I have not seen the ruling but definitely we are going to challenge it...There is nothing unconstitutional in that Act since it conforms to section 33 of the Kenyan Constitution. ~ Francis Wangusi,Communications Authority
This is the second time we have had to confront the thinking of a senior public officers regarding the limits of the institution that he heads. The Attorney-General is the principal legal advisor to the Government. In this case, "Government" includes all ministries, departments and agencies, such as the Communications Authority. The Judiciary, that is, the High Court, has the constitutional authority to determine whether or not a right or fundamental freedom has been violated or might be violated by any person, including a public body such as the National Police Service, the Communications Authority or the Director of Public Prosecutions.
What Mr Wangusi did was to remind Kenyans that senior public officers are more enamoured of their powers than they are of the role they play in turning Kenya into a vibrant and successful nation. By his own admission, Mr Wangusi has not read the judgment of the constitutional court, has no clue what its rationale is, but he is nevertheless persuaded that the judgment is wrong and he is not.
This is not the first time section 29 of the Kenya Information and Communications Act has been challenged. It is a victory of sorts because the section has become the basis for the unconstitutional detention and trial of critics of the Government, its Cabinet's members and other senior government officials. Mr Wangusi is alive to the limitations of Article 33 of the Constitution, especially sub-Article (3), but he is not the principal legal advisor to the Government who can claim with authority what the constitution might or might not mean, nor is he a member of the constitution court who can determine with finality what the constitution actually means and he should stop pretending to be.
The Communications Authority is a powerful agency and it doesn't need more power. It can determine to a very great extent what kinds of information most Kenyans can have access to. It doesn't need to become the arbiter of whether or not a persons rights or reputation have been damaged; that is the realm of the courts and the Defamation Act. As a communications' regulator, the Communications Authority should ensure that those who offer communications' services to us do so at fair prices and of good quality that are reliable while protecting the privacy of our communications. It is not the Authority's job to decide whether or not a thin-skinned politician has been defamed, slandered or libeled. In other words, if you think your reputation is worth twenty million shillings and you think certain statements have damaged that twenty-million shilling reputation, put your mouth where your money is and take your accusation to court. Don't ask the Communications Authority to be your heavy.
Mr Wangusi and Mr Mutua, the Kenya Film Certification Board are working on our last collective nerve. But we have learnt; the Judiciary, every now and then, gets of its fat ass and does something useful. These two should learn the proper lessons from the Mumbi Ngugi judgment or forever suffer our undying and undimmed hostility.