Ali and all, I understand that these are regulations (subsidiary legislation) meaning that they are just meant to make implementation of the main law (KICA) smoother. According to the provisions of the Statutory Instruments Act, the same will still go to Bunge for scrutiny. That said, it is more useful to have wide consultations before the Regulations are finalised. I admit that I did not have enough time to go through all the regulations after the message was posted here. I join in asking the Regulator to consider the following so as to make the process more meaningful: a) Have a stakeholder's forum (even online) to take stakeholders through the rationale for the Regulations. I believe this forum has many people who are interested in critiquing the Regulations from an informed point of view. b) Give stakeholders a bit more time to consider and give input to the Regulations, say a least two -three weeks in January c) Publish the Regulations with incorporated amendments (if any) before taking them to Parliament for scrutiny Regards, 2015-12-30 16:01 GMT+03:00 Kipkemoi Kiptum via kictanet < kictanet@lists.kictanet.or.ke>:

President Ulysses S. Grant (General(Retired)) First Inaugural Address Washington, DC Thursday, March 4, 1869

Citizens of the United States:

Your suffrages having elected me to the office of President of the United States, I have, in conformity to the Constitution of our country, taken the oath of office prescribed therein. I have taken this oath without mental reservation and with the determination to do to the best of my ability all that is required of me. ...

[snip - but not so we loose the message]

...

I shall on all subjects have a policy to recommend, but none to enforce against the will of the people. Laws are to govern all alike—those opposed as well as those who favor them. *I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution. *

*Kip*

*A Cruce Salus*

On Wed, Dec 30, 2015 at 2:54 PM, Waithaka Ngigi via kictanet < kictanet@lists.kictanet.or.ke> wrote:

...

Ali,

It's a trend that's currently happening across the board where the most extreme version of the laws becomes *default‎* and it's only watered down after protests and legal suits.

Very unfortunate.

Waithaka Ngigi

Alliance Technologies www.at.co.ke *From: *Ali Hussein *Sent: *Wednesday, December 30, 2015 2:08 PM *To: *KICTAnet ICT Policy Discussions *Cc: *Waithaka Ngigi *Subject: *Re: [kictanet] Cyber Bill

Waithaka

You raise critical issues. My sense is that before any law or amendment is drafted for 'public debate' (more on this in a minute) shouldn't the constitutional threshold first be met?

Shouldn't the drafters of these laws and amendments exhibit utmost good faith in relation to the constitution? There is a lot in these drafts that in my humble opinion just do not meet this threshold.

On the issue of public debate/comments I have hit fatigue levels for one simple reason.

*The lack of transparency in the very process of public comments.*

Is there someone on this list who can educate us on this process? My questions:-

1. What happens after the comments/debate period expires? 2. Are people's comments incorporated? 3. Do we receive any feedback regarding our comments?

Please educate us on this.

The WCIT12 issue is still fresh in some of our minds. The community was engaged vigorously by the previous regime headed by then Minister Poghisio and his PS, Dr. Ndemo. I was in the Kenya Delegation when Dr. Ndemo declined to sign the new treaty due to major issues of contention one of which was Net Neutrality.

Enter the new regime and we now hear the treaty was later signed by Kenya. No explanation given. No announcement. Zilch.

For the community to feel that their views are being taken into account there needs to be transparency on how these comments/debates at incorporated and decisions made even before they hit parliament for debate.

My two cents.

*Ali Hussein* *Principal* *Hussein & Associates* +254 0713 601113 / 0770906375

Twitter: @AliHKassim

Skype: abu-jomo

LinkedIn: http://ke.linkedin.com/in/alihkassim <http://ke.linkedin.com/in/alihkassim>

Blog: www.alyhussein.com

"Discovery consists in seeing what everyone else has seen and thinking what no one else has thought". ~ Albert Szent-Györgyi

Sent from my iPad

On 30 Dec 2015, at 10:49 AM, Waithaka Ngigi via kictanet < kictanet@lists.kictanet.or.ke> wrote:

Just wondering,

While at it, why not just get the Red Star OS from North Korea and make it the mandatory OS in Kenya‎?

It is the *constitutional* right of every Kenyan‎ Citizen to PRIVACY which can only be lifted through a very well detailed legal process.

No act of parliament should attempt mass-collection of private data from Kenyan citizens under the guise of fighting Cyber crimes.

