KCA policy issues in free flow of information 1.

Privacy Kenyan practice on the right to privacy and confidentiality is guided largely by English Common law a system of law which has developed from the judicial opinions of the English judiciary. Save as a broad constitutional norm encompassed in the freedom from unlawful entry into ones premises, the search and seizure of ones property and effects and freedom from interference with ones correspondence, the right to privacy is not expressly legislated as a constitutional or statutory norm in Kenya. As a corollary, there is no express constitutional right to confidentiality and the protection of personal information. Perhaps the fullest expression that the right to information privacy may be given in the information age is the right to informational self determination, i.e., the right of the individual to determine what information about himself should be communicated to others and the circumstances under which that may be done, as was enunciated by the German Federal Constitution Court in the 1983 case relating to the country's population census The current Constitution provides for the protection for the individual against the search of his person or property or the entry by others on his premises. The right to individual privacy not expressly legislated. However, section 89(1) which guarantees the freedom of expression includes freedom from interference. 89. (1) If a court is satisfied by information on oath that there is reasonable ground for suspecting that an offence under the provisions of this Act, has been or is being committed, and that the evidence of the commission of the offence is to be found on any premises specified in the information, or in any vehicle, vessel or aircraft so specified, it may grant a search warrant, authorizing any person or persons authorized in that behalf by the Commission and named in the warrant, with any police officer, to enter, at any time within one month from the date of the warrant, the premises specified in the information or as, the case may be, the vehicle, vessel or aircraft so specified and to search such premises, vehicle, vessel or aircraft, and to examine and test any station or apparatus or obtain any article or thing found in which premises, vessel, vehicle or aircraft. (2) If a court is satisfied that (a) it is necessary to enter any specified premises, vessel, aircraft or vehicle, for the purpose of obtaining such information which will enable the Commission to gather necessary evidence in accordance with the provision of subsection(1); (b) access to such premises, vessel, aircraft or vehicle for the purpose of obtaining such evidence as aforesaid has, within seven days before the date of the application to the court, been sought by a person duly authorized in that behalf by the Commission and has been denied, the court may grant written authorization under its hand and seal empowering any person or persons authorized in that behalf by the Commission and named in the authorization, with any police officer, to enter and search the premises or as the case may be, the vessel, aircraft or vehicle with a view to discovering whether any station, apparatus, article or thing as aforesaid is situate thereon, and to examine and test it with a view to obtaining such information as aforesaid: Provided that an authorization shall

not be issued under this subsection unless either (i) it is shown to the court that the Commission is satisfied that there are reasonable grounds for believing that the use of the station or apparatus in question is likely to cause undue interference with any radio-communication used for the purposes of any safety-of life-service or any purpose on which the safety of any person or of any vessel, aircraft or vehicle may depend; or (ii) it is shown to the court that not less than seven days' notice of the demand for access was served on the owner or occupier of the premises, or, the person in possession or in charge of the vessel,. Aircraft or vehicle, and that the demand was made at a reasonable hour and was unreasonably denied. (3) Where under this section a person is authorized to examine and test any telecommunication system or telecommunication apparatus or radio-communication apparatus on any premises or in any vessel, aircraft or vehicle, it shall be the duty of any person who is on the premises, or is in charge of, or in attendance on, the vessel, aircraft or vehicle, to give such authorized person such assistance as he may reasonably require in the examination or testing of such station or such apparatus. (4) Any person who (a) obstructs any authorized person in the exercise of the powers conferred on him under this section; or (b) fails or refuses to give to any such authorized person any assistance which he is, under this section, under a duty to give to him; or (c) discloses, otherwise than for the purpose of this Act or any report of proceedings there under, any information by means of the exercise of powers under this Act, being information with regard to any manufacturing process or trade secret, commits an offence and shall be liable on conviction to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years or to both. (5) For purposes of this section "court" means a Resident Magistrate's Court. Problem The Constitution provides for the protection for the individual against the search of his person or property or the entry by others on his premises. The right to individual privacy not expressly legislated. However, section 89(1) which guarantees the freedom of expression includes freedom from interference with correspondence. The right to privacy is not expressly legislated as a constitutional or statutory norm in Kenya. As a corollary; there is no express constitutional right to confidentiality and the protection of personal information. Perhaps the fullest expression that the right to information privacy may be given in the information age is the right to informational self determination, i.e., the right of the individual to determine what information about himself should be communicated to others and the circumstances under which that may be done, as was enunciated by the German Federal Constitution Court in the 1983 case relating to the country's population census The current Constitution provides for the protection for the individual against the search of his person or property or the entry by others on his premises.Therefore the right to individual privacy not expressly legislated.

