STILL WAITING FOR ICT LAW

By Rebecca Wanjiku

It has been a long wait for an ICT Act, and there is no immediate sign that the wait is over. Though the draft policy was presented to the cabinet by Attorney General Amos Wako, it is yet to be published in the Kenya gazette.

If the draft is published in the gazette, then there can be a chance it will be presented to parliament for debate before end of this year.

Though the AG’s office claims to be attending to the bill together with others pending, the challenge is how to harmonize the draft bill to be in tandem with the Communications Act (1998).

Wako’s office is debating whether to come up with a separate ICT Act or to repeal the communications Act to incorporate the draft bill.

Lawyer Paul Mwangi, who has been following developments of the draft policy, says that the AG can come up with a new Act so long as it does not contradict the Communications Act.

“The draft bill can be published and presented to parliament then they can decide whether to enact an ICT Act or to come up with a more comprehensive Act by repealing the Communications Act and,” says Mwangi.

Mwangi argues that the excuses by the AG are about convenience, and nothing substantial. He adds that it is just a matter of codifying the law, and that can come up with another Act and they will still be applicable.

Lawyer Joseph Kihanya agrees that Bills can be debated and passed to repeal Acts in force.

“Why this cannot be done with the Communications Act (1998) I can not tell,” says Kihanya.

Kihanya adds that Telecommunications law demands that the laws be consolidated into one statute. He illustrates this by quoting the UK Communications Act 2003 which was consolidated into one statute that deals with every aspect of ICTs.

The UK Communications Act (2003) deals with issues ranging from regulations, media ownership and control, internet, ecommerce to the relationship between the ministry and the British Broadcasting Corporation.

The UK CA (2003) is divided into parts that exhaust legislation relation to the field for instance, part 5 deals with competition in communications market. Under this part, there are chapters guiding on functions of the ministry according to the law, and media mergers, detailing how they should be carried out.

The Kenya ICT draft bill is a product of the Economic Recovery Strategy for Wealth and Employment Creation (2003-2007) and was developed by the Ministry of Information & Communications in January 2006.

According to the ministry of Information and Communication website, the ICT draft bill is seeking to encourage sustained economic growth and poverty reduction, promote social justice and equity, mainstream gender in national development, empower youth and disadvantaged groups, stimulate investment and innovation in ICT, and achieve universal access.

The draft bill addresses market structure, policy objectives and targets, implementation strategies, universal access, and the institutional framework of information technology (IT), broadcasting, telecommunications, radio frequency spectrum, and postal services.

But some stakeholders in the ICT industry feel that some amendments should be made to the draft before it is presented for debate. Media owners feel that the draft has not adequately addressed their concerns and instead has come up with draconian measures regarding media ownership.

Ends