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Kenya Information And Communication Act

The Act Provides For Regulation And Licensing Of ICT Services By Establishing The Communications Authority Of Kenya (CA) As The Sector Regulator To Promote Development And Innovation In ICT.

It Broadly Regulates:

  1. Telecommunication Services,
  2. Radio Communication,
  3. Broadcasting,
  4. Postal & Courier Services,
  5. E-commerce & Cyber Security.
  6. The Universal Service Fund
  7. Fair Competition In The ICT Sector.

This part establishes the COMMUNICATIONS AUTHORITY.

Section 5A protects the Communications Authority ’s independence to ensure it is free from interference by government, politics & commercial interests.
The Authority is to be guided only by

  • a. law;
  • b. national values and principles (Article 10 of the Constitution);
  • c. principles of public service (Article 232 of the Constitution);
  • d. freedom of the expression and media (Article 34 of the Constitution); and,
  • e. policy guidelines issued by the Cabinet Secretary (CS) for ICT.

Management of the Communications Authority is provided for under Sections 6-23 of the Act. Executive authority vests in the Board of Directors led by the Chairperson while day to day management is by the Director General (DG) who is the CEO and his/her staff.

A Board Member must have a Bachelor’s degree in a relevant field and 5 years’ experience in ICT (10 years for the Chairperson).
Board Member and Chairman are disqualified if they ;

  • i) have commercial interests in ICT,
  • ii) hold public office
  • iii) are employed by a Political Party.

Board members are appointed for a term of 3 years (renewable once) using the procedure in Section 6B by a Permanent Selection Panel of Stakeholders & are removed from office is provided under Section 6D.
The DG is competitively appointed by the Board for a 4 year term renewable once.

Telecommunication Services

The Communications Authority under Section 23 should ensure telecommunication services are provided to satisfy public demand, including emergency services & public payphones. It also should:

  • i) protect consumers (both for prices & quality of service (QoS))
  • ii) maintain competition
  • iii) promote research and development; and,
  • iv) encourage private investment.

Communications Authority licenses the telecommunications companies.

 

Regulations

The Communications Authority in consultation with the Cabinet Secretary has power to make regulations for licensing including;

  • i) license fees,
  • ii) operation of telecommunications companies (telco’s),
  • iii) promotion of privacy of telecommunication & registration of subscribers.

Obligation of Telecommunication Companies

Telecommunications companies must

  • i) register all SIM’s under Section 27A,
  • ii) and keep confidential records of registration.
  • iii) The records can be accessed by the CA, Criminal Investigators and Courts for criminal or civil proceedings.

Offences by telecommunication companies

  • i) Operating a telecommunications system/service without a license is therefore an offence under Section 24 (fine of up to Kshs.1 million, or up to five years imprisonment.
  • ii) obtaining service dishonestly with intent to avoid payment (1 million/5 years)
  • iii) interference with the contents of a message, (Kshs. 300,000/3 years)
  • iv) interception and/or disclosure of a message by a telecommunication company, (Kshs. 300,000/3 years) and
  • v) vandalising, damaging, removing or tampering with telecommunication apparatus or telecommunication line. (Kshs.5 million/10 years)

Note that Section 29 which provided for the offence of improper use of a system to send offensive, indecent, obscene annoying or menacing messages was repealed by the High Court in Geoffrey Andare v AG [2016] eKLR.

Radio-Communication

Sections 35 & 36 provide for the licensing of radio stations & apparatus before use.

Types of Licenses

  • i) Commercial licenses are subject to fees and Communication Authority authorisation,
  • ii) Licenses for scientific or research use are free and will be granted routinely.

Regulations

The Cabinet Secretary in consultation with the Communications Authority to issue regulations on radio communication giving:

  • i) license & renewal fees;
  • ii) exams for radio operators;
  • iii) controlling import, manufacture & sale of radio devices;
  • iv) technical requirements of apparatus (to ensure no radio interference)

Offences

  • a). Section 44 creates the offence of unlawful sending of misleading messages ( Kshs. 1 million/5 years).
  • b). Section 45 outlaws deliberate interference with radio communication (Kshs.300,000/1 year).

