Planned amendments bode ill for Communications Authority
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. read on ... http://www.nation.co.ke/oped/blogs/dot9/walubengo/-/2274560/2921856/-/xolkx9... There is a proposed bill, the Miscellaneous Amendment Bill 164 of 2015 <http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2015/StatuteLaw__MiscellaneousAmendmens_Bill_164of2015.pdf> 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 <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
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 LinkedIn: http//ke.linkedin.com/in/alihkassim Blog: www.alyhussein.com
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.
read on ... http://www.nation.co.ke/oped/blogs/dot9/walubengo/-/2274560/2921856/-/xolkx9... <http://www.nation.co.ke/oped/blogs/dot9/walubengo/-/2274560/2921856/-/xolkx9z/-/index.html>
There is a proposed bill, the Miscellaneous Amendment Bill 164 of 2015 <http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2015/StatuteLaw__MiscellaneousAmendmens_Bill_164of2015.pdf> 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 <mailto: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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Ali, Colleagues, This is purely a leadership issue Ali, fortunately there is a time and season for everything. The current stewards of the sector will be remembered for their deeds or misdeeds. The same laws will be amended some day by another parliament that is full of wisdom not numbers. Regards On 10/21/15, Ali Hussein via kictanet <kictanet@lists.kictanet.or.ke> wrote:
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 LinkedIn: http//ke.linkedin.com/in/alihkassim Blog: www.alyhussein.com
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.
read on ... http://www.nation.co.ke/oped/blogs/dot9/walubengo/-/2274560/2921856/-/xolkx9... <http://www.nation.co.ke/oped/blogs/dot9/walubengo/-/2274560/2921856/-/xolkx9z/-/index.html>
There is a proposed bill, the Miscellaneous Amendment Bill 164 of 2015 <http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2015/StatuteLaw__MiscellaneousAmendmens_Bill_164of2015.pdf> 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 <mailto: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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KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications.
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@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 & LeadershipRegulator - 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: @AliHKassimSkype: Abu-JomoLinkedIn: http//ke.linkedin.com/in/alihkassim Blog: www.alyhussein.com 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. read on ... http://www.nation.co.ke/oped/blogs/dot9/walubengo/-/2274560/2921856/-/xolkx9... 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 marketundertaking 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 CAMost 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 _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/info%40alyhussein.com The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications. _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/jwalu%40yahoo.com The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications.
Walu,Listers As a student of Telecommunications Law and havingread the 1998 Act gazetted on 9th November,1998 and also the 2009 Amendment Actgazetted on 2nd January,2009 and further having read the Amendment Act(No.41Aof 2013) let me share some views: 1 Deletion of s.2 on definition of “dominanttelecommunications service provider” and making reference to Competition Actsimply aligns the two legislations and is a positive step and is in line withthe good international practice. You may perhaps recall that this clause appearedin 2009 in the absence of separate competition law. 2. The amendments of Sections s.5B(5) upto s.83Vare quite standard in Telecommunications Law and you will find it in sections27(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 aconsequence of deletion under s2 above. So the amendments in my view are really not asbad as they may appear. Regarding independence, you may recall that thedefinition in telecommunications sector is derived from international law, inparticular WTO(GATS-General Agreement on Telecommunications Services) and Iquote “ The WTO, GATS Reference Paperdefines “Independent Regulator” as ‘separatefrom, and not accountable to, any supplier of basic telecommunicationsservices. The decision of and the procedures used by regulators shall beimpartial with respect to all market participants’. EU directive 97/51 requires theestablishment of national regulatory agencies and puts the condition thatthese: ‘shall be distinct from and functionally independent of allorganizations providing telecommunications networks, equipments and services’. You may also notice that the drafters of the Kenya Constitutiondeclined to list the then CCK as one of the independent commissions whichnecessitated 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 & LeadershipRegulator - 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: @AliHKassimSkype: Abu-JomoLinkedIn: http//ke.linkedin.com/in/alihkassim Blog: www.alyhussein.com 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. read on ... http://www.nation.co.ke/oped/blogs/dot9/walubengo/-/2274560/2921856/-/xolkx9... 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 marketundertaking 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 CAMost 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 _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/info%40alyhussein.com The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications. _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/jwalu%40yahoo.com The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications. _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/ngethe.kariuki2007%40y... The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications.
