* A LEGAL OPINION ON THE LEGISLATIVE PROBITY AND PROCEDURE FOR THE KENYA COMMUNICATIONS (AMENDMENT) BILL 2008.* *For Kictanet through Mediacorp* *By Haron M Ndubi, Advocate* The Kenya Communications (Amendment) Bill 2008 was introduced by the government through the minister for Information to parliament. The object of the new amendment is found primarily in both the preamble and the memorandum of Objects and Reason explaining the Bill. The preamble is herewith reproduced: * "….An ACT of Parliament to amend the Kenya Communications Act, 1998, to make minor amendments to the statute law, and for connected purposes"* The long title of the 1998 Act provides thus: *"….to facilitate the development of the information and communications sector (including broadcasting, multimedia, telecommunications and postal services) and electronic commerce*" Generally speaking and found in the memorandum of objects and reasons, the Bill proposes to and indeed does affect three major sectors. 1. Communications 2. E Commerce 3. Media and Broadcasting 4. Criminal and evidence law 5. (Possibly inadvertently, the Constitution of Kenya). The objects proposing to bring developments in technology within the law so as to provide for investments in technology and to acknowledge and deal with cybercrime can hardly be faulted. Actually this has been long in coming. However, one needs to look into the cause(s) of the public and loud disquiet that has characterized debate leading to the petitions to the President to refuse to sign the Bill and return it to parliament as provided for under section 46 of the Constitution. Simply put, that section of the constitution provides the procedure for making law. Once a Bill is introduced, it goes to the House committee responsible for the matters therein for consideration. At this time the Bill is not in the house yet. The committee may make such changes as it may deem fit then approve it for the house. Upon, the tabling of the Bill, parliament debates it and decides one way or the other. If the Bill is rejected in toto. Then it may not be reintroduced onto the floor of the house until the expiry of six months. If the House amends it then it may pass with the amendments. Then it may go through the various readings until it becomes a proposed law awaiting the signature of assent from the President. (It must be noted though, that the House recently passed a raft of amendments to the Standing orders. One such is the time lapse before re introduction of a rejected bill into the house. The new rules become operational in March 2009. The new procedures allow faster, if not immediate reintroduction of a rejected Bill.) Once a Bill has been passed, on the other hand, it will be presented to the President by the Speaker for his Assent. In event the President refuses to assent to the bill, he is expected to return the bill to the Speaker, within fourteen days of such refusal. He has to accompany the refused bill with a memorandum or reasons for the refusal. Parliament is expected to; within twenty one days reconsider the Bill in consideration of the President's objections. If the House is convinced, they will make the proposed amendments and return the same to the president who SHALL then sign it into law. In event that the parliament rejects the president's objections, the bill will be returned to the president who may sign it. If he declined to sign it automatically becomes law within fourteen days of such presentation to the President. That the Kenya Communications (Amendment) Bill 2008 was proposed singularly to amend the 1998 Act is in no doubt. Therefore, the opportunity to amend the obnoxious section 88 of the 1998 Act indeed lay before the house. However, we are told that the proposal to amend section 88 of the 1998 Act was rejected at the committee stage. It was therefore not debated by the house. The question that then emerges is this; can the President take the bill back to ask that Parliament reconsiders that section 88 for repeal? My answer is YES. He can. In doing so, the president will be dealing with another function that the Attorney General would have performed. That of advising that the section 88 would be unconstitutional. He didn't in 1998, he hasn't now. If the President assents to the Bill he will do so having failed to promote the deletion of section 88 in the 1998 Act, yet he will have protected the gains relating to ICT rather than broadcasting and other media. If he refused to assent, then the question is how long will it be before it becomes law? If the Parliament stays in recess until March as envisaged, then the president may withhold his decision on the Bill until parliament resumes. This is because time will be expected to run as soon as he advises the speaker of his rejection. Should he assent, it will not be said to automatically come into force immediately. The Bill contains provision for phased implementation of the law. The minister may appoint *effective* dates either for the whole law or diverse dates for various sections. This means that the concern on time on the part of Kictanet is not resolved by the mere passing of the Bill. But there are other reasons for which the media, some political leaders, civil society and others have sought the President's refusal to assent to the law. Broadly stated the issues are three fold. 1. The power on the minister to confiscate equipment 2. The power of the government to control and regulate content 3. The lack of independence of the Regulatory body. On 1 above we have the foregoing text has a response. Without going into the merits of the other two concerns, it needs to be acknowledged that they are legitimate questions but have the potential of hamstringing one sector in favour of another. On the issue of 2 above for instance, the regulator needs to be able to help the media and the public classify material and allow it to be available for the respective client without undermining the public good. Therefore, an argument for a free hand will be inimical to public good. That said, and related to 3 a regulatory authority must be legitimate and credible. Therefore representation and greater presence of the diverse sectors responsible is a valid and legitimate concern. The initial error may have occurred when the ICT investment and advancement issues were mixed up with telecommunications and broadcasting. But that is debatable by the experts in the respective areas. In conclusion,, I would opine for two options: A). The President should be requested to expedite the decision on the Bill either way B)The President should be requested to recall parliament earlier than March so as to deal with the outstanding business. This way, if he assents to the Bill, those members of parliament opposed to the Bill could use their privileged position to move amendment motions. c)The affected sectors opposed to the existence of section 88 of the 1998 Act can move to the constitutional court and seek the judicial declaration that the section is unconstitutional thus it be repealed. -- Bildad Kagai MD - MediaCorp Limited Nairobi Stock Exchange Authorised Information Vendor Suite B2, Tetu Court, State House Avenue P. O. Box 20311 - 00200 Nairobi, Kenya Tel. 254 20 272 8332 Fax. Rendered Obsolete S - 1°17'13.8" E - 36°48'22.7" www.mediacorp.co.ke ---