Waithaka Ngigi

Alliance Technologies www.at.co.ke *From: *Josiah Mugambi via kictanet *Sent: *Wednesday, December 30, 2015 10:07 AM *To: *Ngigi Waithaka *Reply To: *KICTAnet ICT Policy Discussions *Cc: *Josiah Mugambi *Subject: *[kictanet] Cyber Bill

http://www.standardmedia.co.ke/mobile/article/2000186538/new-law-tightens-no...

Quite the uproar judging by the comments online.

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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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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.

-- Grace L.N. Mutung'u Nairobi Kenya Skype: gracebomu Twitter: @Bomu <http://www.diplointernetgovernance.org/profile/GraceMutungu>

Mwendwa, Thanks for pointing us in the right direction... As regards the Rights to Privacy, and as expounded on in the same ruling, surveillance can only be done through a judicial process and specifically *Mass Surveillance* is illegal and violates the constitution. ‎ ‎Collecting browsing data on every citizens Internet history is a good example of mass scale infringement of Right to Privacy. I have copied hereunder the relevant part of the ruling... "...there are sufficient safeguards to ensure that the limitation of the right to privacy is not exercised, as the petitioners and Article 19 fear, arbitrarily and on a mass scale. Under the Prevention of Terrorism Act which had, prior to the enactment of SLAA and the introduction of Section 36A already contained limitations of the right to privacy, there are, we believe, safeguards to ensure that the process is undertaken under judicial supervision. It is, we believe, useful to set out the provisions of the Prevention of Terrorism Act as they are currently. Section 35, which limits various rights, provides as follows with regard to the right to privacy:..." The proposal law as per the proposed  Cyber Crime bill is yet another attempt, IMO, to sneak in unregulated mass surveillance. Waithaka Ngigi Alliance Technologies www.at.co.ke    Original Message   From: Mwendwa Kivuva via kictanet Sent: Thursday, December 31, 2015 4:44 PM To: Ngigi Waithaka Reply To: KICTAnet ICT Policy Discussions Cc: Mwendwa Kivuva Subject: Re: [kictanet] Cyber Bill Allow me to go completely legal: PUBLIC PARTICIPATION: --------------------------------------- Courts in Kenya have addressed the question of public participation and the circumstances in which it will be deemed to be sufficient. In the case of Robert N. Gakuru and Others vs The Governor Kiambu County and 3 Others, Petition No 532 of 2013, the High Court was faced with a challenge to County legislation on the basis that there had been insufficient public participation. The Court in its decision stated that: "In my view public participation ought to be real and not illusory and ought not to be treated as a mere formality for the purposes of fulfilment of the Constitutional dictates. It is my view that it behoves the County Assemblies in enacting legislation to ensure that the spirit of public participation is attained both quantitatively and qualitatively. It is not just enough in my view to simply “tweet” messages as it were and leave it to those who care to scavenge for it.” The Court was emphatic on the obligation of County Assembly with regard to public participation: ”The County Assemblies ought to do whatever is reasonable to ensure that as many of their constituents in particular and the Kenyans in general are aware of the intention to pass legislation and where the legislation in question involves such important aspect as payment of taxes and levies, the duty is even more onerous. I hold that it is the duty of the County Assembly in such circumstances to exhort its constituents to participate in the process of the enactment of such legislation by making use of as many fora as possible such as churches, mosques, temples, public barazas, national and vernacular radio broadcasting stations and other avenues where the public are known to converge to disseminate information with respect to the intended action.” In Nairobi Metropolitan PSV Saccos Union Limited & 25 Others vs County of Nairobi Government and 3 others, Petition No 486 of 2013 the High Court stated: “... it does not matter how the public participation was effected. What is needed, in my view, is that the public was accorded some reasonable level of participation and I must therefore agree with the sentiments of Sachs J in Minister of Health v New Clicks South Africa (PTY) Ltd (supra) where he expressed himself as follows; “The forms of facilitating an appropriate degree of participation in the law-making process are indeed capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issue and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case.” RIGHTS TO PRIVACY, AND SURVEILLANCE: ------------------------------------------- The right to privacy is guaranteed under Article 31 of the Constitution which provides as follows: Every person has the right to privacy, which includes the right not to have – (a) Their person, house or property searched. (b) Their possessions seized (c) Information relating to their family or private affairs unnecessarily required or revealed; or (d) The privacy of their communications infringed. In Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10; others [2015] eKLR, the official opposition party the Coalition for Reforms and Development (CORD), and the Kenya National Commission on Human Rights (KNCHR) filed a petition against the government to reverse the amendments on surveillance. In a ruling by a five judge bench by the high court of Kenya, the court said "To our collective mind, and taking judicial notice of the numerous terrorist attacks that this country has experienced in the last few years, we are of the view that the interception of communication and the searches contemplated under the two impugned provisions of law are justified and will serve a genuine public interest. The right to privacy must be weighed against or balanced with the exigencies of the common good or the public interest:" Source: http://kenyalaw.org/caselaw/cases/view/106083/ On 30/12/2015, Grace Mutung'u (Bomu) via kictanet <kictanet@lists.kictanet.or.ke> wrote:

