Saturday, January 03, 2009

Media Bill 2008

(Download and read the KCA Bill 2008 (PDF) here)

Regarding the Kenya communication (amendment) bill 2008: Like with the last controversial media bill, getting a copy of the bill that has the media up in arms has not been easy.

I’ve seen one PDF version of the bill, and these are some other aspects of the bill brought forward by now cowed permanent secretary Bitange Ndemo and hapless Minister Samuel Pogishio which was on January 3 2009 signed by President Kibaki who hailed at as a milestone bill for e-commerce
What’s in it?

Content government which produces the most content gets to decide what’s in the in the public interest? Who knows what’s in demand e.g. all TV stations play music videos targeted at youth - and does that meet the requirement to of Kenyan programs that serve children - also set what time programs can be shown – does the CCK have time for this really?

Controversial topics: coverage must be balanced and where a complaint is lodged e.g. on a news story, must take action

E-mail (electronic record) now recognized as official communication. E.g. companies with tens of thousands of shareholders, legal correspondence

Electronic contracts are now recognized in law e.g. by e-mail – they can also can include security features like an e-signature, and can be for official government transactions

Electronic signatures now recognized except for wills, and title deeds
Electronic fraud/forgery now outlawed, but the maximum fine is just 200,000 (~$2,500) or two years in jail

Electronic files now admissible in court if it meets criteria specified e.g. the requirement of banks to provide physical statement and letters in court, can now be substituted by printouts. In addition tasks performed over several computer networks can be deemed t have been on one computer and qualify

Kenya gazette electronic version of the Kenya gazette now recognized as authority

Fair play new restriction include monopoly of programming and unfair competitors may be fined up to 10% of revenue (ii) but also discrimination of some kind is banned – this could be outdated as mobile companies in Tanzania and Uganda have introduced location based discounts - depending on their location at the time of calling and the level of traffic on the network

Hacking now outlawed, but the maximum fine is just 200,000 (~$2,500) or two years in jail. Elsewhere it states a fine of 1 million and jail of 5 years

Infrastructure sharing e.g. mobile phone towers may be shared, where no agreement can be reached between providers minister may mandate this (co-location)
Mobile phone reprogramming outlawed 300,000 or 3 years in jail for those seeking to unlock the I-phone. Elsewhere it has been said even downloading or changing the ring tone on your phone constitute reprogramming

Movie censorship empowers decisions made by the Kenya film censorship board ? to bar/edit films they have reviewed

Pornography outlawed– publication of obscene material online (including forwarding of obscene e-mail) liable to a fine of 200,000 and 2 years jail.

Vernacular radio/TV elevates and restricts vernacular broadcast stations – mandates that members of the community participate in the selection and provision of programs to be broadcast. But also restricts what parts of the country they can be broadcast - what is the interest of one media house to broadcast in several languages?

- Regulator CCK (communications commission of Kenya) gets powers it does not need nor do the members understand, but they can hold them just in case, or till the day they need them like the next election
- New tax (i) universal service fund charged on all licenses – mobile phones, television, radio etc. which the minister for information will set. funds raised can be given out as loans or grant for provision of service to rural or under-served areas

Overall an omnibus bill combines communications and broadcast, good and bad characteristics, it is here to stay and we all have to adapt to it now that it is law

More training needs to be done now, at the judiciary - on the new laws, at banks and companies - on the consequence of e-mail communication since its now binding and enforceable, and in offices everywhere - on the sharing of passwords and other secure resources

Banks have a framework for e-commerce; also there’s more government bureaucracy in this bill – a universal service advisory council, and more members to the CCK Board.


coldtusker said...

Too much power given to the CCK which can be stuffed full of cronies of the current & future president...

Also CORRUPTION like when dan 'the idiot' moi was president... he used to deny licenses unless he was given a bribe...

Unknown said...

Sad but I see people complaining simply because its fashionable to do so. Let us not be manipulated and hearded like mindless sheep in 2009.

Can we focus on specific issues in a constructive manner? What are the pros and cons of tis bill and how do they measure up against each other?

What exactly is objectionable in the Communications Amendment bill? Why is it objectionable? Does it invalidate all other benefits of the bill? what is the proposed alternative?

MainaT said...

