Leading telecommunciations industry service providers in Kenya, Airtel and Kenya will be merging.

Telkom Kenya and Airtel Kenya have now officially made public the commencement of merger plans amidst long running rumors on the same. The two carriers are presumed to have agreed to merge their mobile, carrier and enterprise services.

The two will operate under a single entity named Airtel-Telkom if and when regulatory approvals allow.

Under the deal, the firms said in a statement, Telkom Kenya’s real estate portfolio and specific government services will not form part of the combined entity.

“The final shareholding will be determined at the closing of the transaction. Telkom Kenya has the option of holding up to 49 per cent of that shareholding,” they said.

Telkom’s current CEO Mugo Kibati will serve as the Chairman of the entity to be formed. On the other hand, Airtel Kenya’s Chief Executive Prasanta Sarma will have his hat bumped up to CEO of Airtel-Telkom.

Latest data from Communications Authority of Kenya (CA) covering three months to September showed, Airtel the Kenyan subsidiary of Indian telecom giant Bharti Airtel, had a market share of 22.3 per cent while Telkom had nine per cent.

Telkom Kenya is majority owned (60 per cent) by the UK-based private equity firm Helios Investment Partners. The Kenyan government owns 40 per cent.

It will be interesting to monitor and observe the difference that this merger has on the telecommunications industry, the effect that it will have on market dynamics and the steps that leading service provider Safaricom will take to match this move.

Read More Here and Here.

One of the recent conversations that has been a buzz word in recent days has been that of new and emerging technologies. This includes Internet of Things (IOT).

Over the past few months, Code for Africa has been running the sensors.AFRICA project to collect data on air pollution across the continent, with 22 low-cost air quality sensors collecting data that can be used by the media, citizens, civic watchdogs and governments to push for regulations that will ensure cleaner air, and for people living in polluted environments to take action to protect themselves.

According to CfA here, The sensors measure levels of particulate matter and pollutants such as carbon monoxide and nitrous oxides. Air passes through an inlet and then through the detection area before being ejected from the sensor through the inbuilt fan. The particles pass a laser, scattering the light and transforming it into electrical signals. These signals show the number and diameter of the particles contained in the air sample.

The sensor has a response time of 10 seconds, making data collected near real time.

During this period of time, we have seen resident associations come together to protest the inaction of environmental regulatory authorities to curb express pollutant activities. This past week residents of Syokimau sought to engage the National Environmental Management Authority (NEMA) to discuss the possible pollution caused by an industry located in the area.

With such information available for the use of communities such as these and for similar scenarios, CfA is proactively using technology for the good of the masses. The Kenyan Constitution provides that every person has the right to a clean and healthy environment, which includes the right to have the environment protected for the benefit of present and future generations.

Using technology to back and inform decisions by providing accurate and reliable information is highly commendable.

About sensors.AFRICA

sensors.AFRICA is a transnational pan-African network of citizen sensor projects backed by Code for Africa, with air quality sensors in 4 countries: Kenya, Nigeria, South Africa and Tanzania, located in Nairobi, Lagos, Cape Town, Durban and Dar es Salaam. The data is aggregated and displayed on a live map, and the data is available in an online archive. If you interested in working with sensors.AFRICA or using their data, you may reach them vide this form.

Code for Africa is Africa’s largest data journalism and civic technology initiative, operating CitizenLabs across the continent to help fast-track digital experimentation and transformation in newsrooms and other social justice organisations.

Read More Here

The New York state attorney general’s office on Wednesday announced a $50,000 settlement with a company that made millions of dollars selling fake followers and engagement to social media users seeking to boost their online profiles.

The settlement between New York Attorney General Letitia James (D) and now-defunct social media company Devumi is one of the first legal actions in the U.S. cracking down on the practice of selling bot followers and fake “likes.”

It is the first finding by a law enforcement agency that it is illegal to sell fake social media engagement.

