Fix the KCA Law

Last month something very interesting happened, the realization by the ICT community that the there was something amiss with the Kenya Communication Amendment (KCA) of 2008 Bill that was passed into law and became an Act December last year . The media fraternity who were accused of trying to hijack the Bill were up in arms using all tricks in the book to stop the Bill’s ascension to law and wanted it booted out of parliament for clauses that they baptized “draconian”.

While this was happening, the ICT community sat pretty and became spectators as the duel between the Government and the Media industry intensified and at some point even cheering the Government to go ahead and pass the bill into law. The wishes of the IT industry were heard and rewarded with the Kenya Communications Amendment Act of 2008 which sort to legislate the entire communication sector including IT, Telecoms, Media and Postal sectors.

Now, like the Media sections of the law, the IT section had some very dangerous clauses that had been proposed initially and other serious weaknesses on e-Transactions. It was sort of agreed in one of the stakeholders meetings that the IT sector should support the Bill its flaws notwithstanding. Reason; the law making process was long and winding, and therefore it would be a major blow to the industry should the KCA Bill be thrown out of parliament. It had already taken two solid years to get the Bill on the parliamentary calendar.

So the compromise position was that the Bill should be allowed to go through and then work towards amending the weak areas through ministerial regulations, a practice that is allowed in law. In fact, it was agreed that since there was an existing draft e-Transaction Bill, all the articles on Electronic Commerce in the KCA would be expunged and form a new Bill to be pushed through parliament. This is why most of the IT players and advocates voted with the Government when it came to the KCA Act. But it appears that the proposed amendments and regulations will require time to be in place, meanwhile, the law is in place and is already becoming a challenge to the industry.

The industry was in shock last month when they realized that the Kenya Information Centre (KENIC), a public-private-partnership entity that has been managing the country’s ccTLD was operating illegally, sort of. According to the new law, KENIC needs to be registered by the country’s communications regulator, Communication Commission of Kenya (CCK) for them to continue managing the .KE name space. The law has also opened up competition on the second level domain name registration, an area that until now was a reserve of KENIC.

This is a classic case where global best practices and local laws clash. KENIC is the only body recognized by the International Council for Assigned Names and Numbers (ICANN) as the bona fide managers of the .KE. The law did not take cognizance of international arrangements neither did it provide explicit guidance on how to manage the introduced competition. So as the stakeholders pull in different direction and taking different positions on this, it is paramount that the holes in the KCA Act are sealed urgently.

As agreed, the law needs to be placed under a microscope again, with all stakeholders alert and engage in panel beating it to acceptable conditions. Otherwise what we are seeing now, is just the tip of an iceberg.