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 havingread the 1998 Act gazetted on 9th November,1998 and also the 2009 Amendment Actgazetted on 2nd January,2009 and further having read the Amendment Act(No.41Aof 2013) let me share some views: 1 Deletion of s.2 on definition of “dominanttelecommunications service provider” and making reference to Competition Actsimply aligns the two legislations and is a positive step and is in line withthe good international practice. You may perhaps recall that this clause appearedin 2009 in the absence of separate competition law. 2. The amendments of Sections s.5B(5) upto s.83Vare quite standard in Telecommunications Law and you will find it in sections27(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 aconsequence of deletion under s2 above. So the amendments in my view are really not asbad as they may appear. Regarding independence, you may recall that thedefinition in telecommunications sector is derived from international law, inparticular WTO(GATS-General Agreement on Telecommunications Services) and Iquote “ The WTO, GATS Reference Paperdefines “Independent Regulator” as ‘separatefrom, and not accountable to, any supplier of basic telecommunicationsservices. The decision of and the procedures used by regulators shall beimpartial with respect to all market participants’. EU directive 97/51 requires theestablishment of national regulatory agencies and puts the condition thatthese: ‘shall be distinct from and functionally independent of allorganizations providing telecommunications networks, equipments and services’. You may also notice that the drafters of the Kenya Constitutiondeclined to list the then CCK as one of the independent commissions whichnecessitated 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 & LeadershipRegulator - 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: @AliHKassimSkype: Abu-JomoLinkedIn: http//ke.linkedin.com/in/alihkassim Blog: www.alyhussein.com 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. read on ... http://www.nation.co.ke/oped/blogs/dot9/walubengo/-/2274560/2921856/-/xolkx9... 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 marketundertaking 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 CAMost 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 _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/info%40alyhussein.com The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications. _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/jwalu%40yahoo.com The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications. _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/ngethe.kariuki2007%40y... The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications.
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 LinkedIn: http//ke.linkedin.com/in/alihkassim Blog: www.alyhussein.com
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.
read on ... http://www.nation.co.ke/oped/blogs/dot9/walubengo/-/2274560/2921856/-/xolkx9...
There is a proposed bill, the Miscellaneous Amendment Bill 164 of 2015 <http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2015/StatuteLaw__MiscellaneousAmendmens_Bill_164of2015.pdf> 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 <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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The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development.
KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications.
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The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development.
KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications.
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The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development.
KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications.
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The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development.
KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications.
@Kamotho, thnx for your input. let me just quote you on one aspect I agree with you: >>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. Dont you think the current proposals actually put too much, actually all regulatory powers to the Minister - only requiring him/her to consult the regulator. Incidentally, how would you measure 'consultation'? Remember 'Consultation' is at the center of the battle between the Ministry of Lands and the National Lands Commission, do we want to formalize and repeat such battles in our sector? Nevertheless, I have no problem with this arrangement IF Kenyans and more so the National Communication Secretariate (NCS) - the body mandated to advise the minister - think it is the best way forward. Incidentally, they should speak out and elaborate on this arrangement for slow learners like me. Not sure who the current Secretary of NCS is but I think its either Eng Vincent Adul or Eng. Obam? both of whom are on this list. Additionally, they must explain what to do with the current employees at the Communication Authority whose specialized recruitment am sure was based on the understanding they would MAKING & enforcing regulations. walu. From: Kamotho Njenga <kamothonjenga@gmail.com> To: Walubengo J <jwalu@yahoo.com>; KICTAnet ICT Policy Discussions <kictanet@lists.kictanet.or.ke> Sent: Thursday, October 22, 2015 9:15 PM Subject: Re: [kictanet] Planned amendments bode ill for Communications Authority 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 havingread the 1998 Act gazetted on 9th November,1998 and also the 2009 Amendment Actgazetted on 2nd January,2009 and further having read the Amendment Act(No.41Aof 2013) let me share some views: 1 Deletion of s.2 on definition of “dominanttelecommunications service provider” and making reference to Competition Actsimply aligns the two legislations and is a positive step and is in line withthe good international practice. You may perhaps recall that this clause appearedin 2009 in the absence of separate competition law. 2. The amendments of Sections s.5B(5) upto s.83Vare quite standard in Telecommunications Law and you will find it in sections27(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 aconsequence of deletion under s2 above. So the amendments in my view are really not asbad as they may appear. Regarding independence, you may recall that thedefinition in telecommunications sector is derived from international law, inparticular WTO(GATS-General Agreement on Telecommunications Services) and Iquote “ The WTO, GATS Reference Paperdefines “Independent Regulator” as ‘separatefrom, and not accountable to, any supplier of basic telecommunicationsservices. The decision of and the procedures used by regulators shall beimpartial with respect to all market participants’. EU directive 97/51 requires theestablishment of national regulatory agencies and puts the condition thatthese: ‘shall be distinct from and functionally independent of allorganizations providing telecommunications networks, equipments and services’. You may also notice that the drafters of the Kenya Constitutiondeclined to list the then CCK as one of the independent commissions whichnecessitated 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 & LeadershipRegulator - 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: @AliHKassimSkype: Abu-JomoLinkedIn: http//ke.linkedin.com/in/alihkassim Blog: www.alyhussein.com 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. read on ... http://www.nation.co.ke/oped/blogs/dot9/walubengo/-/2274560/2921856/-/xolkx9... 