KICTANet submissions have been sent to our engagement partners, policymakers, and policy implementers.
|We submit this memorandum in response to the call for input on the Kenya Information and Communications Amendment Bill 2023. We have included herein a matrix presentation that captures our concerns and highlights our proposals on relevant provisions of each of the Regulations for your review and consideration. We would be glad to provide further input and perspectives on the Regulations, as and when required||27 downloads||Download||119.4 KB|
|ARTICLE 19 and KICTANet present this joint memorandum in response to the call by the Kenya Film Classification Board (KFCB). We have proposed that the Co-regulation Framework and the Guidelines be abolished pending meaningful multi-stakeholder engagement, evidence-based research from Kenya, and legislative amendments to ensure conformity with the constitution.||264 downloads||Download||311.8 KB|
|The Huduma Bill, 2021 is proposing the largest set of changes to the legal framework governing Kenya’s identification system since before independence. If enacted, the Huduma Bill would become the single law anchoring birth and death registration, issuance of identification cards, issuance of passports, and governance of the National Integrated Identity Management System (NIIMS, also referred to as Huduma Namba). As such, the draft legislation, system design, and all other decision points around NIIMS must be considered very carefully, comprehensively, and transparently.||166 downloads||Download||826.8 KB|
|This is a joint memorandum on the Kenya Information and Communications (Broadcasting ) Regulations, 2022; the Kenya Information and Communications (Registration of Telecommunications Service Subscribers) Regulations, 2022; the Kenya Information and Communications (Access and Infrastructure Sharing) regulations; and, the Kenya Information and Communications (Interconnection) Regulations 2022.||335 downloads||Download||415.8 KB|
Stakeholders’ Consultation on the Draft New USF Strategic Plan, USF Principles & Guidelines, and the USF Operating Manual for the period 2022-2026.
We commend CA for aligning the USF strategy to recommendations from both the 2021 Access Gap report as well as the Licensing and Spectrum Sharing Framework for Community Networks3 and recognizing that “The community networks will offer opportunities for capacity building, besides providing centers to serve special interest groups like PWDs, Women, and the Youth. CA, through the support of the USF, needs to further embrace technologies on a micro-scale and small scale solutions in closing the access gaps”. We applaud the decision to include and provide support for the development of community networks within the USF strategy. We also commend the broad-based consultations that resulted in the USF Strategy in line with the constitutional requirements for public participation. In order to maximise their chances for success and their potential impact, we encourage CA to adopt a holistic approach to their support which includes the necessary capacity-building to develop the technical, organisational, and community-building skills needed to grow healthy and vibrant community networks that will deliver meaningful connectivity where it is needed most.
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|KICTANet developed and submitted a memorandum on The Huduma Bill 2021 as part of a coalition of Kenyan civil society organisations with expertise in issues of identification, civil registration, nationality rights, data protection and privacy, minority rights, children’s rights, human rights, and other related issues. The Huduma Bill is proposing the largest set of changes to the legal framework governing Kenya’s identification system since before independence. If enacted, the Huduma Bill would become the single law anchoring birth and death registration, issuance of identification cards, issuance of passports, and governance of the National Integrated Identity Management System (NIIMS, also referred to as Huduma Namba). As such, the draft legislation, system design, and all other decision points around NIIMS must be considered very carefully, comprehensively, and transparently.||352 downloads||Download||176.4 KB|
|The Kenya ICT Action welcomes the development of legislation for County Printers through The Office of the County Printer Bill, 2021. Of great importance will be the role the offices will play in ensuring citizen participation in governance through the availability of official government documents. In this proposal, KICTANet recommends the inclusion of digital versions of publications by the County Printers. The adoption of digital versions of documents will ensure increased accessibility of the documents to members of the public who may have limited access to physical copies of important documents published by the County Printers. It is our sincere hope that the above recommendation will be included in the law to increase public awareness on public documents through the provision of digital access.||230 downloads||Download||96.1 KB|
|On Wednesday 7 July, 2021, six civil society organisations sent an open letter and memorandum to Garissa Township MP Hon. Aden Duale expressing deep concern over the proposed amendments to the Computer Misuse and Cybercrimes Act (CMCA), 2018 and calling for the immediate withdrawal of the Computer Misuse and Cybercrimes (Amendment) Bill, 2021 in its entirety. If enacted, an outright ban on pornography will be enforceable in Kenya, and the government will possess the power to interfere with access to communications platforms and digital technologies. The Computer Misuse and Cybercrimes (Amendment) Bill, 2021 will also expand illegitimate cyber-harassment and cyber-terrorism provisions in the CMCA, 2018.||317 downloads||Download||577.7 KB|
