I probably come in late to the foray of the discussion, but am not in the country and could not get my hands on the right copy. Thanks for posting it online Dr. Ndemo and team. My comments to the bill and as also assisted a legal friend,
1. This is not a media bill as many have led everyone to believe. It is a Kenya Communications (Amendment) Bill 2008.
2. The bill proposes to amend the Kenya Communications Act 1998 as hereunder (this is in a nutshell of course):
1. Enhancing the regulatory mandate by allowing for the regulation of broadcasting content (this covers only electronic media and not print media)
2. Providing for the recognition and licensing of a ccTLD registrar
3. Providing recognition for electronic transactions including e-contracting, digital signatures as well as propose amendments to existing legislation e.g. the evidence act allowing for submission of digital copies evidence, recognition of e-crimes in the penal code etc.
The bill mentions nothing, as far as the government shutting down media freedoms is concerned.
What the media are up in arms about and misleading every right-thinking Kenyan is the provisions of the current section 88 of the Kenya Communications Act, which provides for the powers of the minister for internal security on the occurrence of any public emergency or in the interest of public safety and tranquility.
The section allows the minister to take temporary possession of any telecommunications or radio communications apparatus on the occurrence of such an emergency. This action by the Minister is only allowed pending the existence of the emergency. It also provides that any person aggrieved by the actions of the minister herein may appeal to the High Court and obtain compensation the refrom.
So the draft amendment bill does not mention anything about section 88, i.e. it is not being amended.
THE QUESTION WE NEED TO ASK IS DO WE WANT THE CURRENT SECTION 88 IN THE CURRENT COMMUNICATIONS ACT INCLUDED IN THE COMMUNICAITONS AMMENDED BILL? IF SO, SHOULD SECTION 88 BE DELETED OR CHANGED?
Of course the debate as to whether it should be deleted is ongoing, and the media are no exemption. But this is a saving provision of any communication regulation legislation to allow Government to take steps to deal effectively with the emergency or alternatively stop such networks being used incase of an insurgency in a country etc. (No doubt of course the debate rages on because history has evidenced the tendencies/choices made by African governments)
What is evident is that there is a notion that the current communications amendment bill includes section 88, which currently is in the communications Act NOT THE CURRENT COMMUNICATIONS AMMENDMENT BILL.
I agree with a live television broadcast if only to explain what it is and what it is not AND probably allow the debate to really take place country wide as it should have prior to it going to parliament.
PS: (I hope its aired on NTV OR KTN for those of us not in the country and can only access it via DSTV NTV OR KTN).
Best regards,
Dr. Monica Kerretts-Makau> This message was sent to: mkmakau@yahoo.co.uk> Dr Ndemo,
>
> Thanks for posting excerpts of the bill online (sections 46 and 88). We should
> actually have the FULL version of the bill (as presented to parliament)
> available online, although this would be accessible to the privileged with
> Internet access how about the masses? What happened to "our right to know"?
>
> I've carefully read through these sections of the bill and have some comments:
>
> 1. Apart from the gender Insensitivity of this clause "46Q b) that person
> provides broadcasting services in an area for which HE is not licensed to
> broadcast;", I've some substantive comments here below:
>
> 2. Section "46K The Minister may, in consultation with the Commission, make
> regulations generally with respect to all broadcasting services and without
> prejudice to the generality of the foregoing, with respect to- (c) mandating
> the carriage of content, in keeping with public interest obligations, across
> licensed broadcasting services; (d) prescribing anything that may be
> prescribed under this Part.
>
> Comment: I worry about the unspecified powers to prescribe content and
> "anything that may be prescribed" by the Minister – given our past, what are
> the implications?. who makes regulation? Minister or Regulator?
>
> 3. section "46H (1) The Commission shall have the power to set standards for
> the manner, time, and type of programmes to be broadcast by licensees under
> this Act."
>
> Comment – might this limit creativity and public opinion type programming that
> allows free speech?
>
> I've concerns about this section below:
>
> 4. Section "88.(1) On the declaration of any public emergency or in the
> interest of public safety and tranquility, the Minister for the time being
> responsible for Internal Security may, by order in writing, direct any officer
> duly authorized in that behalf, to take temporary possession of any
> telecommunication apparatus or any radio communication station or apparatus
> within Kenya, and –
> (b) in the case of telecommunication, that any communication within Kenya from
> any person or class of persons relating to any particular subject shall be
> intercepted and disclosed to such person as may be specified in the direction;
> (c) in the case of postal services, that any postal article or class or
> description or postal article in the course of transmission by post within
> Kenya shall be intercepted or detained or shall be delivered to any officer
> mentioned in the order or shall be disposed of in such manner as the Minister
> may direct."
>
> Comment: what constitutes "interest of public safety and tranquillity" – this
> is subject to abuse and personal discretion. It worries me that free speech
> could be limited and privacy preached on any subject – e.g. complaining about
> high fuel costs, food crisis, impunity etc etc. I do not know about you, but
> the last ban on live coverage created a sense of personal insecurity,
> isolation and denied persons their "right to know" and the subsequent threats
> of prosecution did not make things any better. What are the chances of abuse
> in this clause?
>
> Lets remember that these laws will not only serve today but future generations
> with different leaders.
>
> Edith
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