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 marketundertaking 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 CAMost 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 _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/info%40alyhussein.com The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications. _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/jwalu%40yahoo.com The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications. _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/ngethe.kariuki2007%40y... The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications. _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/kamothonjenga%40gmail.... The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications.
Walu, Please correct. Your post reads: 'Not sure who the current Secretary of NCS is but I think its either Eng Vincent Adul or Eng. Obam? both of whom are on this list.' No. The current communications secretary at NCS is Mr. Charles Owino Ngesa. He is most likely a member of the list.James Kulubi On Friday, 23 October 2015, 13:34, Walubengo J via kictanet <kictanet@lists.kictanet.or.ke> wrote: @Kamotho, thnx for your input. let me just quote you on one aspect I agree with you: >>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. Dont you think the current proposals actually put too much, actually all regulatory powers to the Minister - only requiring him/her to consult the regulator. Incidentally, how would you measure 'consultation'? Remember 'Consultation' is at the center of the battle between the Ministry of Lands and the National Lands Commission, do we want to formalize and repeat such battles in our sector? Nevertheless, I have no problem with this arrangement IF Kenyans and more so the National Communication Secretariate (NCS) - the body mandated to advise the minister - think it is the best way forward. Incidentally, they should speak out and elaborate on this arrangement for slow learners like me. Not sure who the current Secretary of NCS is but I think its either Eng Vincent Adul or Eng. Obam? both of whom are on this list. Additionally, they must explain what to do with the current employees at the Communication Authority whose specialized recruitment am sure was based on the understanding they would MAKING & enforcing regulations. walu. From: Kamotho Njenga <kamothonjenga@gmail.com> To: Walubengo J <jwalu@yahoo.com>; KICTAnet ICT Policy Discussions <kictanet@lists.kictanet.or.ke> Sent: Thursday, October 22, 2015 9:15 PM Subject: Re: [kictanet] Planned amendments bode ill for Communications Authority 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 havingread the 1998 Act gazetted on 9th November,1998 and also the 2009 Amendment Actgazetted on 2nd January,2009 and further having read the Amendment Act(No.41Aof 2013) let me share some views: 1 Deletion of s.2 on definition of “dominanttelecommunications service provider” and making reference to Competition Actsimply aligns the two legislations and is a positive step and is in line withthe good international practice. You may perhaps recall that this clause appearedin 2009 in the absence of separate competition law. 2. The amendments of Sections s.5B(5) upto s.83Vare quite standard in Telecommunications Law and you will find it in sections27(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 aconsequence of deletion under s2 above. So the amendments in my view are really not asbad as they may appear. Regarding independence, you may recall that thedefinition in telecommunications sector is derived from international law, inparticular WTO(GATS-General Agreement on Telecommunications Services) and Iquote “ The WTO, GATS Reference Paperdefines “Independent Regulator” as ‘separatefrom, and not accountable to, any supplier of basic telecommunicationsservices. The decision of and the procedures used by regulators shall beimpartial with respect to all market participants’. EU directive 97/51 requires theestablishment of national regulatory agencies and puts the condition thatthese: ‘shall be distinct from and functionally independent of allorganizations providing telecommunications networks, equipments and services’. You may also notice that the drafters of the Kenya Constitutiondeclined to list the then CCK as one of the independent commissions whichnecessitated 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 & LeadershipRegulator - 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: @AliHKassimSkype: Abu-JomoLinkedIn: http//ke.linkedin.com/in/alihkassim Blog: www.alyhussein.com 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. read on ... http://www.nation.co.ke/oped/blogs/dot9/walubengo/-/2274560/2921856/-/xolkx9... 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 marketundertaking 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 CAMost 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 _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/info%40alyhussein.com The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications. _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/jwalu%40yahoo.com The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications. _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/ngethe.kariuki2007%40y... The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications. _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/kamothonjenga%40gmail.... The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications. _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/jkulubi%40yahoo.co.uk The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications.
