'MEDIA BILL' AKA Kenya Communication Amendment Bill-2008 -THE FACTS, MYTHS & OPPORTUNISTS

FACT 1- The Kenya Communication Amendment Bill-2008 is an amendment of an earlier Act-The Kenya Communications Act (No. 2 of 1998) that is 10 years old. Hence, some of the 'contentious issues have been the law for since 1998.

FACT 2-Section 88 of the Kenya Communications Act (No. 2 of 1998) has been in existence since 1998.It empowers the Minister(for Information) to seize broadcasting equipment during a state of emergency or in public interest. Almost all Western democracies have similar explicit or implicit laws.

Of course, there is room for abuse but as Parliament showed as during the Kimunya-Grand Regency saga; Parliament can flex its muscles against the executive when it wants to. Under the current dispensation Parliament can prevent such abuse.

By the way why didn't the media complain about this law back in 1998? How come ODM didn't propose an amendment when it was passing through parliament.

FACT 3- The amendment provides a framework for E-commerce. For instance, it creates legal recognition for electronic contracts and signatures. It also, makes hacking a crime. Simply put, prior to the amendment if you bought goods online and had a dispute with the retailer you couldn't seek redress in Kenyan courts.

A more devious example is that if you hacked into a bank and stole money, the prosecution would find most of the evidence inadmissible in court. The hacker would have high chances of going free.

Bankelele has an informative summary on these features of the amendment here.

FACT 4- ANTI-COMPETITIVE BEHAVIOUR. The amendment provides for regulation and prevention of anti-competitive behaviour.Part VI C section 84- Fair Competition and Equal Treatment regulates competition.

I suspect that this is one of the provisions that worries media owners. Since, it may make it harder for large media groups that own broadcasting and publishing interests to use their muscle against smaller competitors. Since, they can't make noise about the anti-competitive regulations in public; section 88 is the trojan horse for raising concerns about other aspects of the amendment.

This amendment has many myths. Read on:

MYTH 1- The law will severely restrict and monitor the broadcast of programmes. -False

Section 46 H of the amendment provides for the regulation of broadcast content where broadcasters don’t adhere to self regulation. In Kenya, via the Media Council and or Media Owners Association- broadcasters can self regulate themselves. Hence, the government won't directly regulate broadcasts.

Other countries have Government regulation. Remember Janet Jackson and her wardrobe malfunction?

MYTH 2- This is the funniest one. The law prohibits changing your cellphone ringtone.

Section 84G- criminalizes cellphone reprogramming. As i understood (when i read it), reprogramming refers to changing a phone's network ID number or identity. Erasing this number prevents a mobile handset from being tracked or locked on a network (if stolen).I haven't seen anything about changing ringtones, its still legal(my opinion).

OPPORTUNISTS

I wonder why politicians didn't come clean about the amendment earlier. ODM played the populist card and lost-(Daily Nation 7th January, 2009-editorial cartoon).They came out looking like hypocrites.

PNU played the rational card and formed a committee to liaise with the media.

THE MEDIA whipped up public information with half-baked facts and forced the Government to the table. Their use of erroneous facts to further their ends makes a case for better regulation of the media.

The President came out with the facts today. It was too late; he had lost in the court of public opinion. He needs a new spin doctor. The current one has spun for too long and is giddy. The new one must be a politician or politically savvy i.e. a media practitioner with agwambo's or kalembe's political instincts.

MY TWO SHILLINGS

I weep for the poor and ignorant Kenyans who are pawns in a game played by their leaders. I wonder who will save them. Certainly, not the Press or the Church.

OTHER LINKS:

-Startup Kenya has an excellent post on this topic here.

-Kenya Communication Amendment Bill-2008- the ammendment that was signed into law last week.
-The Kenya Communications Act (No. 2 of 1998)-The original Act thats been ammended

-Section 88- Contentious clause of the Kenya Communications Act (No.2 of 1998)

NOTE: I am not a lawyer and the opinions expressed are a lay man's understanding of the law.Please don't comment if you haven't read the law.There's enough ignorance going around