Ali and all, I understand that these are regulations (subsidiary legislation) meaning that they are just meant to make implementation of the main law (KICA) smoother. According to the provisions of the Statutory Instruments Act, the same will still go to Bunge for scrutiny. That said, it is more useful to have wide consultations before the Regulations are finalised. I admit that I did not have enough time to go through all the regulations after the message was posted here. I join in asking the Regulator to consider the following so as to make the process more meaningful: a) Have a stakeholder's forum (even online) to take stakeholders through the rationale for the Regulations. I believe this forum has many people who are interested in critiquing the Regulations from an informed point of view. b) Give stakeholders a bit more time to consider and give input to the Regulations, say a least two -three weeks in January c) Publish the Regulations with incorporated amendments (if any) before taking them to Parliament for scrutiny Regards,

2015-12-30 16:01 GMT+03:00 Kipkemoi Kiptum via kictanet < kictanet@lists.kictanet.or.ke>:

...

President Ulysses S. Grant (General(Retired)) First Inaugural Address Washington, DC Thursday, March 4, 1869

Citizens of the United States:

Your suffrages having elected me to the office of President of the United States, I have, in conformity to the Constitution of our country, taken the oath of office prescribed therein. I have taken this oath without mental reservation and with the determination to do to the best of my ability all that is required of me. ...

[snip - but not so we loose the message]

...

I shall on all subjects have a policy to recommend, but none to enforce against the will of the people. Laws are to govern all alike—those opposed as well as those who favor them. *I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution. *

*Kip*

*A Cruce Salus*

On Wed, Dec 30, 2015 at 2:54 PM, Waithaka Ngigi via kictanet < kictanet@lists.kictanet.or.ke> wrote:

...

Ali,

It's a trend that's currently happening across the board where the most extreme version of the laws becomes *default‎* and it's only watered down after protests and legal suits.

Very unfortunate.

Waithaka Ngigi

Alliance Technologies www.at.co.ke *From: *Ali Hussein *Sent: *Wednesday, December 30, 2015 2:08 PM *To: *KICTAnet ICT Policy Discussions *Cc: *Waithaka Ngigi *Subject: *Re: [kictanet] Cyber Bill

Waithaka

You raise critical issues. My sense is that before any law or amendment is drafted for 'public debate' (more on this in a minute) shouldn't the constitutional threshold first be met?

Shouldn't the drafters of these laws and amendments exhibit utmost good faith in relation to the constitution? There is a lot in these drafts that in my humble opinion just do not meet this threshold.

On the issue of public debate/comments I have hit fatigue levels for one simple reason.

*The lack of transparency in the very process of public comments.*

Is there someone on this list who can educate us on this process? My questions:-

1. What happens after the comments/debate period expires? 2. Are people's comments incorporated? 3. Do we receive any feedback regarding our comments?

Please educate us on this.

The WCIT12 issue is still fresh in some of our minds. The community was engaged vigorously by the previous regime headed by then Minister Poghisio and his PS, Dr. Ndemo. I was in the Kenya Delegation when Dr. Ndemo declined to sign the new treaty due to major issues of contention one of which was Net Neutrality.

Enter the new regime and we now hear the treaty was later signed by Kenya. No explanation given. No announcement. Zilch.

For the community to feel that their views are being taken into account there needs to be transparency on how these comments/debates at incorporated and decisions made even before they hit parliament for debate.

My two cents.

*Ali Hussein* *Principal* *Hussein & Associates* +254 0713 601113 / 0770906375

Twitter: @AliHKassim

Skype: abu-jomo

LinkedIn: http://ke.linkedin.com/in/alihkassim <http://ke.linkedin.com/in/alihkassim>

Blog: www.alyhussein.com

"Discovery consists in seeing what everyone else has seen and thinking what no one else has thought". ~ Albert Szent-Györgyi

Sent from my iPad

On 30 Dec 2015, at 10:49 AM, Waithaka Ngigi via kictanet < kictanet@lists.kictanet.or.ke> wrote:

Just wondering,

While at it, why not just get the Red Star OS from North Korea and make it the mandatory OS in Kenya‎?