Thnx Prof for the correction. Am not quite sure I have met Mr. Charles Owino Ngesa in the real world. I have been running into Vincent, Obam and Kihanya within the ICT conferences + forums and since they knew their stuff, I assumed one them must have replaced you and Kariuki as the NCS boss :-) I have also checked within the list membership and it looks he is not on the KICTAnet list either (unless he registered under a pseudo name). If we dont hear from him, we may need to look for him physically in the office - the analog way :-) walu. From: James Kulubi <jkulubi@yahoo.co.uk> To: Walubengo J <jwalu@yahoo.com>; KICTAnet ICT Policy Discussions <kictanet@lists.kictanet.or.ke> Sent: Friday, October 23, 2015 3:11 PM Subject: Re: [kictanet] Planned amendments bode ill for Communications Authority Walu, Please correct. Your post reads: 'Not sure who the current Secretary of NCS is but I think its either Eng Vincent Adul or Eng. Obam? both of whom are on this list.' No. The current communications secretary at NCS is Mr. Charles Owino Ngesa. He is most likely a member of the list.James Kulubi On Friday, 23 October 2015, 13:34, Walubengo J via kictanet <kictanet@lists.kictanet.or.ke> wrote: @Kamotho, thnx for your input. let me just quote you on one aspect I agree with you: >>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. Dont you think the current proposals actually put too much, actually all regulatory powers to the Minister - only requiring him/her to consult the regulator. Incidentally, how would you measure 'consultation'? Remember 'Consultation' is at the center of the battle between the Ministry of Lands and the National Lands Commission, do we want to formalize and repeat such battles in our sector? Nevertheless, I have no problem with this arrangement IF Kenyans and more so the National Communication Secretariate (NCS) - the body mandated to advise the minister - think it is the best way forward. Incidentally, they should speak out and elaborate on this arrangement for slow learners like me. Not sure who the current Secretary of NCS is but I think its either Eng Vincent Adul or Eng. Obam? both of whom are on this list. Additionally, they must explain what to do with the current employees at the Communication Authority whose specialized recruitment am sure was based on the understanding they would MAKING & enforcing regulations. walu. From: Kamotho Njenga <kamothonjenga@gmail.com> To: Walubengo J <jwalu@yahoo.com>; KICTAnet ICT Policy Discussions <kictanet@lists.kictanet.or.ke> Sent: Thursday, October 22, 2015 9:15 PM Subject: Re: [kictanet] Planned amendments bode ill for Communications Authority 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 havingread the 1998 Act gazetted on 9th November,1998 and also the 2009 Amendment Actgazetted on 2nd January,2009 and further having read the Amendment Act(No.41Aof 2013) let me share some views: 1 Deletion of s.2 on definition of “dominanttelecommunications service provider” and making reference to Competition Actsimply aligns the two legislations and is a positive step and is in line withthe good international practice. You may perhaps recall that this clause appearedin 2009 in the absence of separate competition law. 2. The amendments of Sections s.5B(5) upto s.83Vare quite standard in Telecommunications Law and you will find it in sections27(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 aconsequence of deletion under s2 above. So the amendments in my view are really not asbad as they may appear. Regarding independence, you may recall that thedefinition in telecommunications sector is derived from international law, inparticular WTO(GATS-General Agreement on Telecommunications Services) and Iquote “ The WTO, GATS Reference Paperdefines “Independent Regulator” as ‘separatefrom, and not accountable to, any supplier of basic telecommunicationsservices. The decision of and the procedures used by regulators shall beimpartial with respect to all market participants’. EU directive 97/51 requires theestablishment of national regulatory agencies and puts the condition thatthese: ‘shall be distinct from and functionally independent of allorganizations providing telecommunications networks, equipments and services’. You may also notice that the drafters of the Kenya Constitutiondeclined to list the then CCK as one of the independent commissions whichnecessitated 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 & LeadershipRegulator - 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: @AliHKassimSkype: Abu-JomoLinkedIn: http//ke.linkedin.com/in/alihkassim Blog: www.alyhussein.com 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. read on ... http://www.nation.co.ke/oped/blogs/dot9/walubengo/-/2274560/2921856/-/xolkx9... 