2. Freedom of expression The freedom to express and receive information has not only been a defining value of the information society but is also hardwired into the architecture of the Internet -an open and collaborative platform where people freely and in most cases anonymously share information and ideas. Existing as well as emerging communications technologies have redefined the way regulatory authorities look at information censorship and thrown into redundancy traditional means of controlling the flow of information within and outside their national boundaries.

Problem The freedom to express and receive information has not only been a defining value of the information society but is also hardwired into the architecture of the Internet - an open and collaborative platform where people freely and in most cases anonymously share information and ideas. Existing as well as emerging communications technologies have redefined the way regulatory authorities look at information censorship and thrown into redundancy traditional means of controlling the flow of information within and outside their national boundaries. In the current Constitution, freedom of expression is guaranteed under section 79(1). The right encompasses freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence. Article 33(1) of the proposed new Constitution: Every person has the right to freedom of expression, which includes
y y y

a. freedom to seek, receive or impart information or ideas; b. freedom of artistic creativity; and c. academic freedom and freedom of scientific research

(2) The right to freedom of expression does not extend to: a. propaganda for war; b. incitement to violence; c. hate speech or

d. advocacy of hatred. In Section 88 of the Kenya Communications Act 1998, it is offensive to freedom of speech and the right to property provided for in the Kenya Constitution. While we recognize that in exceptional circumstances the government may intervene in the media in the interest of state security, such power should be exercised only by the President in a clearly defined manner or state of emergency and not by any other officials freely or in an open ended manner as prescribed by the amendment act of 2008. Media regulation is necessary to ensure fair competition and ethical standards, the institution charged with this function should be independent from interference by any individual or body to enjoy the confidence of the public. Media regulation and arbitration is not a function of government. It is the duty of an independent and credible body that enjoys the respect and support of the industry and the public

3. Freedom of the Press The constitution does not bear any express reference to the press or the media. This has often been interpreted by some observers to mean that press freedom is not recognized as a constitutional norm. Others have held the interpretations that press freedom are by necessary implication included in the constitutional guarantee protecting the freedom of expression and the freedom to communicate ideas and information. Problem Even though the constitution does not bear any reference to the term media or press, section 79 guarantees that no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons).

Article 34 (1) Freedom and independence of electronic, print and all other types of media is guaranteed, but does not extend to [propaganda for war, incitement to violence, hate speech or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm or is discriminatory]. (2). The state shall not (a). exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium; or

(b). penalise any person for any opinion or view or the content of any broadcast, publication or dissemination. (3). Broadcasting and other electronic media have freedom of establishment, subject only to licensing procedures that (a) are necessary to regulate the airwaves and other forms of signal distribution; and (b) are independent of control by government, political interests or commercial interests. (4). All state-owned media shall(a) be free to determine independently the editorial content of their broadcasts or communications; (b) be impartial; (c) afford fair opportunity for the presentation of divergent views and dissenting opinions; (5). Parliament shall enact legislation that provides for the establishment of a body, which shall(a) be independent of control by government, political interests or commercial interests; (b) reflect the interests of all sections of the society; (c) set media standards and regulate and monitor compliance with those standards. Problem: This provision would effectively divest the Communications Commission of Kenya (currently the converged regulator for broadcasting, ICT, radio communications and postal services) of all of its regulatory powers over the broadcasting industry. The provision appears to be self-contradictory in two important respects: Firstly, if it is the intention of subsection (3)(a) to leave CCK with the power to 'regulate the airwaves and other forms of signal distribution", and CCK being by definition a government entity under the administrative ambit of the Ministry of Information and Communications, how is CCK not to be regarded as being "independent of control of government" as provided in subsection (3)(b)? Secondly, if as is provided in subsection (2) the state is not to interfere with any person engaged in broadcasting or to penalize such person for the content of a broadcast, how is that to be reconciled with the State's duty to enforce the constitutional prohibition against the broadcasting of hate speech (subsection (1)) and other violations of constitutional and statute law by broadcasters? In the absence of an express statement in the draft new constitution making subsection (2) subject to the provisions of subsection (1), this ambiguity may result in a constitutional/legal impasse.