|On Wednesday 7 July, 2021, six civil society organisations sent an open letter and memorandum to Garissa Township MP Hon. Aden Duale expressing deep concern over the proposed amendments to the Computer Misuse and Cybercrimes Act (CMCA), 2018 and calling for the immediate withdrawal of the Computer Misuse and Cybercrimes (Amendment) Bill, 2021 in its entirety. If enacted, an outright ban on pornography will be enforceable in Kenya, and the government will possess the power to interfere with access to communications platforms and digital technologies. The Computer Misuse and Cybercrimes (Amendment) Bill, 2021 will also expand illegitimate cyber-harassment and cyber-terrorism provisions in the CMCA, 2018.||949 downloads||Download||169.7 KB|
|KICTANet community held a 4 day moderated discussion on it’s mailing list on the Licensing and Shared Spectrum Framework for Community Networks. The responses are archived online on this link https://lists.kictanet.or.ke/pipermail/kictanet/2021-May/subject.html#start under the subject [kictanet] Licensing and Shared Spectrum Framework for Community Networks for Kenya online discussion and [kictanet] Shared Spectrum Framework for Community Networks for Kenya online discussion||230 downloads||Download||115.6 KB|
The Kenya ICT Action Network (KICTAnet) presents this memorandum in response to the call by the Ministry of ICT, Innovation and Youth Affairs through a Taskforce on the development of the Data Protection Regulations for public participation on the Data Protection (General) Regulations, 2021, the Data Protection (Registration of Data Controllers and Data Processors) Regulations, 2021, and the Data Protection (Compliance and Enforcement) Regulations, 2021.
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|The Information Communication Technology (ICT) Practitioners Bill, 2020. KICTANet through this petition seeks to respond to the advertisement by the Clerk of the National Assembly, pursuant to Article 118(1) (b) of the Constitution and Standing Order 123 (7) inviting interested members of the public to submit any representations on the said Information Communication Technology Practitioners Bill, 2020. The Bill seeks to establish a legal framework for the training, registration, licensing, practice and standards of Information Communication Technology (ICT) professionals in Kenya. After intense consultations through the mailing lists kictanet.or.ke, and through social media, KICTANet strongly opposes the Bill for the following reasons: 1. Objective: The Bill does not seek to solve any identified problem. It in fact creates more problems in our society as outlined below with the most critical factor being the risk of loss of employment for the youth and stifling of innovation that will result if the proposed form of regulation of the ICT industry is enforced. It is our position that the level of global innovation that has been seen as a result of the ICT industry can be attributed to the freedom to innovate without boundaries, and that the proposed legislation will be a severe blocker for innovation not just in Kenya but the entire region where Kenya has been at the forefront of delivering innovation. 2. No Policy Backing: Good governance standards require that Bills to enact legislation are informed by an appropriate policy framework. Currently, there is no evidence to show the rationale that informed this Bill. This is the third time the Bill is being introduced and yet once again the proposers of the Bill have failed to show why we need the Bill or the ills it will cure. The challenges meant to be addressed by the bill are adequately covered by available legal avenues through both civil and criminal proceedings in the case of malpractice by a practitioner. Furthermore the ICT industry is so wide that it would be futile to attempt to cluster players in the industry, even users of social media and other tech platforms that are utilised in daily life for processing documents, files and enterprise resource planning (ERP) would need to be registered as practitioners. 3. Public Participation: Players in the ICT sector have had a positive history of consultations with the government since 2005 during development of the Kenya ICT Policy. This ICT Practitioners Bill goes against this spirit as it appears to have been drafted and sponsored by a single person without the robust and required level of public participation that characterises the sector, and demanded by the Constitution. This Bill was developed without input from those affected by it, namely technologists, associations of persons working in ICT related work, civil society, private bodies in the ICT industry, academics working on ICT related issues and the public at large. The Bill therefore is not a legitimate representation of the views of the stakeholders working in the ICT sector. Further it contravenes Article 10 of Kenya’s 2010 Constitution which makes it mandatory for public participation in governance, including policy and law making. 4. Incongruence with other laws and policies: The Bill does not interface with Government policies on social and economic development, movement of labour as well as ICT development. For example, it goes against the National ICT Policy 2020 whose main objectives include: Grow the contribution of ICT to the economy to 10% by 2030, by using ICT as a foundation to the creation of a more robust economy, providing secure income and livelihoods to the citizenry; leverage regional and international cooperation and engagements to ensure that Kenya is able to harness global opportunities; position the country to take advantage of emerging trends such as the shared and gig economy by enhancing our education institutions and the skills of our people, and fostering an innovation and start-up ecosystem that is able to lead on a global scale; and gain global recognition for innovation, efficiency, and quality in public service delivery. Services will be delivered in a manner that ensures we have a prosperous, free, open, and stable society. 