New CIPIT Research: An Assessment of the Evolution of Kenya's ICT Law and Policy Framework

An article by CIPIT researchers Dr. Isaac Rutenberg, Douglas Gichuki and Arthur Gwagwa titled: “Historical Antecedents and Paradoxes that Shaped Kenya’s Contemporary Information and Communication Technology Policies” has recently been published in the Harvard Africa Policy Journal available here. In the article, the authors retrace Kenya’s 5 decade long journey from independence to its present ‘Silicon Savannah’ status. Through an analysis of legislative and policy reforms in the area of information and communication technology (ICT), the authors argue that although Kenya has come a long way in introducing liberal market reforms that have immensely benefited the technology sector, policy challenges remain. In particular, the authors note as signs of relapse the passing of certain laws and introduced measures that restrict civil liberties, ostensibly as anti-terrorism measures, as well as to diffuse ethnic tensions.

Between 1963 and 1991, the authors explain how successive Kenyatta and Moi regimes introduced a series of restrictions that curbed media freedom as a means to consolidate political power. The prevalence of partisan reporting led a large number of Kenyans to lose in mainstream media, resulting in the establishment of various underground press outlets. In 1991, owing to both internal and external pressure for reforms, the government adopted a multi-party political system. This paved way for the liberalization of the media and communications sectors. By 1997, the government responded to growing external and internal pressures by repealing articles 52, 53, 54, 57, 58, 66, 67, and 121 of the Kenyan 1969 constitution that hindered freedoms of expression and assembly, and which criminalized the free flow of published or documented information in Kenya.
According the authors, throughout the 1990s, the government viewed ICT with great suspicion, partly due to its fear that computers might cause a loss of state secrets or pose a threat to national security. By the late 1990s, however, the Moi regime was both politically and economically weak and greatly susceptible to external donor pressure for democratization and liberalization of media and the ICT sector. As such in response to donor pressure, the government issued two policy statements. In Sessional Paper No. 2 of 1996, it issued a policy statement regarding the liberalization of the telecommunications sector. The deregulation process was further spelled out in a 1997 Sector paper. The 1998 Kenya Communications Act, which repealed the Kenya Posts and Telecommunications Act, put forth measures to liberalize the telecommunications sector; for instance, by opening up of the telecommunications sector to private enterprises. This move resulted in companies like Vodafone entering the Kenyan market. It also split Kenya Post and Telecommunication into five separate entities, including a fixed-line operator (Telkom), a regulator (the CCK), and an inhouse, policymaking organ (the NCS).
By 2006, Kenya had a robust national ICT policy in place that had as its mission to improve the livelihood of Kenyans by ensuring the availability of accessible, efficient, reliable, and affordable ICT services. It offered the broadest reach on stakeholder involvement in Kenya’s ICT sector, designating roles to various categories of the ICT stakeholders in a way that limits government’s mandate to that of an enabler of policies that are conducive to private sector investment in ICT. It also enabled development partners to support the capacity of building in the areas of ICT in collaboration with the Kenyan government; civil society, meanwhile, was given room to inform ICT policymaking, specifically, concentrating on ICT access, ICT for learning, poverty reduction, and good governance.
The authors note that since the adoption of the 2006 national ICT policy, the Kenyan ICT sector has hugely contributed to the growth of the Kenyan economy. The growth is most noticeable in mobile commerce, with more than two-thirds of the adult population engaging in it, making Kenya the world leader in mobile payments. The ICT impetus has, in part, been supported by the post-independence, marketfriendly policies that have also contributed to overall growth in the private sector. A major strength of the national ICT policy is its organic nature, demonstrated by its responsiveness to current challenges in the context of Kenya’s economic aspirations. This has resulted in the Kenya National ICT Master Plan 2013/14 -2017/18, described as an ambitious undertaking, poised to cement Kenya’s position as Africa’s leading ICT Hub.
At the same time, the authors note that government has enacted laws and relied on old ones to enforce civil obedience and also, ostensibly, to quell terrorism threats. As an example, on December 5, 2013, Kenya’s National Assembly passed two contentious bills: the Kenya Information and Communication (Amendment) Act and the Media Council Act. The enactment of the new media law came amid measures to reinforce government control over the Kenyan media in the wake of the September’s 2013 attack by AlShabaab militants on the Westgate shopping mall in Nairobi. Again in December 2014, President Kenyatta signed into law the Security Laws (Amendment) Act of 2014 amid protests from human rights defenders. The law, among other provisions, allowed admissibility in court of electronic messages and digital material, regardless of whether or not they were in their original form.
According to the authors, Kenya needs to address such policy dissonances in order to ensure a convergence between the values embodied in its progressive ICT sector and national political culture. By doing so, this would ensure the sector facilitates information access to all in line with the United Nations sustainable development goals, which, alongside other basic rights, include the right to access information. For instance, the authors suggest that Kenya could realign media laws with its 2010 bill of rights, which seeks to protect and promote the right to freedom of information and expression, including in the context of modern information technologies.
Overally, by reviewing Kenya’s history in ICT policy formulation, the authors conclude that the country can learn from its past and avoid prospective policy relapses. Through this paper, the authors have provided a comprehensive review of the ICT law landscape, exploring the ongoing impact of policy disonnances to the extent that they are occurring, and have provided recommendations for strengthening the impact of ICT through effective policy.

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