Q1 2015 Legal Writing and Drafting

Legislative Drafting 

During the period of the monopoly of the new reformed Telcom Kenya (previously known as Kenya Posts & Telecommunication Corporation) in the telecommunication sector, an applicant for a private telephone connection was subjected to very rigid procedural rules. One was required to disclose, amongst others, his personal details such as postal and physical addresses and their National Identification Number.

Towards the end of the 1990's the telecommunications sector was liberalized. Like in most other sectors the consequence of this was to open room for other players and competitors. It would appear that there were no adequate preparations for handling the plethora of activities that have been witnessed in the sector in the recent past. Several companies are now fighting for shares in the mobile phone industry. It is estimated that there are close to 18 million mobile phone subscribers in the country.

While the focus of the Government has been on the licensing and regulation of the sector's market players, little attention has been paid to the users of the services and products of the mobile phone Industry. There have been cases of criminals buying subscriber module (SIM) cards and then employing them in executing criminal activities. Phones are now used in aid of child abductors/kidnappers in extorting money from their targets.

Cases of ordinary individuals using temporary lines and SIM cards to make anonymous calls or send offending text messages using short message services (SMS) to abuse or threaten their enemies are still rampant. Mobile phones are also reportedly used to aid cheating by candidates in examinations.

Questions have emerged on the issue of who could own a mobile telephone line and whether some restrictions ought to be imposed on the users. Consequently the 2015 regulations on registration of SIM cards have been formulated.

(a)Draft salient points of the Government Policy to give effect to the regulations. (5 marks)

Policy Document

Memorandum

In Kenya, the telecommunications industry was liberalized. As a result of this, the government took on a limited role of licensing. This worked well as the government licensed private persons to offer services. Times have changed and the tele-communications industry now boosts of 18 million subscribers. As an emerging issue, there have been many reported incidents of the mobile phone subscribers employing the devices to criminal activities and vices. As such the licensing law of the government cannot stand and a gap has developed. The state needs to regulate the use of a mobile phone and SIM cards.

The policy will therefore seek to provide for;

a)      What the main principles of law to bring out

b)      Determine whether the legislation will be harmonious with the rest of the laws

c)      The establishment of administrative structures

d)     Costs of development and implementing the new legislation

e)      Public participation

Background

In Kenya, the communication laws were liberalized and private stakeholders were allowed to offer services. The government took on the role of licensing authority as such the law has been caught up in the doctrine of lag and appropriate legislative intervention is required.

Legal and Policy context

In Kenya, communication is currently governed by the Constitution and the Kenya Information and Communication Act. Kenyan citizens have the right of expression which entails the right to communicate. The KIC Act licenses the mobile phone service providers.

Justification of the Policy

The Constitution and the Act have been in operation for some time now. However, the industry has immensely grown. It boosts of 18 million mobile phone subscribers in a country of a population of about 45 million. As such, some have taken advantage of this in negative ways. There have been reported incidents of people using this SIM cards for criminal purposes. This includes but is not limited to;

a)      Sending offensive and threatening messages

b)      Exam cheating

c)      Extortion of money

Current Status

The current law does not regulate who should own a mobile phone and how and when they should use or can use it.

Goals and Objectives

a)      To regulate the use of mobile phone subscribers

Scope of the policy

This policy will to apply to telecommunication service provides, subscribers and relevant government authorities.

Policy Guidelines

a)      Cognizance of the right to expression

b)      Cognizance of the interrelated nature of the telecommunications industry with other industries such as finance

c)      Cognizance of criminal incidents through mobile phones

 Methodology

The methods applicable to this policy are;

a)      Desk research

b)      Public participation of the relevant stakeholders

Specific provisions

a)      Who can own a mobile phone

b)      How to use the mobile phone

c)      How to not use a mobile phone

d)     Registration of ownership of a SIM card

e)      Rights and duties of an owner of a SIM card

f)       Enforcement of this rights and duties

g)      Offences

Policy Implementation mechanisms

This policy may be implemented by the Communications Authority of Kenya.

Policy recommendations

The use of a mobile phone currently is unfettered. Such that people can anonymously use lines to commit crimes and may not be traced. As such this policy recommends that;

a)      Everyone who owns a mobile phone must be registered

b)      Legislation that governs use of a mobile phone, rights and duties of SIM card owners ,enforcement of these rights and duties and create offences punishable by law for the improper use of SIM cards

(b)Prepare appropriate legislative drafting instructions. (3 marks)

The Kenyan government intends to draft a bill which will regulate the use of a SIM card. In the regulation of SIM cards the drafter should pay due attention rights and duties of the parties, the relevant stakeholders and incidental issues. This bill intends to curb the menace of using a mobile phone to commit criminal activities. The current legislation only licenses the service providers but there is need for governmental supervision as such draft a bill for presentation before parliament.

