Shape public opinion through campains and show that the Bill is unconstitutional...etc etc 5. Blackout all supporters of the Bill, Ministry & only invite civil society players who support the interests of the media. Keep watching and you'll notice the biased reporting. 6. The coverage of the issue in the weekend papers (circulation) is also part of the strategy. This will not stop until the President yields to the Media's agenda.
The media has the right to petition the President but the problem with their campaign is that Media Owners have actually agreed not to cover the issue objectively. They have conspired to shape public opinion by all possible means including excluding all those who have a different opinion.
In doing so, they demonstrate the need for legislative regulation. The nation is now at the mercy of the media and the public will only be fed with one side of the story.
Over to you. Wainaina
On 12/14/08, Kinuthia Muchane <muchanek@gmail.com> wrote:
Habari, Maybe the media is overacting, maybe the the MPs are wrong... But one interesting thing about this issue is the timidity of the MPs, to begin with, in the news all I am hearing are our dear elected representatives vowing their undying support for all sorts of freedom, including that of Press, so my question is, isn't there one, single MP who supported passing of the Bill who can come out in defence of his or her stand? Or is it because they always pander to the Press, they do not want to be seen in 'bad' light .
On the other hand, most of us take what we hear on the radio or watch on TV as gospel truth, and the unfortunate fact of life is that the majority of us have no other source of information, or do not seek other avenues of getting information, a fact very well known by members of the so called "Fourth Estate". So when they drench us with "details" about the dangers of the bill's amendment no matter how skewed their opinion is, we will believe them hook, line and sinker! If you ask me, in a country like ours with a very shaky social, political and economic foundation, these merchants of "information" should be very closely and regularly monitored, a Radio Mille Collines can happen here very easily... In any case, ain't all these media 'houses' just commercial enterprises out to make a tidy profit?
Kinuthia...
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