State agencies in Kenya are not usually known for magnanimity, but once in a while, they pull surprises.
Such is the recent announcement by a task force of the Communication Authority in a call for public participation in the review of laws relating to information and communication.
Titled “Public Consultations on the Review of the Kenya Information and Communication Act, 1998 as Amended and Four Sets of Regulations Thereunder,” the announcement is as mouthful as it is pertinent.
Simply, CA is looking to review the KICA Act as amended (it was amended in 2011), in conjunction with other laws that relate to information and communication in Kenya.
Not only is this a refreshing call from a state agency, for many of them are “as lazy as pumpkin leaves in the hot afternoon sun” as the poetic teacher Jonathan Kariara would have said.
Rarely do they call for review of laws relating to their existence and operations, let alone call for public participation. Lest we forget, the KICA Act (1998) had a section that was found to be unconstitutional.
It stated that it was an offence to use “a licensed communication system to send a message or other matter that is grossly offensive or of an indecent, obscene or menacing character, and sending a message that a person knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person”.
In a case in which the Attorney General had charged Geoffrey Andare with violating Section 29 of the KICA Act (1998), Justice Mumbi Ngugi of the Constitutional and Human Rights Division of the High Court found it unconstitutional.
Andare had gone to challenge the constitutionality of the section, arguing it was vague and that it went against the constitutional guarantees on freedom of expression. He won the petition.
Was the lawmaking process innocent? The case was particularly interesting, partly because the regulations had not only created a nightmare for journalists but also bloggers and, perhaps, ordinary wananchi who often use “licensed communication systems” like mobile phones and social media.
Hardly do people ever send messages that do not offend someone somewhere. For example, Koran quotes or Bible verses on the seventh commandment will offend those engaged in illicit sex, and the tenth commandment on coveting will offend a would-be thief. The truth will offend and annoy every lie; hence, to criminalise it arbitrarily would make criminals of every man, woman and child.
In a period like now, electioneering (a form of public participation in governance), social media communication invigorates electoral debate and discussion. In an atmosphere of bad laws, the WhatsApp or Twitter caricatures of various candidates without which elections are dry and drab, would be subject to endless litigation, instead of merely attracting innocent laughter and mirth.
It is almost serendipitous Andare challenged the KICA Act (1998). Who would have known what it would have done had it been left unchallenged? In an age of ubiquitous social media, conversations that are only mildly offending can end up making mountains of molehills.
Certain laws may be known for what they really are only if more Andares stand up. Hence the call by the Communication Authority of Kenya task force.
Laws such as Section 29 are not be the only reason CA wants to further review the KICA Act (1998). This time, they have cast the net wide to embrace ICT Policy Guidelines, 2020 to include SIM card regulations; broadcasting regulations; access and infrastructure regulations; and interconnection regulations, as well.
The matter of SIM card registration has recently garnered much media and public attention, and several issues remain pending. For example, what does it mean to re-register a SIM card? Will these regulations guarantee data protection and privacy? Who is bears responsibility for the data gathered – CA or the service providers?
It is not only national laws that concern the task force. Notably, the ICT Policy guidelines embrace mobile communication, markets, skills and innovation, as well as public service delivery. The policy notes that in 2020, there will be at least five billion people connected to the internet worldwide.
Kenyans already engage in conversations on this wide platform, and along with these are business transactions and investments. As such, Kenyan laws must not only be in tandem with international regulations but also recognize cross-border transactions and businesses.
The task force put May 31 as the deadline for submissions of memoranda. While the deadline sounds close, Kenyans may be comforted that the Communications Authority puts its finger on the pulse of the nation, not just looking back but far into the future.
It would be gratifying were more state organs as proactive and cognizant of public participation.
Dan Okoth teaches Communication at the Technical University of Kenya