Devumi, which operated from 2015 to 2017, sold fake followers, “likes,” views and influencer endorsements to customers on Twitter, Facebook, YouTube, SoundCloud and more. The company’s customers, numbering roughly in the hundreds of thousands, included actors, academics, professional athletes, models and media figures, according to the settlement.

Devumi earned revenues of around $15 million during its short-lived existence, the settlement says.

Just like in the US, Kenyan law does not provide for fake followers on social media platforms and speak to its legality or lack thereof. It may be perceived to be fraud and false advertising but proving that using a legal instrument that did not envision that scenario would be difficult.

Mid last year, Twitter cracked down and conducted an audit of its users in an attempt to remove fake followers which saw millions of accounts deleted. In Kenya, a number of Twitter bigwigs saw their follower numbers drop, some marginally while others lost significantly. Read more on this here.

Read More Here.

In the course of this week, the UK Competition and Markets Authority published a guidance note on Influencer Marketing and introduced new requirements which influencers should abide by.

Popular bloggers, vloggers, celebrities and social media personalities (also referred to as ‘influencers’) can have a lot of influence over people’s buying decisions if they promote a product or service in their posts.

Per the Authority, people need to know if influencers have been paid, incentivised or in any way rewarded to endorse or review something in their posts. It’s important that they make this clear to their followers. This includes when a product or service has been given to them for free.

This needs to be clearly stated when a product, brand or service is tagged, linked or endorsed in any way.

Under UK law, where influencers mislead followers, in certain instances they may be breaking consumer protection law or industry rules on advertising, and could face enforcement action from the CMA, local authority Trading Standards services or the Department for the Economy in Northern Ireland.

What Influencers Must Do

  • Say when paid, given or loaned things
    Any form of reward, including money, gifts of services or products, or the loan of a product, is deemed to be a form ‘payment’ – whether originally asked for or got sent it out of the blue (e.g. ‘freebies’).
  • Be clear about the relationship with a brand or business
    Where they are including discount codes, competitions or giveaways, or references to the influencer’s own range of products. Influencers should make sure they are transparent and state that the post is a promotion.

The influencer marketing scene has steadily grown over the past few years in Kenya. We have witnessed a large growing class of ‘social media celebrities’ from Instagram, Twitter and YouTube. Brands and Marketing agencies have also taken note of these and regularly engage influencers to promote their brands, products, offers and sale deals.

We do have clear legislation and regulation on consumer protection and advertising on traditional media channels. The truth however, is that there is a grey area with regard to the regulation of influencers as an advertising vertical.

The documentary ‘Fyre Festival’ on Netflix is a telling reality of the influence that influencers can have over a demographic.

In short per Forbes, here ;

‘About two years ago, a young charismatic character, Billy McFarland, planned an over-the-top luxury music festival on a beautiful exotic beach in the Bahamas to bring awareness to his new entertainment app, created along with his business partner, rapper Ja Rule. To promote the spectacularly posh event, McFarland enlisted the help of top international models and social media influencers to generate buzz and an air of exclusivity around the festival. Their Instagram account blew up as Kendall Jenner, Bella Hadid, Emily Ratajkowski and other models and influencers posted pictures and videos of themselves frolicking and enjoying the beautiful secluded beach on a private island—once owned by the drug lord, Pablo Escobar.

The Fyre Festival looked like it would be the hottest destination designed for rich, hip, young Millennials. Desiring to join this elite getaway, thousands of people purchased expensive tickets to attend. The promotional materials claimed that there would be top musical acts, private villas, top-shelf alcoholic beverages and lush lavish meals.’

Unfortunately, due to several issues including poor management style, hiring inexperienced, naive and gullible staff, short timelines, withdrawal of certain vendors, cancellation of the musical performers, the festival was an unmitigated disaster.

In Kenya, we have seen instances where influencers recommend or push for the attendance of certain events which don’t pan out as planned or use of products that don’t deliver on what is promised.

