It’s Already Part of the Constitution!

Needless to say, there’s been a lot of public frustration and anger in Kenya with the passing of the Kenya Communications (Amendment) Bill 2008. There’s a spillage, all-over.

In reading MSM news, blogs and forums on the happenings over the past few days, one things is clear: people have not read the Bill in its entirety. Also, are we getting riled up for the right reasons?

Why do I say this?

Well, what are some  of the major issues in contention?

  1. The Internal Security Minister can take possession, by order, of telecommunication or broadcasting equipment
  2. The Minister can order Postal articles intercepted or detained

Guess what? These conferments are already part of the Constitution! They are contained in the Kenya Communications Act 1998.

Excerpts:

88.(1) On the declaration of any public emergency or in the interest of public safety and tranquility, the Minister for the time being responsible for internal security may, by order in writing, direct any officer duly authorised in that behalf, to take temporary possession of any telecommunication apparatus or any radio communication station or apparatus within Kenya, and -(a) in the case of radio communication, that any communication or class of communication shall or shall not be emitted from any radio communication station or apparatus taken under this section; or

(b) in the case of telecommunication, that any communication within Kenya from any person or class of persons relating to any particular subject shall be intercepted and disclosed to such person as may be specified in the direction; or

(4) A person aggrieved by a decision of the Minister under subsection (3) as to the compensation payable in respect of anything seized under this section may appeal to the High Court within fourteen days of such decision.

(c) in the case of postal services, that any postal article or class or description of postal article in the course of transmission by post within Kenya shall be intercepted or detained or shall be delivered to any officer mentioned in the order  or shall be disposed of in such manner as the Minster may direct.

(2) A certificate signed by the Minister for the time being responsible for internal security shall be conclusive proof of the existence of a public emergency, or that any act done under subsection (1) was done in the public safety or tranquillity.

(3) A telecommunication apparatus constructed, maintained or operated by any person within Kenya or any postal article which is seized by any officer duly authorised under subsection (1) (a) shall be returned to the telecommunication operator at the end of the emergency or where such apparatus or article is not returned, full compensation in respect thereof, to be determined by the Minister, shall be paid to the owner.

The Bill passed on December 11th, 2008 is an amendment to the Kenya Communications 1998 Act. The Information and Communications Bill 2008 is not the ‘Media Bill’; this was a separate Bill became the Media Act 2007. The ‘ICT Bill’ was supposed to be a separate Bill and is still in a drafting at the Ministry of Information and Communication.

According to Parliament’s Bill Tracker, it has not been introduced on the Floor of the House for debate. In fact, sections of the (Information and Communications) Bill can be found in the (Kenya Communications) Amendment 2008 Bill.

The main objectives of the Amendment Bill (p. 77):

kca2008reasons

The Amendment Bill actually empowers the CCK more than it does the Minister of Internal Security (p. 77-78):

kca2008purpose

The Kenya Communications (Amendment) 2007 Bill that was withdrawn from Parliament on August 30th, 2007 during the 2nd Reading, was the contentious Bill.

On occurrence of emergency or in the interest of national security, Sections 129 – 133 (would have) conferred on the Minister of Internal Security powers of:

  • Entry and search of business premises,
  • Seizure of telecom or broadcasting equipment
  • Forfeiture and disposal of confiscated equipment
  • Interception of postal articles, etc.

So a lot has changed since then. It’s been stripped down, having several sections were taken out.

The Amendment Bill is not perfect; in fact, there are some controversial issues with cross-media ownership that could be challenged and how long “temporary possession” of seized media assets is, or even if they should be seized in the first place.

I think what we should be more concerned about is the Kenya Communications Act 1998; in other words, what the Amendment Bill left intact in the Act, as shown in the excerpt above, that probably should have been amended.

That said, I encourage everyone to take another look at the Amendment Bill and draw their own conclusions.

Related Posts

  1. Thoughts on reprogramming of mobile phones as mentioned in the Bill Act.
  2. Kenya Communications (Amendment) Act 2008: Gazetting delayed, Under Review
  3. Why was Gazetting the Amendment Act Delayed?
  4. Is the Media being disingenuous on the Amendment Act?