5. Impracticality: The contents of the Bill are impractical to implement. This is a demonstration that the Bill drafters lacked a proper understanding of the needs of the sector or a holistic approach to identifying key issues affecting stakeholders, and their views on the solutions to those issues. For example, Section 10 of the Bill on the functions of the proposed institute will be required to approve courses for purposes of registration of ICT Practitioners. Given that ICT courses are always changing and almost every course now has an ICT aspect to it, it will be an almost impossible task to determine what courses one will be required to undertake to be termed as an ICT Practitioner. Further, the section also states that the institute shall administer an examination to determine whether one qualifies to be an ICT Practitioner given that the broad nature of ICT implementing this may prove an impossible task. The Bill has failed to recognise the malleable and evolving nature of ICT with the evolution of new programming languages and innovation on an almost daily basis. 6. Incoherence: The Bill contains many inconsistencies that would make it extremely difficult to implement. At a foundational level, the Bill fails to define unequivocally who an “ICT Practitioner” is. The definition given by the Bill is so broad it captures the entire population. Given that Kenyan Mobile phone penetration is at 100% going by the definition of ICT and ICT Practitioner, majority of the Kenyan population will be classified as ICT Practitioners. 7. Stifling Innovation: The Bill if enacted would stifle innovation in the country. Innovation is the hallmark and driver of ICTs and more so economic growth. The Bill requires innovators who normally come up with solutions such as coders, developers, network engineers, programmers, application developers, mobile phone repairers, and many others to register with an authority before they can innovate and consequently earn from their labour. Innovators need stronger protection for their innovations, access to credit, less regulation, and incentives from the government. Consequently, a more robust intellectual property law regime and policies that promote access to finance for young innovators would be more suitable under the circumstances. 8. Priorities in the ICT sector: As stated above, the ICT sector has a history of consultative policy and legislation making. Stakeholders have identified among others, Digital Taxes Policy Framework, and Data Protection Regulations to support the Data Protection Act as urgent priorities. We urge Parliament to use this legislative opportunity to assist the stakeholders in achieving these urgent priorities as they are paramount to the development of Kenya through ICTs. One critical area that needs urgent attention is the protection of ICT critical infrastructure that will ensure that the current losses of maintenance and replacing expensive infrastructure are reduced through the formulation of a legal framework for assets. 9. Youth and Development: Stakeholders in the ICT sector are as committed as the government in ensuring the use of ICTs to give youth more opportunities to develop themselves and achieve their destiny. Unfortunately, this ICT practitioners Bill does the opposite by creating hurdles in the form of academic requirements, incorporation requirements, and mandatory and annual registration before they can earn a living from ICT-related work. 10. Overrating University/Formal Education: The Bill is completely incognisant of the revolution brought about by ICTs that enables self-learning and other methods of acquiring knowledge. It makes it mandatory for one to acquire a university degree or diploma, suggesting that those are the only paths to education and training. Further, the Bill fails to recognize that there is a large number of people in the ICT sector who are self-taught and have managed to innovate without having gone to a learning institution. This Bill risks discouraging a culture of innovation and may lead to brain drain as people may leave Kenya to go seek opportunities elsewhere, where their talent is appreciated. Some of the best companies ever created such as Microsoft, Apple and Facebook came from people who did not have a university qualification. 11. Global Practices and Policies: ICTs and the Internet are by their very nature global. The ICT practitioners Bill is not anchored on any international best practice or policy. Its effect would be to isolate Kenyan skilled ICT human resources and probably lead to labour migration from the country to other jurisdictions where there is an enabling environment to practice. Further, the bill has no provision in it for bringing in external trainers and consultants and hence damages the industry by working against international knowledge sharing. Also, the Bill creates serious and deep problems with intercompany staff transfers or people in multi-nationals coming in to work on intra-company projects that require external resources. The overall result may be a reduced tax base as people will end up leaving Kenya to seek opportunities in countries that provide conducive environments for them to innovate and create thriving businesses. 