Good summary. You missed out opening of letters by Posta which they can do without specific pretixt.
Its a very poorly drafted law with many parts colliding or mixing others.

Sec88 is now reality-btw, it initially didn't include broadcasting equipment. All because Poghisio was annoyed by coverage relating to the allowances he over-ate. My understanding is that he and media had actually gone thru a draft in which he was to delete sec88 or parts of it.
Majorly, the bill requires editing.
Also if cck is going top have those overarching powers, it might be prudent to have media representation.

Anonymous said...

I've long ago dissuaded myself of the notion that laws in kenya mean anything. Why did the MP's even bother "changing" the law when they can already get away with whatever they want.

*Lucy slaps a reporter (battery) and gets away with it.

*Michuki raids a media house and destroys their equipment (vandalism) and gets away with it.

*Cholomdely kills 2 people and Amos Wako pretends to prosecute him. Does anyone believe he'll spend any significant time in jail?

The truth of the matter is, if you have enough money and power in Kenya, you can operate above the law.

We all need to stop fooling ourselves about kenya being a law abiding state.

Anonymous said...


Exactly! I could not have put it any better myself. The so called "Media Freedom" is an illusion and has never existed since independence.

There was no media bill when Lucy, Michuki and Arturs raided the media - with IMPUNITY. And the damage was great - including assault. Did they face justice? Was any of them "demoted"? Was there any consequense for their actions?

Was there any press freedom then?

In Moi days (and laws haven't changed) police could sieze and destroy equipment etc. Kibaki has the same powers and can use them any time - Media bill or not!

The media should stop CHEATING Kenyans about what is really happening on the ground. Our leaders and those connected to them are generally "above the law". All the AG has to do is issue a nulle prosequi and thats it - case closed!

As long as cops can arrest you on the streets and lock you up for "loitering", as long as colonial laws still govern us, as long as executive powers are vested in one or two individuals we cannot claim to be free!

We need to ask tough questions and seek some painful answers. How did the bill get to the president? Who passed the bill in Parliament? Isn't it the same tax evading thugs raving at the President? Aren't the MPs really just as guilty as Prezzo for betraying Kenyans (if that is really what has happened) by failing to excercise due diligence in their work?

Now the dumb sheep will follow their shepherds and start protesting loudly for NOTHING (really) bringing further shame to our country. 90% of those to be tear gassed in the streets will not have read the bill (let alone analyzed it rationally).

If you were to stop a protester and ask them to specifically say whats the issue is, why they are on the streets and how it can be addressed you will get the dumbest responses on this planet. Then you realize that the poor morons dont even read the papers and are, in fact, just venting about NJAA (hunger) rather than media bill.

Consequenses: External parties will see political instability... economic recovery is delayed further as investors review their position... inflation continues.. food shortage.. Fast forward... May 1, 2009 - Labor day.. PM walks to the dais and the same stupid sheep (now more hungry than ever) start chanting UNGA! UNGA! UNGA! dumb can people get?

Anonymous said...


Insightful breakdown of the issues with the communications bill in its current form.


Anonymous said...

Quite insightful thanks.

I think the communications bill is not all about media. There are many other stakeholders who were consulted I know at least during the past four years. I recall bodies such as the Kenya Private Sector Alliance getting engaged and for a long time participants being asked to contribute. i therefore disagree with the writer in the Sunday Nations analysis on page 13 magazine that nobody had complained about e-commerce. Indeed, we did and the bill is the fruit we've been waiting for. Let media stakeholders not trash the communications bill just because of one section. Lobby for amendment instead. I entirely agree with the presidents action otherwise this would have remained elusive, just like the constitution amendments we've been longing for.

Anonymous said...

Good summary Banks.

Now one thing occurs to me from a business perspective. That the furore amongst media owners (forget writers - most of whom I'm not sure have even read the Act) is more about the implications for cross-ownership of media than anything else.

The fact is today, going up against an established media behemoth like Nation Media Group is as the sage that signed the bill on Friday once said -"trying to cut a mugumo tree with a razorblade."

If you wish to launch a radio station today, call it G-FM and NMG is launching its QFM, chances that you will break into the market with the same ease are practically nil.

While you would need to spend a fortune on advertising and maybe roadshows to create awareness of your station, NMG would simply need to take out full-page ads (essentially for free) in its dominant Daily Nation newspaper for a week or two and also prime ad spots on its NTV station as well as on Easy FM to steamroll the competition.

