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Wednesday, September 23, 2020

Airtel Kenya Raises Concerns on Statute Law Ammendments

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Airtel Networks Kenya limited is the second largest network in Kenya and we are therefore deeply concerned with the recent developments happening in regard to the Laws and regulations governing the ICT space in Kenya. The Statute Law (Miscellaneous Amendments) bill 2015 published as Kenya Gazette Supplement no. 164 (National Assembly Bills No. 57) contains proposals to amend the Kenya Information and Communications Act, 1998 (No2 of 1998) (KICA) with far reaching consequences to the telecoms sector.
We wish to highlight our concerns in regard to this bill as set out below:

a)     The company is concerned that in developing the Bill, due process was not followed. Airtel Kenya as a key stakeholder was not consulted in the process of making these amendments to the KICA. The sector regulator – the Communication Authority of Kenya (CA) and the responsible Cabinet Secretary (CS) in charge of the Ministry of Information and Communications Technology (MoICT) have according to statements in the media claimed that the proposed amendments did not originate from them. These claims are very worrying given the far reaching ramifications of the proposed changes in the law.

a)     We note with concern that the CA and the CS-MoICT are not aware of the changes which include the deletion of Section 84W (4) of Kenya Information and Communications (Amendment) Act which currently mandates the CA to declare by notice in the Gazette, an institution to be a “dominant telecommunications service provider” for the purposes of this Act. The definition of dominance was very recently reviewed and revised as part of the amendments to the Kenya Information and Communications (Amendment) Act in 2013. By taking away this power from CA, CA will no longer be in a position to deal with Ex-Ante regulation. This deletion further takes away the power for CA to act on complaints by small operators or interested parties against a dominant operator and implement Ex-Ante remedies on dominant operators. This is against international best practice and may kill competition and lead to a monopoly.

The Constitution of Kenya article 118 provides for consultation among stakeholders in the legislative and other business of Parliament and its committees. This process includes requirements for regulation-making authorities to undertake appropriate consultation before making statutory instruments and in particular where the proposed statutory instrument is likely to have a direct, or a substantial indirect effect on business; or restrict competition.
We believe that this violation of due process will grossly undermine the Independence of CA contrary to section 5A of The Kenya Information and Communications (Amendment) Act, 2013 which stipulates that the CA be independent and free of control by government, political or commercial interests in the exercise of its powers and in the performance of its functions.

The Company wants the concerned parties to safeguard the ICT sector from any further disarray.

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