12. Multistakeholder Environment: The ICT Sector is not a homogeneous sector such as medicine or engineers. It is a multi-professional sector that comprises professionals from different industries. ICT practitioners include teachers, academia, business, civil society, engineering, and other sectors registered by other institutions. Therefore, it would not be in the best interests of the country to attempt to bring under regulations all these professionals. A better solution would be to develop a conducive environment for these stakeholders to maximise their potential and contribute to nation-building. This Bill does not do that. 13. Standards prescription by a non-ICT Standard body: ICT experts and users in Kenya and globally use, implement or create products and services that are built on global technical standards. These technical standards are built on guiding principles, such as end-to-end interoperability, that ensure continued evolution and permissionless innovation. A non-ICT-standards-making body, cannot propose policy or law that defines who is a practitioner of a resource, that knows no boundaries, and is designed to empower everyone to be creative and innovative. It is evident that whoever drafted the ICT Practitioners Bill did not have the interest of the public at heart. Our humble prayer is that the Bill is withdrawn in its entirety as it shall create unnecessary problems in the space of innovation and economic development through ICTs.||499 downloads||Download||235.5 KB|
Date: 5th December 2020.
CWG-Internet: Online Open Consultation (December 2020)
The ITU Council Working Group on International Internet-related Public Policy Issues (CWG-Internet) is holding an open consultation (online and physical) on the following topic:
Expanding Internet Connectivity
CWG-Internet invites all stakeholders to submit contributions on international internet-related public policy issues relating to expanding internet connectivity, focusing on the following questions:
1. What are the challenges and opportunities for expanding Internet connectivity, particularly to remote and under-served areas?
2. What are the roles of governments and non-government actors in overcoming these challenges?Role of Government
3. How can small/community/non-profit operators help in promoting the increase of Internet connectivity?
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|As of 23 April 2020, Kenya had 320 confirmed cases of Covid-19 virus, the highest within the East African Community with around 848 cases. The government has taken steps to contain the spread of the pandemic including among others, implementing a nation-wide curfew, mandatory quarantine, contacts tracing and recommending hand washing and sanitizing, mask wearing and social distancing measures. Following the announcement of the pandemic, the Judiciary and the National Council on the Administration of Justice (NCAJ) took measures to scale down the operations of courts across the country, and made recommendations to safeguard the health of court users and court officials. However, these drastic measures have resulted in calls to balance the need to ensure access to justice, service delivery and the health and safety measures. Consequently, the NCAJ has seen it fit to find ways to upscale court operations and quickly pivot them by fast-tracking the use of technology to ensure continued access to justice. In the past month, the NCAJ and various courts across the country have demonstrated their versatility, resilience, innovation and ability to leverage on video conferencing applications to hold meetings and deliver judgements and rulings respectively. These efforts to adapt are indeed commendable and KICTAnet applauds the effort. KICTAnet further welcomes the recent announcement by the Chief Justice that Microsoft has donated its Microsoft Teams video conferencing application for use by the Judiciary in the coming weeks. The rapid adoption of video conferencing technologies are not without its fair share of challenges. Courts still need to address the legal issues surrounding technology usage, capacity of court users to understand and use of the technologies, the application features and the new procedures required. Further, the financial resources to ensure the availability of functional equipment, reliable internet connectivity and technical support will be key. A critical challenge in our view, is the lack of clear guidelines on etiquette and procedures when conducting court sessions through video conferencing. It is worth noting that while virtual court sessions are similar to open court proceedings, it is not enough to translate open court procedures to virtual sessions.  EAC CommonHealth Data Map https://covidcheck.eac.int/  Statement on justice sector operations in the wake of the COVID-19 pandemic http://ncaj.go.ke/statement-on-justice-sector-operations-in-the-wake-of-the-covid-19-pandemic/||388 downloads||Download||262.3 KB|
On the 3rd March 2020, the Communications Authority of Kenya (CA) invited all stakeholders to submit their comments with respect to the Draft Dynamic Spectrum Access Framework for Authorisation of the Use of TV White Spaces. The following organizations are herewith submitting their comments with the common objective to help create a quality and affordable telecommunications service to all Kenyans, especially those in rural and underserved areas :
We welcome the fact that CA is moving forward with TVWS regulation and further that dynamic spectrum management may be considered for other bands in the future. Dynamic spectrum management has the potential to directly address the challenge of underutilised spectrum in rural areas.