(c)Draft a Bill for introduction in Parliament, with due consideration of rights and obligations, supervision, penalties and transitional issues. (7 marks)

ARRANGEMENT OF CLAUSES

Clauses

PART 1 PRELIMINARY

1.      Short title

2.      Interpretation

PART 2-REGISTRATION

3.      Registration of SIM cards

4.      Sale of Sim Cards

PART 3-RIGHTS AND DUTIES

5.      Data Privacy

PART 4-SUPERVISION

6.      Supervision

PART 5-PENALTIES

7.      Offences

PART 6- TRANSITIONAL PROVISIONS

8.       

REGISTRATION OF SIM CARDS ACT 2015

A Bill for

An Act of Parliament to provide for the registration of SIM card subscribers, rights and duties of SIM card subscribers and for connected purposes

ENACTED by Parliament of Kenya as follows-

PART 1- PRELIMINARY

1.      This Act may be cited as he Registration of SIM Cards Act, 2015
2.      In this Act, unless the context otherwise requires; ‘Mobile network operators’…… ‘Subscribers’………….. ‘Court’……………. ‘Suspicious Activities’…………. ‘Communications Authority of Kenya’………………… ‘SIM card’…………………	Interpretations

PART 2-REGISTRATION

3.      (a) Mobile network operators shall maintain a register its subscribers and maintain a directory thereof. (b) The directory under sub-section (a) shall contain;                                      i.            The SIM card serial number;                                    ii.            Identification Card number;                                  iii.            Mobile phone number; and                                  iv.            Address of subscriber. (c) Any change in the information under sub-section (a) shall be registered with the company in 10 days.

Registration

4.      (1)Every seller of SIM cards shall cause the subscriber to provide; (a) copy of identification card number; and (b) Address of subscriber. (2) Every SIM card seller shall submit the information under subsection (1) to the mobile network operator within 1 month from sale of Sim card.

PART 3-RIGHTS AND DUTIES

5.      Every communication contained in the SIM card of each subscriber shall be regarded as confidential information unless; (a) The subscriber waives it; (b) A court orders disclosure; (c) such SIM card is used in the commission or furtherance of a crime

Confidentiality

PART 4- SUPERVISION

6.      All mobile network operators shall provide bi-annual reports of suspicious activities to the Communications Authority of Kenya

PART 5- PENALTIES

7.      The failure by a mobile network operator to maintain a register of subscribers under section 3 shall constitute an offence liable to a fine of 300,000/=. 8.      The failure of a SIM card seller to register information under section 4 shall constitute an offence liable to a fine of 100,000/= or imprisonment of up to 6 months; or both.

Offences

PART 6- TRANSITIONAL PROVISIONS

9.      All existing subscribers shall register their SIM cards within 6 months from the operation of this Act.

LEGISLATIVE DRAFTING QUESTIONS

Q1.The Kenyan Government has decided to establish a corporation to establish a corporation to be known as the Nuclear Atomic Commission. The Commission’s primary mandate shall be to prepare Kenya for the production of nuclear energy and to manage any such nuclear plants. The commission must have between three and five members, including the chairperson. The members must be Kenyan citizens and must be qualified in science-related fields. At least one must be a lawyer to provide guidance on legal matters.

You are a parliamentary counsel in the Drafting Department. Prepare the draft Bill establishing the commission. [15 marks]

ARRANGEMENT OF CLAUSES

Clauses

PART - PRELIMINARY

1.      Short title

2.      Interpretation

PART 2-ESTABLISHMENT OF NUCLEAR ATOMIC COMMISSION

3.      Establishment of the Nuclear Atomic Commission

4.      Composition

5.      Functions

6.      Powers

PART 3-ADMINISTRATION

7.      Secretary to the Commission

 PART 4-FINANCIAL PROVISIONS

8.      Funds and Resources

PART 5- MISCELLANEOUS

9.      Offences

10.  Regulations

FIRST SCHEDULE

1.      Tenure of the members

2.      Vacation from office

A Bill for

An Act of Parliament establishing the Nuclear Atomic Commission, to provide for the powers and functions of the Commission and for connected purposes

ENACTED by Parliament of Kenya as follows-

PART 1- PRELIMINARY

1.      This Act may be cited as the Nuclear Atomic Commission Act, 2017	Short Title
2.      In this Act, unless the context otherwise requires;  ‘Nuclear science’ is the study of the atomic world; ‘Commission’ refers to the Nuclear Atomic Commission established under section 3; ‘Chairperson’ means the chairperson established under section 4(1)(a); ‘Secretary’ means the Secretary to the Commission established under section 7; ‘Cabinet secretary’ means the cabinet secretary responsible for   Energy; ‘Nuclear energy’ means the production of heat through fission and fusion of atoms; ‘fission’ means the splitting of something into two or more parts; ‘fusion’ means the combination of two or more things; ‘Nuclear plant’ means thermal power station in which the heat source is a nuclear reactor; and ‘Nuclear Production Areas’ means geographical location that the cabinet secretary has gazetted as nuclear production areas.	Interpretation