PART IV (A) – BROADCASTING SERVICES

Section 46A gives the following functions of the Communications Authority in regulating broadcasting:

  • i) promoting diversity in content and broadcasting services;
  • ii) promoting public interest obligations;
  • iii) promoting local content;
  • iv) developing & enforcing broadcasting standards;
  • v) maintaining complaints mechanisms in broadcasting; and,
  • vi) protection of privacy.

Types of Licenses

  • i) Free-to-air radio
  • ii) Free to air television,
  • iii) Subscription radio
  • iv) Subscription television and
  • v) Subscription management;

Section 46C requires all broadcasters to be licensed by Communication Authority failure to which they shall be liable to a fine of up to one million shillings, or imprisonment for up to three years.

Section 46C The section allows Communication Authority to attach conditions such as;

  • i) licensing fees;
  • ii) geographic limitations and
  • iii) to broadcast a minimum of local content.

Section 46D however disqualifies the following form being licensed;

  • i) political parties,
  • ii) bankrupt persons and
  • iii) public/state officers
  • Section 46H establishes the Programme Code. It requires the CA to set and enforce standards for the time and manner of programmes to be broadcast. It also allows broadcasters, through membership to an association supervised by CA, to create & administer their own programming code.

    Regulations

    Regulations on broadcasting can be made by the Cabinet Secretary, in consultation with the Communications Authority.

    Complaints by Audience

    Section 46L each broadcaster is required to operate a complaints procedure for persons aggrieved by any broadcast.

    Once such procedure is exhausted without remedy, an appeal may be proffered to the Communications Authority and further appeal may lie to the Communications and Multimedia Appeals Tribunal.

  •  

Postal systems and services in Kenya must be licensed under this Part. The Communications Authority is required to:

  • i) ensure efficient & affordable postal services to meet public demand
  • ii) promote competition
  • iii) expand and develop postal services as per international standards.

Types of Licenses

  • a. Postal service providers or
  • b. Private postal service providers.

Section 52 statutory conditions of license include;

  • i) the provision of courier services to any person who requests for such services where available;
  • ii) prominent display of tariffs charged;
  • iii) notification to the Communications Authority of tariff changes; and, reporting of audited financial statements.

 

Public postal licensee are in addition required to;

  • i) give financial services like money orders, postal orders, postal cheques, collection of bills,
  • ii) savings service,
  • iii) subscription to newspapers and periodicals and
  • iv) any other approved service.

Regulations

Regulations are made by CA under this Part to deal with:

  • i) disposal of undelivered postal articles;
  • ii) compensation for the loss of or damage to any postal article;
  • iii) money orders; and,
  • iv) acceptance of cash-on-delivery postal articles.

Offences

  • i) operating without licence (Kshs.200,000/1 year);
  • ii) damaging letter box and/or postal installations (Kshs.100,000/2 years);
  • iii) unlawful interference or disclosure of postal articles (Kshs. 200,000/2 years); and,
  • iv) transmitting offensive material (Kshs. 300,000/3 years).

This part provides for licensing procedures.

It allows for an (at least) 30 day gazettement period during which the public can comment/object to proposed licences. The Communications Authority must consider these inputs in making the licensing decision.

Section 79 requires written communication of Communications Authority decision to an applicant and allows him to appeal to the Communications and Multimedia Appeals Tribunal.

Section 83A enforces license conditions by providing a Kshs 500,000/- penalty for noncompliance with conditions

PART VI - A – ELECTRONIC TRANSACTIONS & CYBER SECURITY
Section 83B states that provisions on electronic transactions do not apply to writing or signatures required by law in making wills; negotiable instruments; &/or documents of title.

Functions of communications Authority

The Communications Authority is in charge of promoting e-commerce by ensuring;

  • i) authenticity,
  • ii) reliability,
  • iii) integrity &
  • iv)public confidence

in electronic signatures, electronic records, writing and with removing e-commerce barriers.

