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AFRIK-IT  April 1997

AFRIK-IT April 1997

Subject:

The Kenya Communications Bill 1997

From:

Ben Parker <[log in to unmask]>

Reply-To:

African Network of IT Experts and Professionals (ANITEP) List

Date:

Mon, 14 Apr 1997 18:26:07 -0300

Content-Type:

TEXT/PLAIN

Parts/Attachments:

Parts/Attachments

TEXT/PLAIN (172 lines)

Date:  April 14, 1997

Re:  The Kenya Communications Bill, 1997

U R G E N T

                          P R E S S R E L E A S E

                   The Kenya Communications Bill, 1997


As a matter of urgency, we the undersigned, as stakeholders in the
telecommunications sector, wish to make public our views about the Kenya
Communications Bill, scheduled to be heard in this session of the House.

Collectively, we represent both private sector and civil society
interests, including media practitioners and organizations, communications
and legal NGOs as well as commercial telematics service providers.

We welcome the decision of the government to liberalize the
telecommunications sector--a decision we note as being a year overdue
according to the government's own schedule as negotiated with the
International Monetary Fund (IMF).

However, we wish to register our deep concern with both the process in
which the Kenya Communications Bill has been put forth as well as with the
shortcomings of the Bill itself.

In terms of process, we note with regret the absence of stakeholder
participation, particularly from civil society and the commercial sector,
in the conceptualization and formulation of this Bill.

In addition, the Bill, to a large extent, preempts the decisions of the
government's own Task Force on Media Law, the body we understood as being
charged with soliciting and consolidating exactly that kind of civil
society input.

The presentation of this Bill to the House before the Task Force's final
report has been made public demonstrates disregard for the government's
own process to establish a regulatory framework for media and
telecommunications. It also ignores the views of those members of the
public who have sought audience with the Task Force.

Needless to say, this disregard can only further criticism of government
Task Forces as credible fora for achieving participatory regulatory
reform.

In terms of shortcomings with the Bill itself, we note with trepidation
the absence of clear guiding principles in line with which the Bill will
be interpreted and implemented. We note with disbelief the Bill's
deviation from international freedom of expression, information and
telecommunications standards and agreements to which the Kenyan government
is signatory.

The stated purposes of the Bill are to "regulate and control"
telecommunications services, to ensure the "availability of efficient,
reliable and affordable" communications services nationwide and to
"liberalize the telecommunications sector in order to attract capital from
the private sector." The use of the word "control" is worrisome. In its
present form, the Bill could be interpreted and implemented restrictively,
oppressively, arbitrarily, inequitably and could lead to unfair trade
practices and monopolies.

In particular, we note the need for five substantial improvements to the
Bill.

Firstly, the Bill lacks vision ie. a statement of guiding principles for
telecommunications policy, elaborating on the right of Kenyans to their
full enjoyment of the freedoms of expression, communication and
information. These guiding principles would provide a yardstick for
evaluation of the proposed Communications Commission of Kenya as well as
the basis for judicial review.

These guiding principles should include:

- establishing an enabling regulatory environment for telecommunications
and telematics in Kenya;

- enabling the availability of affordable and high quality
telecommunications and telematics access to all Kenyans;

- increasing the number of and diversifying the nature of broadcasters,
service providers and choices available to the consumer;

- facilitating the adoption of the latest and most cost-effective
technologies;

- maintaining a level playing field for competitors in the market;

- lowering barriers to competitive entry;

- ensuring that social development interests are balanced with commercial
interests;

- increasing the inflow of foreign capital;

- ensuring local commercial and community-based interests are not
compromised by foreign direct investment;

- increasing the employment opportunities for Kenyan citizens.

Secondly, the regulatory body proposed by the Bill is not composed so as
to ensure its independence.  Of the eleven person Commission, no less than
seven members could be Presidential appointees. The remaining four would
be the Permanent Secretaries from the ministries of communications,
information, finance and internal security. Of these, it is our opinion
that only representatives from the ministries of communications and
information are relevant to the work of the Commission.

The establishment of an independent regulatory body for telecommunications
has not only been proposed by Kenyans, but is also outlined by
international standards and agreements on telecommunications. Of note here
are: the African Green Paper; the African Information Society Initiative
of the UN Economic Commission for Africa; and the February 15th Agreement
of the World Trade Organization.

It is therefore our proposal that a public nominations process to a more
representative and independent Commission be instituted, with nominees to
be vetted by Parliament. Nominations would be accepted on the basis of
competence and experience in a combination of two out of four areas:
media/communications; media/communications law; commercial interests; and
consumer/civil society interests.

Thirdly, the Bill proposes that appeals against the decisions of the
Commission be decided by an Appellate Tribunal within the Commission
itself. We strongly recommend that appeals against the Commission should
go through judicial process. A player cannot be a referee.

In its present form, the Bill permits drastic measures against
broadcasters and service providers without prior due process. No criteria
are set out differentiating between public/profit/non-profit interests,
nor between public/commercial/community interests. No process for the
transparent and public evaluation of adherence to such criteria is set
out.

This allows for restriction, arbitrariness and unfair competition.
Retroactive appeals are not sufficient restitution. We recommend that
criteria for a prima facie case be elaborated in the Bill and violations
of these criteria be established by the Commission before the suspension
or cessation of broadcasts, services or operations.

Finally, the Bill does not clearly outline checks and balances. While
penalties are prescribed for misbehaviour on the part of broadcasters and
service providers, no penalties or process of compensation is prescribed
for broadcasters and service providers who have been wrongfully harassed.

A scale of known penalties for known offences is necessary to check
arbitrariness and to ensure the Commission applies diligence before
punitive action. It is also necessary to prescribe time limits within
which the Commission must dispose of applications and petitions,
specifying that silence beyond the specified period should be construed as
consent. The Bill also needs to prescribe that consumer grievances against
broadcasters and service providers may be brought.


For more information or to arrange interviews on specific aspects of the
Bill, please contact (not for publication): Mercy Wambui/L. Muthoni
Wanyeki, EcoNews Africa, Tel/Fax: 725171, Email:
[log in to unmask]@iconnect.co.ke.

Please note that a committee representing the following organizations is
currently preparing a more detailed analysis for circulation to all MPs
before the first reading of the Bill on Friday April 18.

The sentiments contained in this press release are supported by:
Individual Members of the East African Internet Association (EAIA);
EcoNews Africa; Kenya Community Media Network (KCOMNET); Kenya Human
Rights Commission (KHRC); Media Institute; Network for the Defense of
Independent Media in Africa (NDIMA)

[ENDS]

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