Hence, the media owners apprehension with section VI C which states in part:

84C -Anti competitive conduct

"any abuse of a dominant position which unfairly excludes or limits competition between such operator and any other party"

and 84S1 (iv)"Apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage"

With all of the major media houses looking to expand to cover the "full-spectrum", one can see why media owners would be jittery over having laws that touch on cross-media ownership.

Unfortunately, for intellectually lazy or reluctant researchers, it is enough to go with the dominant story in the media that it is all about media freedoms and impending raids by government on their premises.

In a debate where the media is also one of the protagonists, I think it would be too much to expect that the floor would be even and that both sides (government and the media) would be placed on the same podium to make their case.

Government's position on this has been subjected to interpretation while the media's position is always delivered verbatim.

I think we need to be more intellectually curious to hear both sides of the story and I as a journalist have not as yet seen how this Act affects my daily news gathering routine yet I've read the bill.

Anonymous said...


Kudos for the Solid Points.

It is written in the bible "don't ask a woman for advice about her rival" or something to that effect (Proverbs).

The media owners clearly overstepped their boundaries in pursuit of their private agendas. If you read the news it is as if all is lost. There are so many intelligent options available to them - why do they choose the most primitive ones?

Because PEV taught them that there is power in the masses.

I am appaled when I see media trying to start a "spitting contest" between Raila and Kibaki. The purported argument being that since Kibaki exercised powers conferred to him (an only him) by law, it follows that Raila is less poweful and therefore the entire coalition arrangement is unbalanced and unfavorable for ODM. This is ridiculous. The president has always been at the top of the pecking order. even in state functions Raila invites Kibaki to speak.

So far, both have done a decent job of staying above pettiness.

Of course people like Muite (who are against coalition) will cheekily try and hand ODM the rope to hang themselves... so we go back to the old winner take all system...

Motives... Motives... Motives...

"Through clever and constant application of propaganda, people can be made to see paradise as hell, and also the other way round, to consider the most wretched sort of life as paradise."
— Adolf Hitler

bankelele said...

Coldtusker: do we even know the current board? They will have so many meeting to review TV programs

Maishinski: I was impressed by the bill, and while I share the censorship concerns of the bill, they barely feature

MainaT: I got one x-mas card in the post box this and the volumes are diminishing by the month. GoK is welcome to examine my box anytime, but e-mail is another matter
Despite what Poghisio felt, he can’t gag the media and he will and Bitange are the fall guys who will live to regret their tangles with the media

KE: exactly impunity (the events you describe) is above any law

Maishinski: all those events happened before the bill and could happen again if snakes are rattled

Moses: thanks

Cell-Video: thanks, my point was, the bill should have been made more widely available for the ‘public’ to read

Man143Steph637: nice to hear that you as a writer is not perturbed by the bill. I was not able to locate the cross-ownership clause in the draft I saw – is it section 84? Will do another read

Anonymous said...

Thanks Bankelele, Is there anywhere online where I can get a copy of the media bill?

Anonymous said...

thanks for this balanced post. it's a welcomed and valued breath offresh air! much that i agree with has already been said by yourreaders, but if i may add, for me, the media has highlighted thepressing need for civic education by presenting a skewed story thathas resulted in a huge number of people jumping on theprotesting-because-we-are-unhappy-and-we-know-our-rights-but-haven't-yet-assessed-the-factsbandwagon. to my mind, this bears a semblance to the days when we usedto wait to be told who to vote for. i managed to get a copy of the said bill and still wondering whatexactly clause 46H means. a valuable service would be for a lawyer to"translate" the bill in its entirety into lay man's terms so that wemay make an informed opinion. and *then* take to the streets if wedeem it worthy. * * denotes italics.

Anonymous said...

