The Kenya Communications Bill, 1997

Press Release, 14 April 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: mwambui@iconnect.co.ke/wanyeki@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)