UK Influencers are required to not be misleading. It’s important that they don’t give the impression that:

  • they are just a consumer when they’re actually acting for own business purposes or on behalf of a brand or other business;
  • they have bought something that was given as a gift or on loan; and
  • they have used the service or product, if they haven’t.

Should we then have clear rules that stipulate how influencers engage with users? Should they have an obligation to report or indicate when a post or a video is sponsored? Should there be full or partial disclosure? And in the event that they do not comply with the rules, should they be held liable?

The underlying ethos of consumer protection law requires that ads must not be misleading.

Over to the Competition Authority of Kenya, CAK whose mandate includes participating in deliberations and proceedings of government, government commissions, regulatory authorities and other bodies in relation to competition and consumer welfare.

You can read the note here.

As reported in the Business Daily earlier this week, the Court of Appeal dismissed an appeal by beer maker East African Breweries Limited (EABL) challenging a law passed a few years ago requiring health warning messages to beer bottles.

The Honourable Court found nothing wrong with the law because there was a need to protect consumers of alcoholic beverages according to Article 46 of the Constitution on Consumer Rights.

The court upheld a decision of Supreme Court Judge Isaac Lenaola (then High Court Judge) dismissing the case by EABL arguing it did not have merit and said the judge didn’t err in rejecting the invitation to rule on the percentage area on bottles required for the message.

The three judge bench said that courts do not by nature have the expertise and resources required for detailed examination of legislative policy and how the same translates into actual statutes.

Further, the judges dismissed claims that the law was passed without consultations stating that there was evidence of consultations by the National Campaign Against Drug Abuse (NACADA).

In this case, EABL had challenged the constitutionality of Section 32 of the Alcoholic Drinks Control Act 2010, which requires a manufacturer, importer, seller or distributor of an alcoholic drink, to ensure that every package has at least two of the health warning messages in English or Kiswahili.

Read More Here.

Our Co – Organizer, Angela Wanjohi will be at this month’s Hacks/Hackers Nairobi to help make Kenya’s traffic laws easily accessible to citizens.

Journalists sometimes call themselves “hacks,” a tongue-in-cheek term for someone who can churn out words in any situation. Hackers use the digital equivalent of duct tape to whip out code.

Hacks/Hackers tries to bridge those two worlds. It’s for hackers exploring technologies to filter, visualize and distribute information in a narrative way, and for hacks who use technology to find and tell stories.

Hacks/Hackers is a digital community of people who seek to inspire each other, share information (and code) and collaborate to invent the future of media and journalism.

Hacks/Hackers Africa seeks to bring all these people together —  in order to be more effective in making sense of our world. They aim to help members find inspiration and think in new directions, bringing together potential collaborators for projects and new ventures.

Code for Africa initiative is driven and co-funded by grassroots citizen organizations and the mass media and is focused primarily on building civic technology capacity within civil society and the watchdog media.

Code for Africa operates as a federation of autonomous country-based digital innovation organisations that support ‘citizen labs’ in nine countries and major projects in a further 15 countries, including in Kenya. There are Code for Africa affiliate labs in Cameroon, Ethiopia, Ghana, Kenya, Nigeria, Sierra Leone, South Africa, Tanzania, and Uganda.

Code for Kenya is working to revolutionise the way journalists & activists use open data, by embedding data fellows into Kenyan newsrooms & civic organisations.

The event will be hosted tomorrow, 31st of January 2019 at Nairobi Garage 8th Floor Pinetree Plaza between 6.30 and 8.30 am.

Please RSVP here.

Impatient with a lack of World Trade Organization rules on the explosive growth of e-commerce, 76 members – including the United States, China, the European Union and Japan – agreed to start negotiating a new framework. China, which is locked in a trade war with the United States, signaled conditional support for the initiative but said it should also take into account the needs of developing countries.

E-commerce, or online trade in goods and services, has become a huge component of the global economy.

Trade experts say the global trade rulebook is rapidly becoming outdated and needs to keep up or become obsolete. A recent study found that 70 regional trade agreements already include provisions or chapters on e-commerce.