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 marketundertaking 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 CAMost 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 _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/info%40alyhussein.com The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications. _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/jwalu%40yahoo.com The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications. _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/ngethe.kariuki2007%40y... The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications. _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/kamothonjenga%40gmail.... The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications. _______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/jkulubi%40yahoo.co.uk The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development. KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications.
I am in agreement with you Walu, I think we should be objective. We had a very long debate on this list on what constitutes independence. I think as an industry we have to learn to sit on the table together and work out issues that are in the best interest of the industry as opposed to resorting to means that can force us to include the courts in our consultations. I hope our colleagues can open our eyes further as to why they are intent on this decision so that we are on the same page. Regards On 10/23/15, Walubengo J via kictanet <kictanet@lists.kictanet.or.ke> wrote:
Thnx Prof for the correction. Am not quite sure I have met Mr. Charles Owino Ngesa in the real world. I have been running into Vincent, Obam and Kihanya within the ICT conferences + forums and since they knew their stuff, I assumed one them must have replaced you and Kariuki as the NCS boss :-) I have also checked within the list membership and it looks he is not on the KICTAnet list either (unless he registered under a pseudo name). If we dont hear from him, we may need to look for him physically in the office - the analog way :-) walu. From: James Kulubi <jkulubi@yahoo.co.uk> To: Walubengo J <jwalu@yahoo.com>; KICTAnet ICT Policy Discussions <kictanet@lists.kictanet.or.ke> Sent: Friday, October 23, 2015 3:11 PM Subject: Re: [kictanet] Planned amendments bode ill for Communications Authority
Walu, Please correct. Your post reads: 'Not sure who the current Secretary of NCS is but I think its either Eng Vincent Adul or Eng. Obam? both of whom are on this list.' No. The current communications secretary at NCS is Mr. Charles Owino Ngesa. He is most likely a member of the list.James Kulubi
On Friday, 23 October 2015, 13:34, Walubengo J via kictanet <kictanet@lists.kictanet.or.ke> wrote:
@Kamotho, thnx for your input. let me just quote you on one aspect I agree with you: >>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. Dont you think the current proposals actually put too much, actually all regulatory powers to the Minister - only requiring him/her to consult the regulator. Incidentally, how would you measure 'consultation'? Remember 'Consultation' is at the center of the battle between the Ministry of Lands and the National Lands Commission, do we want to formalize and repeat such battles in our sector? Nevertheless, I have no problem with this arrangement IF Kenyans and more so the National Communication Secretariate (NCS) - the body mandated to advise the minister - think it is the best way forward. Incidentally, they should speak out and elaborate on this arrangement for slow learners like me. Not sure who the current Secretary of NCS is but I think its either Eng Vincent Adul or Eng. Obam? both of whom are on this list. Additionally, they must explain what to do with the current employees at the Communication Authority whose specialized recruitment am sure was based on the understanding they would MAKING & enforcing regulations. walu.
