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.