Planned amendments bode ill for Communications Authority
What you need to know:
- It still beats all logic why a modern, self-declared digital government would want to drag the country back to the so-called dark days.
- If the famous voting machine in parliament, otherwise known as the ‘tyranny of numbers’ is anything to go by, these amendments are likely to pass.
There is a proposed bill, the Miscellaneous Amendment Bill 164 of 2015 that proposes to move most of the communications regulatory powers to the Cabinet secretary.
It is not clear why the Executive suddenly wants to become the regulator in a day and age when global practice seems to be to keep the two as separate as possible.
In seeking to understand the rationale, one needs to look at the 'Memorandum of Objects and Reason’ section, which states as follows:
‘The Bill seeks to amend the Kenya Information And Communications Act, 1998 section 2 of 1998) so as firstly to align it with the Competitions Act, 2014 in respect of the criteria for being a dominant market
undertaking and secondly to harmonize the regulation making power so that it is exercised by the Cabinet Secretary in consultation with the Authority’.
Two aims seem to drive the new amendments. One is to put the contentious issue of dominance under the Competition Authority rather than the Communications Authority. The second is to enhance the Cabinet Secretary’s role in communication regulatory matters.
For those with a little bit of communications history, it is easy to see the deliberate shift towards the old days when communications regulation was strictly under the Minister of Transport and Communications.
In those days, prior to the Kenya Communications Act 1998, the then Kenya Posts and Telecommunications Corporation (KPTC), a fully-owned government parastatal, was the father, mother and grandparent of all regulatory matters in Kenya.
The performance of regulation then is well documented and it was clearly a case study in ‘how not to regulate’.
So it still beats all logic, despite the intended rationale for the amendments, why a modern, self-declared digital government would want to drag the whole country back to the so-called dark days.
'DEPARTMENT OF THE ICT MINISTRY'
Indeed, the Kenyan Constitution (2010) anticipates and clearly states that we should have a more independent regulator than what we have always had.
As stated in Article 34: Section (5)-:
‘ Parliament shall enact legislation that provides for the establishment of a body, which shall—
(a) be independent of control by government, political interests or commercial interests;
(b) reflect the interests of all sections of the society; and
(c) set media standards and regulate and monitor compliance with those standards.’
Several court battles have recently been filed against the current regulator simply because their decisions, however well-intentioned were deemed not to have been undertaken by an independent regulator as envisioned in the new constitution.
Why, then, would the government deliberately plan to set itself up for more of these court battles by proposing amendments that clearly make the regulator a department of the ICT Ministry and therefore not independent from the Executive?
JUST WIND UP THE CA
Most of the proposed amendments are about replacing the role of the regulator with that of the Cabinet secretary by inserting the words ‘The Cabinet secretary in consultation with the Communication Authority shall make regulations for…’
As an example, see Section 5(b)(5) on ‘Freedom of the media’. The new proposals say that ‘The Cabinet secretary in consultation with the Communication Authority shall make regulations for the better carrying out of the provisions in this section’.
In Section 27(d) on ‘SIM cards’, the new proposals say that ‘The Cabinet secretary in consultation with the Communication Authority may make regulations with respect to SIM Card registration, storage, retention, transfers….’
There are many other amendments of similar a nature, and the clear message is that the regulator cannot make operational decisions unless in consultation with the minister.
Indeed, one could argue that it is effectively the other way round - the Minister making the decision in consultation with the regulator.
If the famous voting machine in Parliament, otherwise known as the "tyranny of numbers", is anything to go by, these amendments are likely to pass.
However, the government should do Kenyans a favour thereafter and wind up the Communications Authority of Kenya, since its role will essentially have been absorbed by the Ministry.
Mr Walubengo is a lecturer at the Multimedia University of Kenya's Faculty of Computing and IT. Twitter: @jwalu Email: [email protected]