From: Kamotho Njenga <kamothonjenga@gmail.com> To: Walubengo J <jwalu@yahoo.com>; KICTAnet ICT Policy Discussions <kictanet@lists.kictanet.or.ke> Sent: Thursday, October 22, 2015 9:15 PM Subject: Re: [kictanet] Planned amendments bode ill for Communications Authority
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 havingread the 1998 Act gazetted on 9th November,1998 and also the 2009 Amendment Actgazetted on 2nd January,2009 and further having read the Amendment Act(No.41Aof 2013) let me share some views: 1 Deletion of s.2 on definition of “dominanttelecommunications service provider” and making reference to Competition Actsimply aligns the two legislations and is a positive step and is in line withthe good international practice. You may perhaps recall that this clause appearedin 2009 in the absence of separate competition law. 2. The amendments of Sections s.5B(5) upto s.83Vare quite standard in Telecommunications Law and you will find it in sections27(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 aconsequence of deletion under s2 above. So the amendments in my view are really not asbad as they may appear. Regarding independence, you may recall that thedefinition in telecommunications sector is derived from international law, inparticular WTO(GATS-General Agreement on Telecommunications Services) and Iquote “ The WTO, GATS Reference Paperdefines “Independent Regulator” as ‘separatefrom, and not accountable to, any supplier of basic telecommunicationsservices. The decision of and the procedures used by regulators shall beimpartial with respect to all market participants’. EU directive 97/51 requires theestablishment of national regulatory agencies and puts the condition thatthese: ‘shall be distinct from and functionally independent of allorganizations providing telecommunications networks, equipments and services’. You may also notice that the drafters of the Kenya Constitutiondeclined to list the then CCK as one of the independent commissions whichnecessitated 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 & LeadershipRegulator - 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: @AliHKassimSkype: Abu-JomoLinkedIn: http//ke.linkedin.com/in/alihkassim Blog: www.alyhussein.com
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. read on ... http://www.nation.co.ke/oped/blogs/dot9/walubengo/-/2274560/2921856/-/xolkx9... 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 marketundertaking 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 CAMost 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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KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications.
-- Barrack O. Otieno +254721325277 +254-20-2498789 Skype: barrack.otieno http://www.otienobarrack.me.ke/
Dear all,
From the face of it, seems like independent commissions should have functional and financial independence from the executive. Also, any regulations made under any law are subject to scrutiny by Parliament (effect of Statutory Instruments Act) I however confess that I am yet to read the proposed amendments, so I will comment after reading. On 26 Oct 2015 4:34 pm, "Barrack Otieno via kictanet" < kictanet@lists.kictanet.or.ke> wrote:
I am in agreement with you Walu,
I think we should be objective. We had a very long debate on this list on what constitutes independence. I think as an industry we have to learn to sit on the table together and work out issues that are in the best interest of the industry as opposed to resorting to means that can force us to include the courts in our consultations. I hope our colleagues can open our eyes further as to why they are intent on this decision so that we are on the same page.
Regards
Thnx Prof for the correction. Am not quite sure I have met Mr. Charles Owino Ngesa in the real world. I have been running into Vincent, Obam and Kihanya within the ICT conferences + forums and since they knew their stuff, I assumed one them must have replaced you and Kariuki as the NCS boss :-) I have also checked within the list membership and it looks he is not on
KICTAnet list either (unless he registered under a pseudo name). If we dont hear from him, we may need to look for him physically in the office
the analog way :-) walu. From: James Kulubi <jkulubi@yahoo.co.uk> To: Walubengo J <jwalu@yahoo.com>; KICTAnet ICT Policy Discussions <kictanet@lists.kictanet.or.ke> Sent: Friday, October 23, 2015 3:11 PM Subject: Re: [kictanet] Planned amendments bode ill for Communications Authority
Walu, Please correct. Your post reads: 'Not sure who the current Secretary of NCS is but I think its either Eng Vincent Adul or Eng. Obam? both of whom are on this list.' No. The current communications secretary at NCS is Mr. Charles Owino Ngesa. He is most likely a member of the list.James Kulubi
On Friday, 23 October 2015, 13:34, Walubengo J via kictanet <kictanet@lists.kictanet.or.ke> wrote:
@Kamotho, thnx for your input. let me just quote you on one aspect I agree with you: >>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. Dont you think the current proposals actually put too much, actually all regulatory powers to the Minister - only requiring him/her to consult the regulator. Incidentally, how would you measure 'consultation'? Remember 'Consultation' is at the center of the battle between the Ministry of Lands and the National Lands Commission, do we want to formalize and repeat such battles in our sector? Nevertheless, I have no problem with this arrangement IF Kenyans and more so the National Communication Secretariate (NCS) - the body mandated to advise the minister - think it is the best way forward. Incidentally, they should speak out and elaborate on this arrangement for slow learners like me. Not sure who the current Secretary of NCS is but I think its either Eng Vincent Adul or Eng. Obam? both of whom are on this list. Additionally, they must explain what to do with the current employees at
Communication Authority whose specialized recruitment am sure was based on the understanding they would MAKING & enforcing regulations. walu.