PART 2- ESTABLISHMENT OF NUCLEAR ATOMIC COMMISSION

3 (1). There is established a Commission to be known as the Nuclear Atomic Commission.       (2). The Commission shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of: a)               Suing and being sued; b)               Acquiring, holding, charging and disposing off property; c)               Borrowing and lending; and d)              Doing or performing all such other things or acts as may legally be done or performed by a body corporate for the proper discharge of its functions under the Act. (3)(a). The Commission shall be governed by Commissioners. (b). Subject to this Act, all acts and things done in the name of, or on behalf of, the Commission, or with the authority of the Commissioners shall be deemed to have been done by the Commissioner.	Establishment of the commission
4        (1). The Commission shall consist of: a)        A chairperson appointed by the Cabinet Secretary; b)        Three members appointed by the Cabinet Secretary; and c)         One member who shall be an advocate of the High Court of Kenya of not less than five years standing. (2) A person shall not be eligible for appointment under subsection (1) unless such person: a)      Is a citizen of Kenya; b)      Has at least five years’ experience in science related fields. c)      Meets the requirements under Chapter Six of the Constitution; and d)     In appointing members of the Commission under subsection(1) the Cabinet secretary shall take into account the gender, regional and other diversities of the people of Kenya. 5. The Commission shall have all powers necessary for the proper performance of its functions under this Act, this includes but is not limited to- a)      Control, supervise and administer the assets of the Commission in such manner as best promotes the purpose for which the Commission is established; b)      Determine the provisions to be made for capital and recurrent expenditure and for the reserves of the Commission; c)      Receive any grants, gifts, donations or endowments and make legitimate disbursements therefrom; d)     Open such banking accounts for its funds as may be necessary; e)      Invest any funds of the Commission not immediately required for its purposes; and f)       Undertake any activity necessary for the fulfilment of any of its functions. 6 (1). The functions of the Commission shall be to: a)      Make guidelines for the production of nuclear energy; b)      Identify nuclear production areas; c)      Establish nuclear plants; d)     Manage nuclear plants; and e)      All other functions incidental and necessary for the proper performance of the Commission under this Act. (2)The First schedule shall apply with respect to conduct of business and affairs of the Commission PART 3-ADMINISTRATION 7(1). There shall be a secretary to the Commission who shall be appointed by the Commission through an open, transparent and competitive process. (2). The secretary to the commission shall; a)Be the accounting officer of the Commission ; b)      Be responsible for the day to day management of the affairs and staff of the Commission; and c)Perform such duties as are prescribed by or under this Act. (3). The terms and conditions of service of secretary to the commission shall be determined by the commission in the instrument of appointment or otherwise in writing from time to time (4)No one shall be eligible for appointment under subsection(1) unless such person- a)Is a Kenyan citizen; b)      Has at least five years’ experience in the field of nuclear energy; c)Has knowledge and experience in policy formulation, administration and management; and d)     Meets the requirements of Chapter Six of the Constitution. PART 4-FINANCIAL PROVISIONS 8(1). The funds and resources of the commission shall comprise of: a)Such fees, monies or assets as may accrue to or vest in the Commission in the course of the exercise of its powers or the performance of its functions under this Act or under any written law; and b)      All monies from any other source provided for or donated or lent to the Commission.     (2). The financial year of the Commission shall be the period of twelve months ending on the thirtieth June in each year.     (3). At least three months before the commencement of each financial year, the Secretary to the Commission shall cause to be prepared estimates of the revenue and expenditure of the Commission for that year.     (4). The secretary to the Commission shall cause to be kept proper books of account of the income, expenditure and assets of the Commission. PART 5- MISCELLANEOUS 9. Failure to keep proper books of account under Section (8) subsection (4) shall constitute an offence liable to a fine of not more than 200,000/=; or imprisonment; or both. 10.  Subject to this Act, The Commission may, upon consultation with the Cabinet Secretary, make regulations for the better carrying into effect of the provisions of this Act. FIRST SCHEDULE 1.The chairperson, secretary to the Commission or a member of the Commission shall, subject to the provisions of this Schedule, hold office for a period of five years, on such terms and conditions as may be specified in the instrument of appointment, but shall be eligible for re-appointment. 2. A member may at any time; a.       Resign by notice in writing to the Cabinet Secretary; b.      Be removed from office by the Cabinet Secretary on recommendation of the Commission if the member:                                                               i.      Has been absent from three consecutive meetings of the Commission without the Commission's permission;                                                             ii.      Is convicted of a criminal offence that amounts to a felony under the laws of Kenya;                                                           iii.      Is incapacitated by prolonged physical or mental illness for a period exceeding six months;                                                           iv.      Is otherwise unfit to hold office. 3. The Commission shall meet not less than four times in every financial year and not more than four months shall lapse between the date of one meeting and the date of the next meeting. 4.The quorum for the conduct of the business of the Commission shall be three members	Composition of commission Powers of the commission Functions of Commission Secretary to the Commission Functions of secretary Eligibility of Secretary Funds of the Commission Financial year Proper books of accounts Tenure Vacation from office