We would like to urge CA to move forward with all reasonable haste in implementing TVWS regulation. The current pandemic has brought home to the world how important affordable access to communication when people’s movements are restricted. TVWS technology can enable network operators to offer innovative and affordable connectivity in underserved regions.
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|ICTs are already playing a critical role in the management of the COVID-19 situation through information dissemination and availing tools that support business continuity, education and commerce just to mention a few. KICTAnet notes that it is important to support the continuity of activities such as learning, business and civic activities, and citizens' access to information. Pursuant to the notice requesting for public input into the COVID-19 Situation, and after intense consultation with our stakeholders, and as an ICT community, we acknowledge that there are many suggestions necessary. However, our interest is in how ICTs can be utilized in the 3 thematic areas highlighted by the Senate COVID19 Adhoc Committee.||536 downloads||Download||85.7 KB|
ARTICLE 19 Eastern Africa (or ARTICLE 19 EA ) and the Kenya ICT Action Network (or KICTANet ) present this memorandum in response to the call for public participation on the said Data Protection (Civil Registration) Regulations, 2020 currently being considered by the Principal Secretary, State Department of Information Communication and Technologies (or ICT ) and Innovation.
The following is a summary of our key recommendations:
2. The Data Protection Act (2019) cannot be used to give statutory effect to this civil registration system (or CRS ) as that is not the objective of the Act. CRSs provide the ‘foundation for national identity management systems’1 and are inherently linked to the generation, collection and utilisation of vital statistics which inform a nation’s development agenda, amongst other core functions. In Kenya, national identity management systems are provided for under the Registration of Persons Act (CAP 107) and the Citizenship and Immigration Act, 2011, the Refugees Act all of which legislate on CRS related issues, including national identity and the National Integrated Identity Management System (or NIIMS ) in Kenya.
3. The Regulations do not comply with the Data Protection Act (2019). In particular:
4. The Regulations should provide explicit ( technical, personnel and procedural ) safeguards to ensure that personal information is accorded the highest safety and security, management and governance protection.
5. In conjunction with civil society and other stakeholders, the Ministry should develop ‘appropriate and comprehensive regulatory frameworks’ which adhere to the High Court’s orders in Consolidated Petitions No. 56, 58 and 59 (2019) and which pay proper homage to the letter and the spirit of the Data Protection Act (2019) and international standards which Kenya is bound by.
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ARTICLE 19 Eastern Africa (or ARTICLE 19 EA ) and the Kenya ICT Action Network (or KICTANet ) present this memorandum in response to the call for public participation on the said Registration of Persons (National Integrated Identity Management System) Regulations, 2020 currently being considered by the Cabinet Secretary, Ministry of Interior, and Coordination of National Government.
The following is a summary of our key recommendations:
1. The civil registration and identity management framework should be enacted through a stand-alone Act of Parliament. This should be subjected to (bicameral) legislative oversight and effective public participation. Notably, regulations, which generally provide guidelines of practice, cannot be used to regulate and create substantive systems which have implications on the effective and proper functioning of government, and which directly affect individuals’ identity.