4. Access to information Information is the raw material for the emerging knowledge economy. Public information, in particular, is part of the common heritage of humanity. Maximizing access to this information promotes justice and the rule of law. It is therefore important that organizations that have the right to publish public information and the government bodies that create or control that information avail it to the public in a form that is accurate, timely and accessible.

Problem Though the constitutionally guaranteed freedom of expression includes the right to receive ideas and information without interference the current constitution does not create any public right to information held by the state.

5. The Place of ICT in the Functions of Government In the new economy, with the technological merger of the computing, media and telecommunications industries, and communications technology has advanced from being merely a conduit for the conveyance of messages, to a technological space where a broader range of social and commercial human interactions take place. There is no longer any synergy to be achieved by thematically aligning ICT with transport in the organization of corporate or government affairs. Problem Section 16 of the current constitution empowers Parliament or the President to establish the offices of Minister of Government and for the appointment of Ministers from among persons elected to the National Assembly. The Constitution does not define the ministerial portfolios that may be established or the number of ministers who may be appointed. The Ministers, along with the President, the Vice-President, the Prime Minister and two Deputy Prime Ministers, comprise the cabinet whose function is to aid and advise the President in the government of Kenya. In the current structure and organization of government, there are 40 ministries, under which the Ministry of Information and Communications is separate and distinct from the Ministry of Transport. The functions of each Ministry are outlined in Presidential Circular No. 1 of 2005.

In the proposed new constitution Article 186 (Respective functions and powers of national and county governments), it is provided that: (1) Except as otherwise provided by this Constitution, the functions and powers of the national government and the county governments, respectively, are as mentioned in the Fourth Schedule. The Fourth Schedule goes on to list 35 functions of the National Government. Number 18 on the list is worded thus: Transport and communications, including, in particular a. road traffic; b. road construction; c. railways; d. marine navigation; e. civil aviation; f. pipelines; g. space travel; h. postal services; i. telecommunications; j. radio and television broadcasting. Under the Schedule, aspects of the old economy (eg road traffic, railways, pipelines, etc) are clustered together with those of the new economy (telecommunications, radio and broadcasting). Neither the main body of the Draft Constitution nor the Schedule bears any express reference to ICT. Problem: Two interpretations may be made of the wording and style of the Fourth Schedule. Firstly, it may be said that for the purposes of executive control, the Schedule prescribes no distinction between transport and communications/ICT. Secondly, it may well be that the Schedule is not a prescription of the number and designation of ministerial portfolios in the government but merely a general statement about what the functions of government and that it imparts no obligation on the executive to bring transport and ICT under one Ministerial docket. If there is one thing that Kenyas new Constitution should not be ambivalent about, it is the proper place of ICT in the affairs of government. This is because ICT continues to be the transformative

driving force in the emerging information society and the information economy. Kenyas own Vision 2030, which is the national development blueprint for steering the country into economic prosperity for the next twenty years, seeks to leverage on ICT as a stimulus for economic development.

6. Tribunal 102.(1) There shall be established an Appeals Tribunal for the purpose of arbitrating in cases where disputes arise between the parties under this Act which shall consist of(a) a chairman who shall be a person who holds or has held a judicial office in Kenya or who is an advocate of not less than seven years standing and entitled to practice before any, of the courts of Kenya; and (b) two other members who are persons possessing, in me opinion of me Minister, expert knowledge of me matters likely to come before the Tribunal and who are not in the employment of the Government or me Corporation. (2) The chairman and other members of the Tribunal shall be appointed by the Minister in consultation with the Attorney-General and the provisions set out in the second Schedule shall have effect in relation to the membership, procedure and sittings of the Tribunal. (3) The Minister may from time to time publish in the gazette amend the schedule as he deems fit. (4) The members of the Tribunal shall hold office for a period of three years but shall be eligible for reappointment for one further term of a period not exceeding three years.