From: Kamotho Njenga <kamothonjenga@gmail.com> To: Walubengo J <jwalu@yahoo.com>; KICTAnet ICT Policy Discussions <kictanet@lists.kictanet.or.ke> Sent: Thursday, October 22, 2015 9:15 PM Subject: Re: [kictanet] Planned amendments bode ill for Communications Authority
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
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
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
CS in consultation with the CA- There is nothing absolutely wrong with
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
and legislation, the regulators restricted to making the rules as per
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 havingread the 1998 Act gazetted on 9th November,1998 and also the 2009 Amendment Actgazetted on 2nd January,2009 and further having read the Amendment Act(No.41Aof 2013) let me share some views: 1 Deletion of s.2 on definition of “dominanttelecommunications service provider” and making reference to Competition Actsimply aligns the two legislations and is a positive step and is in line withthe good international practice. You may perhaps recall
this clause appearedin 2009 in the absence of separate competition law.
The amendments of Sections s.5B(5) upto s.83Vare quite standard in Telecommunications Law and you will find it in
etc. of the 1998 Act.They are also retained in the 2009 Amendment. 3. Deletions of s. 84W(4) and s.84W(5) are aconsequence of deletion under s2 above. So the amendments in my view are really not asbad as they may appear. Regarding independence, you may recall that thedefinition in telecommunications sector is derived from international law, inparticular WTO(GATS-General Agreement on Telecommunications Services) and Iquote “ The WTO, GATS Reference Paperdefines “Independent Regulator” as ‘separatefrom, and not accountable to, any supplier of basic telecommunicationsservices. The decision of and the procedures used by regulators shall beimpartial with respect to all market participants’. EU directive 97/51 requires theestablishment of national regulatory agencies and puts the condition thatthese: ‘shall be distinct from and functionally independent of allorganizations providing telecommunications networks, equipments and services’. You may also notice that the drafters of the Kenya Constitutiondeclined to list the then CCK as one of the independent commissions whichnecessitated change of name.Walu if there are some
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
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 & LeadershipRegulator - 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: @AliHKassimSkype: Abu-JomoLinkedIn: http//ke.linkedin.com/in/alihkassim Blog: www.alyhussein.com
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
read on ... http://www.nation.co.ke/oped/blogs/dot9/walubengo/-/2274560/2921856/-/xolkx9... 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 marketundertaking 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
the Communications Authority. The second is to enhance the Cabinet Secretary’s role in communication regulatory matters.For those with a
bit of communications history, it is easy to see the deliberate shift towards the old days when communications regulation was strictly under
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
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
decisions, however well-intentioned were deemed not to have been undertaken by an independent regulator as envisioned in the new constitution.Why,
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 CAMost 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
On 10/23/15, Walubengo J via kictanet <kictanet@lists.kictanet.or.ke> wrote: the - the pronounced the the the policy those that 2. sections27(1),sections38(1) details the pass. than little the performance of their then, 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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KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications.
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participants (8)
-
Ali Hussein -
Barrack Otieno -
Grace Mutung'u (Bomu) -
James Kulubi -
John Kariuki -
Kamotho Njenga -
Mwendwa Kivuva -
Walubengo J