2. The Regulations exceed the ambit of the Registration of Persons Act (CAP 107) and should not provide for the registration of infants and minors.
3. The Registration of Persons Act (CAP 107) should be amended to provide for a specific government entity responsible for the NIIMS, other than the Principal Secretary (whose docket is not named in either Act or the Regulations). All the functions relating to the registration of persons should be with the Principal Registrar and staff under section 4 (and Schedule) of the Registration of Persons Act (CAP 107).
4. The regulations should provide explicit ( technical, personnel and procedural ) safeguards to ensure that registration information is accorded the highest safety and security, management and governance protection. This will ensure that trust is maintained in the digital ecosystem, by providing sufficient protection against abuse by authorised persons (public organs and private entities), independent
5. The regulations should provide explicit ( technical, personnel and procedural ) safeguards for the collection, processing, use, and transfer of NIIMS data relating to the registration of persons in line with the requirements under the Data Protection Act, 2019.
6. In conjunction with civil society and other stakeholders, the Ministry should develop ‘appropriate and comprehensive regulatory frameworks’ which adhere to the High Court’s orders in Consolidated Petitions No. 56, 58 and 59 (2019) and which pay appropriate homage to the Data Protection Act (2019). This will ensure that the Regulations adhere to and respect fundamental rights of freedom of expression (or FOE ), the right to information (or RTI ), the right to privacy in the Constitution of Kenya, 2010 and international law.
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KICTANet’s submission to the intersessional meeting, 2-4 December 2019, New York UN Headquarters: 405 East 42nd Street, New York, NY, 10017 EU Delegation: 666 3rd Ave, New York, NY 10017
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Submissions done one 11th November 2019 at the National Assembly
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Submission done one 11th November 2019 at the National Assembly Chambers
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|We wish to submit the following recommendations for amendment of the Data Protection Bill. While overall we are highly supportive and enthusiastic as to the positive impact of the Bill, there are several provisions that if left as is could negatively impact innovation in the technology and finance sectors, and hinder both competition and consumer rights. Generally, it is a good bill that is well improved compared to previous versions. For example, the object of the proposed law is positive as opposed to previous versions that included exemptions in the objects. There are also fewer limitations on the right to privacy. There could be further sharpness on engagement of data subjects with data controllers and processors. There are several clauses that propose response to the the data subject “within a reasonable period”. While the rationale behind this is to ensure that data processors can continue with their core business even where there are numerous requests, there should be a better balance between business interests and data subject right to information.||243 downloads||Download||444.8 KB|
|The Finance Bill 2019 currently being considered by the Finance Committee of the National Assembly needs significant revisions to ensure that its protections are in harmony with those of fundamental rights of freedom of expression (or FOE) and the right to information (or RTI) as recognized by the Constitution of Kenya and international law. The current draft fails to recognise that the Kenyan jurisdiction has a nascent digital economy whose dynamism will be stifled via the imposition of onerous taxation burdens which are not adequate to protect freedom of expression and no provisions on ensuring that the law is consistent with the Access to Information Act and the Constitution. Instructively, Uganda’s failed imposition of Over the To (or OTT) taxation not only led to declining internet penetration rates, but also denied existing, vulnerable and marginalised communities their rights to access information and freely express themselves. Recommendations: 1. The Finance Committee of the National Assembly should re-define its definition of a ‘digital marketplace’ which is vague and may impact FOE and RTI disproportionately. 2. The Finance Committee of the National Assembly should postpone the imposition of taxation on Kenya’s nascent digital economy1 until a thorough cost-benefit assessment has been conducted and takes account of the difficulty latent in determining economic presence in dynamic digital transactions.||240 downloads||Download||67 KB|
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Director Programmes & Standards, ICT Authority
Telposta Towers, 12th Floor, Kenyatta Avenue,
P.O Box 27150-00100 Nairobi.
21 April 2015
Kenya ICT Action Network (KICTANet)’s input into the proposed Critical Infrastructure Bill
ICT is a tool that is critical for operations and hence requires specialized attention: availability, integrity, and confidentiality.
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