A few weeks ago, three critical events happened touching on the ICT sector: on three different occasions, I formally received different documents touching on ICT sector legal and policy reforms.
One is the Draft National Addressing system of Kenya Bill and Draft National Addressing System of Kenya Policy.
Two is the Interim Report of the Sectoral Working Group on Legal and Policy Reforms.
Three, is the draft Kenya Information and Communication Bill and accompanying Regulations.
All these point to a raft of desired, ongoing and forthcoming reforms in the various segments of the ICT sector. For instance, the bill and policy on the national addressing reforms seek to create a system that can be used by communities and authorities in naming and numbering streets, buildings, locations and properties, consistent with established international standards.
The review of Kenya Information and Communications Act and its regulations seek to update the anchor law governing information and communication in the country, while the Sectoral Working Group’s mandate is cross-cutting.
The question that arises is why reforms and why now? There are two answers to this question. One, is technological advancements, and the other is a shift in Kenya’s constitutional dispensation.
Over the last three decades, there have been significant technological advancements in the ICT sector. There is now a host of new technologies and emerging ones that are not significantly addressed in law, and many more are anticipated. The much publicised Worldcoin issue and its complexities, as well as related tech concepts such as AI, big data, crypto currencies and the like offer a good illustration.
The current legal framework in the sector, which consists of various pieces of legislation, pre-dates most of these advancements in technology. For instance, the Kenya Broadcasting Act which makes provisions for the national broadcaster KBC, was enacted in 1988. The Kenya Information and Communication Act and Postal Corporation of Kenya Act, were enacted in 1998.
The Kenya Information and Communication Act is the anchor legislation that provides for regulation of telecommunications in all its spheres, broadcasting, postal and courier services, among others. Postal Corporation of Kenya Act establishes the national postal service provider Postal Corporation of Kenya. With exception of a few, it can be seen that laws governing the sector are a few decades old. It is worth recognising that there have been piecemeal, and sometimes significant, amendments to some of these laws.
As it is often the norm, the law plays catch up with technological advancements. For instance, when these laws were enacted, radio and TV broadcasting was understood in terms of use of radio frequencies for transmission.
Today, while use of radio frequencies is still significant, media content of various kinds including TV and film, is delivered directly to consumers via the internet through over-the top channels such as Facebook, YouTube, X, Instagram, Netflix, Showmax, Viusasa and media service own websites, among others. As it stands, these modes of content delivery bypass regulation and the regulator just as they bypass the traditional modes of transmission such as cable, radio frequencies and satellite.
In Kenya, there has been concern about the appropriateness of some online content and the need to protect the public, especially minors from harmful content. In addition, the incessant moral questions on Tik Tok, suggests the need for regulatory intervention in this space. The onus falls on the government as the guardian of public moral space. Whatever intervention we choose, we must get right the balance between freedom of expression and media on the one hand, and legitimate public interests that need protection, on the other.
Second, and crucially, a significant number of laws in the ICT sector were enacted before 2010, the year of the promulgation of Kenya’s current constitution. The constitution instituted a new constitutional dispensation that has been hailed as being transformative. There is need to align all legal and policy instruments in the sector to the letter and spirit of the current constitution.
This makes the reform agenda both important and urgent. Related to this, is the need to give some critical players in the sector such as ICT Authority, Konza Technopolis Development Authority, Kenya Institute of Mass Communication and Kenya Yearbook Editorial Board, a firm legal foundation on the basis of which to operate, away from the current legal notices issued under the State Corporations Act, cap 446.
Kenya is, and has always been a leader in ICT innovation and adoption. The Kenya Kwanza Bottom-Up Economic Transformation Agenda is emphatic on ICT and the Digital Superhighway. The plan is to double the contribution of the sector to the national GDP, facilitate rapid economic growth, create jobs and transform lives.
To achieve this, a facilitative legal and policy framework is necessary. Thus, the ongoing and forthcoming reforms are tailored to foster sustainable innovation and investments in the sector, and secure Kenya’s lead in ICT.
The writer is the ICT Cabinet Secretary