Thanks Banks for posting cos I was one of the people who didn't know much else about the bill (now a law!) other than the clauses highlighted in the media. Now I can read it and make my own informed mind, which is more I think than some of the legislators who passed it actually did.
I think it was utterly clumsy of the government to lump together serious legislation that is necessary for the growth of e-commerce together with those punitive measures on the media its a case of the proverbial rotten apple that spoils the whole basket.
I also have major problems with more responsibility being lumped onto CCK which has failed to be effective in it's current mandate on infrastructure issues and especially on ensuring the communication providers provide the proper level of service. e.g. how is Safaricom allowed to provide such high levels of dropped calls without any form of censure from the CCK yet their licence obligation is to provide at least 96% call completion (I'm talking from personal experience of course, I think mine is <70% call completion)The question is how on earth they will be able to set codes and standards for the media? (section 46H)

Anonymous said...

Finally figured it out. The drama is about what the Communication Amendement Act does NOT contain (i.e. repeal of section 88) rather than what it does contain.

There are some ambiguities in the law itself hence its not very well drafted.

However the flaws overall are like 20% and can be addressed pronto via a new bill when parliament resumes.

Like Agwambo said, there is nothing urgent that justifies the Hulabaloo.

Obie said...

@banks If only they were able to implement some of laws such as track my email... I'm not worried. For Bitange(Red Herring), I am.

@Man143Steph637 couldn't have put it better!

@sci-culturist how can one "translate" without "interpreting"...? I wonder... but agree.

Anonymous said...

The Kenyan media and its shticks! I have patiently waited for one of the media houses to print the relevant clauses in the Bill and its arguments/interpretations of the same to no avail. All I hear are allegations!

Reading the law, I see nothing wrong with it. In my opinion there are two reasons for the media to complain.

1. Michuki was within the law (Clause 88 of the Communication Act 2 1998) to raid the Standard - the main reason why he has never been sued or had to resign. The powers were/are contained in the 1998 Media law that Moi passed. The Kenyan media wants this Act to be included in the new Amendment, so that it can be repealed.

2. The CCK has been empowered to do a lot of things but there is no one from the Kenyan media represented in the Council. Some sort of representation would be good.

But look at the Governments argument, why include the media in the council when it failed to regulate itself during the elections in regard to hate propagation? I have yet to see a statement by either the Media Council of Kenya or the Media Owners Association of Kenya concerning its own members conduct during the 2007 elections.

pesa tu said...

Its sad that the media overlooks the positve aspects of the Bill -such as creating a regulatory framework(if i can call it that) for E-Commerce.
Too many of the 'analysts' on the news are critics who haven't read the Bill.

NaturalSceptic said...

Thank you for posting it, and a summary - its pretty lengthy.

By the way, I went to to look up the IRI issue the standard newspaper raised, and found part of the media and civil society have been in bed with IRI all along. Go figure. They never told us:

Anonymous said...


The law has been passed. If there is no more Freedom of the press, by what fantastic miracle are they still able to publish the lies, provocations and concotions that they are currently publishing?

I have seen some spirited attempts by the media to punish Kibaki and possibly bring down the coalition government - irrespective of consequenses. That is how powerful, short-sighted and irresponsible they have become!

Aren't the Kenyan media, by their very actions, justifying the case for media regulation?

coldtusker said...

Most comments here betray the commentators' short-term thinking...

The ICT portions should have been passed as required. Those are NOT in contention.

The portions that do NOT relate to ICT are problematic. Why were they added to the ICT bill?

Many of you are missing the insidious nature of the 'disputed' portions/clauses of the bill.

Kenya became a de-facto one-party state under crooked wa ngengi... who banned KPU. Then dan 'the thief' moi went ahead with section 2A (de-jure)...

coldtusker said...

Do you trust the government?

I do not. Historically, they have been:
- corrupt (anglo-fleecing, goldenberg)
- callous (likoni clashes, 2008 PEV)
- stupid (over-bureaucratic thus aiding corruption, poor policy decisions)
- nepotistic (appointment of moronic friends & family to plum posts e.g. muhoho at KAA, kotut at CBK)

And why should I think it is any different now or in the future?

Unknown said...

I had never read the Media Bill, and if I had not read your summary and the comments from other readers, I would have always thought it's all about gagging the media.. and only that.

so for that, I thank you.

oh, and Happy New Year.

Anonymous said...

@ Coldtusker... and your point being?

Reality is that the law can be amended. Power corrupts. What we have here is a media with unchecked powers.

I was for 100% media freedom with self regulation, but, now I think some checks and balances are definitely needed.

pesa tu said...

Hi all, i just did a post on the facts of the KCA here:media Bill<

I hope its informative

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