Communications Authority is also required to manage critical internet resources and develop a cyber-security framework.

Licenses

A license is required under Section 83D to;

  • i) operate an electronic certification system to administer a sub-domain in the Kenya country top level domain (.ke ccTLD).

Recognition of Electronic Records

Section 83G provides for legal recognition of electronic records if it can be assured that they are accessible for future reference and they are of high integrity.

Electronic contracts

Electronic contracts can be made under Section 83J.

This allows valid contracts by means of electronic messages and also signing of messages & documents using legal advanced electronic signatures under the relevant regulations. Government agencies must also use electronic records and signatures.

Offences

  • i) Section. 83U - unauthorised access to designated protected systems;
  • ii) Section. 83Z - unauthorised disclosure of passwords and access codes;
  • iii) Section. 84A Unlawful possession of devices and data; and
  • iv) Section. 84B - electronic fraud.

PART VI-B – UNIVERSAL SERVICE FUND (USF)

Section 84J establishes the Universal Service Fund to support widespread access to ICT in Kenya, The fund is to support capacity building and promote innovation in ICT.

The Universal Service Fund is funded from;

  • i) a universal service levy charged by the Communications Authority on licensees.
  • ii) parliamentary disbursements,
  • iii) investments, and
  • iv) any gifts, or grants.

Section 84L , Anyone can apply for a loan or grant from the Universal Service Fund.

Regulations

Regulations on the USF are made under Section 84P on;

  • i) the amount of the levy;
  • ii) operations of the USF and
  • iii) mechanisms for accessing the monies.

PART VI-C – FAIR COMPETITION AND EQUAL TREATMENT

This part provides for ex-ante (before the fact) regulation of competition in ICT.

The Communications Authority is supposed to promote develop and enforce fair competition and equality of treatment among telecommunication companies.

Section 84Q generally prohibits; anti-competitive behaviour, that is, licensees must not engage in activities, which have, intend to or are likely to unfairly prevent, restrict or distort competition.

Unfair Competition

Section 84S states that unfair competition includes:

  • i) abuse of dominance by a licensee,
  • ii) restrictive trade practices such as:
    • a. Price fixing
    • b. Limiting production
    • c. Market sharing
    • d. Applying dissimilar conditions to equivalent transactions
    • e. Contracts terms with no connection to the subject of contract
  • iii) any other anti-competitive practice

Power to Investigate

The Communications Authority can use powers under Section 84T to investigate any licensee, either by itself or on receiving complaints, for breach of fair competition or equal access.

It must however notify in writing that it is investigating a telecommunications company and explain reasons for suspicion and any information needed from the telco.

The licensee is then allowed to make its case to the Communications Authority within 30 days.

Penalties for offences

If found guilty by the Communications Authority, it can order the telecommunications company to:

  • i) stop the unfair competition;
  • ii) pay a fine of up to 10% its annual gross turnover of the preceding year,
  • iii) nullify anti-competitive contracts, or,
  • iv) impose any other lawful remedy

Appeals

Anyone can appeal to the Communications and Multimedia Appeals Tribunal from a decision of Communications Authority.

Regulations on Competition

The Communications Authority also creates regulations on competition.

Section 84W(4) allows the Communications Authority declare a Telecommunications Company dominant after considering (for example) whether it has market share of more than 50% and whether it has significant market power. If it is declared dominant, the firm must file with Communications Authority,

  • i) tariffs,
  • ii) rates and
  • iii) terms and conditions of interconnection with Communications Authority.

SECOND SCHEDULE: THE APPEALS TRIBUNAL [Under Section 102.]

Section 102 as read with the Second Schedule establishes the Appeals Tribunal to arbitrate disputes between the parties under this Act.

It consists of;

  • i) a chairman with 7 years’ experience as an advocate or judicial officer,
  • ii) 4 members; two of whom are persons judged by the Cabinet Secretary to be experts on relevant matters and two of whom are nominated by Media Council of Kenya.

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