Bill out to curtail regulator’s independence, warns Wangusi

Communications Authority of Kenya director- general Francis Wangusi. PHOTO | FILE 

By OKUTTAH MARK, mokuttah@ke.nationmedia.com

The Communications Authority of Kenya (CA) has warned that its independence is at stake following proposed changes to the law to limit its control of dominant telecom firms.

Among the key changes are that the CA will be required to consult the Ministry of Information Cabinet Secretary (CS) before declaring a telecommunication or broadcasting services provider dominant.

This means that if the CS objects to the regulator’s ruling then no such declaration can be made.

The Bill also suggests that the criteria for determining dominance be aligned to the Competition Act, which requires the regulator to show proof of abuse of dominance before declaring an operator dominant.

This, CA says, will make it difficult to declare any firm dominant. The KICA Act gives the CA power to automatically declare any firm that has 50 per cent or more market share dominant.

On the other hand, the Competition Act requires the line regulator to show prove of abuse before declaring an operator dominant.

The regulator says this provision has in the last four years made it difficult for it to punish those abusing dominance rules in various market segments.

READ: CA moves to hire market dominance consultant

Francis Wangusi, the CA director-general, said the proposed amendments will not only interfere with the authority’s independence but will also slow down the development and maturity of the communications industry in Kenya.

“The authority is not in agreement with the proposed amendments and strongly recommends that they be done away with since they will greatly hinder the enabling environment for policy, legal and regulatory constructs in the ICT sector,” said Mr Wangusi in a statement.

“The proposals undermine efforts of the authority, which is the independent sector regulator as envisaged under Article 33 and 34 of the Constitution of Kenya, 2010. The proposals further seek to remove the rule-making function from the authority.” The amendments were introduced in Parliament by Majority Leader Aden Duale who presents Cabinet-backed Bills to the House.

In fresh twist, Information ministry Cabinet Secretary Fred Matiang’i opposed the proposed amendments saying his ministry was not consulted and that they are meant to occasion anarchy and undermine the regulator’s efforts.

Dr Matiang’i said that the amendments are designed to favour one operator. Safaricom dominates the Kenyan mobile market.

Its revenues from calls amounted to a 91.63 per cent market share in 2014, while its closest competitor, Airtel, had 8.33 per cent, according to data obtained from CA.