It is the *constitutional* right of every Kenyan‎ Citizen to PRIVACY which can only be lifted through a very well detailed legal process.

No act of parliament should attempt mass-collection of private data from Kenyan citizens under the guise of fighting Cyber crimes.

Waithaka Ngigi

Alliance Technologies www.at.co.ke *From: *Josiah Mugambi via kictanet *Sent: *Wednesday, December 30, 2015 10:07 AM *To: *Ngigi Waithaka *Reply To: *KICTAnet ICT Policy Discussions *Cc: *Josiah Mugambi *Subject: *[kictanet] Cyber Bill

http://www.standardmedia.co.ke/mobile/article/2000186538/new-law-tightens-no...

Quite the uproar judging by the comments online.

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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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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.

-- Grace L.N. Mutung'u Nairobi Kenya Skype: gracebomu Twitter: @Bomu

<http://www.diplointernetgovernance.org/profile/GraceMutungu>

-- ______________________ Mwendwa Kivuva, Nairobi, Kenya twitter.com/lordmwesh The best athletes never started as the best athletes. "You miss 100 percent of the shots you never take." - Wayne Gretzky. I will persist until I succeed - Og Mandino. _______________________________________________ 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/ngigi%40at.co.ke 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.

Listers, Finally got my thoughts down: Unraveling the “Kenya Information and Communications Act” Amendment Zero-Drafts http://sidneyochieng.co.ke/2016/01/unraveling-the-kenya-information-and-comm... On 1 January 2016 at 00:29, Mwendwa Kivuva via kictanet < kictanet@lists.kictanet.or.ke> wrote:

True Ngigi Waithaka.

We should be vigilant and ensure constitutional safeguards are respected and not diluted. I hope Article 19 and KNCHR are listening. They have been very handy previously in submitting informed arguments.

Regards

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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.

-- Regards, Sidney Ochieng *Skype:* sidney.ochieng | *Twitter:* @princelySid | *Website: * http://sidneyochieng.co.ke

Sid, Really good work... This makes is palatable for us non-legal types. Comments will follow... Rgds On Thu, Jan 14, 2016 at 6:54 PM, Sidney Ochieng via kictanet < kictanet@lists.kictanet.or.ke> wrote:

Listers, Finally got my thoughts down: Unraveling the “Kenya Information and Communications Act” Amendment Zero-Drafts http://sidneyochieng.co.ke/2016/01/unraveling-the-kenya-information-and-comm...

On 1 January 2016 at 00:29, Mwendwa Kivuva via kictanet < kictanet@lists.kictanet.or.ke> wrote:

...

True Ngigi Waithaka.

We should be vigilant and ensure constitutional safeguards are respected and not diluted. I hope Article 19 and KNCHR are listening. They have been very handy previously in submitting informed arguments.

Regards

_______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet

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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.

-- Regards,

Sidney Ochieng

*Skype:* sidney.ochieng | *Twitter:* @princelySid | *Website: * http://sidneyochieng.co.ke

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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.

-- *Regards,* *Wait**haka Ngigi* Chief Executive Officer | Alliance Technologies | MCK Nairobi Synod Building T +254 20 525 0750 |Office Mobile: +254 716 201061 | M +254 737 811 000 www.at.co.ke

Walu The writer forgot to mention Regulators! :-) 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 Jan 15, 2016, at 8:41 AM, Walubengo J via kictanet <kictanet@lists.kictanet.or.ke> wrote:

Listers, for those interested, another view on Netflix,

No matter where Netflix goes in Africa it will run into these two problems <http://qz.com/589907/no-matter-where-netflix-goes-in-africa-it-will-run-into-these-two-problems/>

<http://qz.com/589907/no-matter-where-netflix-goes-in-africa-it-will-run-into-these-two-problems/>

No matter where Netflix goes in Africa it will run into ... <http://qz.com/589907/no-matter-where-netflix-goes-in-africa-it-will-run-into-these-two-problems/>Many people are likely to find themselves Netflix and buffering rather than chilling. View on qz.com <http://qz.com/589907/no-matter-where-netflix-goes-in-africa-it-will-run-into-these-two-problems/> Preview by Yahoo

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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.