The WTO’s 164 members failed to consolidate some 25 separate e-commerce proposals at a conference at Buenos Aires in December, including a call to set up a central e-commerce negotiating forum.

E-commerce, which developed largely after the WTO’s creation in 1995, was not part of the Doha round of talks that began in 2001 and eventually collapsed more than a decade later.

Read More here and here

This past week, there have been several news reports and announcements that the Government seeks identifiable data of persons in order to improve public service delivery.

One of the classes you have to go through as a law student is Jurisprudence. The theory of law. Where you’re taught about the various schools of thought that influence law and decision making. One that stood out for me years back and still resonates to date is the Social Contract theory.

I believe the proponent whose thoughts I particularly resonate with is John Locke. The gist of which was, as citizens we surrender some freedom to the Government. We enter into some form of informal contract with the State permitting them to do certain things and take certain actions for our protection and/or good.

My reading of the recent announcement of the formation of the Presidential Committee and executive announcements is just that.

In essence, the State would like more of your data (in addition to what they already have on from your birth certificate, national ID, Passport, National Housing Scheme, National Social Security  Fund and the National Taxpayer PIN. All of which really in essence require the same type of information at registration. A bulk of this information is held under the IPRS which feeds into the Public Service Delivery Portal E – Citizen.

The Integrated Population Registration system (IPRS) is the Government endeavor to harmonize all government population registration databases into one national data base.

Per the website, this initiative is in line with the objectives of the Government as contained in the Kenya Vision 2030 and the Jubilee Manifesto of having a single database a source of truth on identity of persons. The National Population Register was installed in the 2008 and it has be continuously been populated with data from relevant government agencies such as Civil Registration, National Registration Bureau, Immigration and Refugees Affairs.

Currently the register is populated with about 39 million records of registered Kenya citizens and foreign residents.

According to Techweez, during the staging of Connected Kenya 2018 at the Bomas of Kenya, the Cabinet Secretary for ICT Joe Mucheru revealed that the government was planning to issue unique numbers for all Kenyan citizens at Huduma Centres. Dubbed Huduma Number, the unique identifiers are meant to hasten delivery of services as the state continues to synchronize citizens’ data with other government services.

The government is now free to collect data on Kenyans’ DNA and physical location of their homes including satellite details during registration of persons.

This follows President Uhuru Kenyatta’s approval of amendments to the Registration of Persons Act that has included the two to the list of requirements needed at the national people’s registry.

The new law allows the creation of the National Integrated Identity Management System, which will ensure that all IDs, refugee cards, birth and death certificates as well as driving licences and passports are printed and distributed for collection from a central location.

The new system will be a single source of personal information of all Kenyans and registered foreigners.

Having undertaken extensive research and review of data protection legal instruments, that data shall be collected is inevitable. How it is handled and managed however is the most important element in this value chain.

There are internationally accepted principles of data protection which should guide and inform data management.

These are: (source here)

  • Lawfulness, fairness and transparency – Data must be processed lawfully, fairly and in a transparent manner in relation to the data subject.
  • Purpose limitation – Only collect personal data for a specific, explicit and legitimate purpose. The purpose should be clearly stated and only collect data for as long as necessary to complete that purpose.
  • Data minimisation – Processed data should be adequate, relevant and limited to what is necessary in relation to the processing purpose.
  • Accuracy –  Every reasonable step to update or remove data that is inaccurate or incomplete should be taken. Individuals have the right to request that one erase or rectify erroneous data that relates to them once informed.
  • Storage limitation – A data controller or processor must delete personal data when it is no longer needed for the purpose it was collected for.
  • Integrity and confidentiality – Organizations should take appropriate technical or organisational  measures to ensure that personal data is safe and protected against unauthorised or unlawful processing.

Read more here and here.

The Kenya Copyright Board recently announced the grant of license to three Collective Management Organizations to collect royalties on behalf of content creators for the year 2019.

KECOBO licenses and supervises the collective management organizations in Kenya.
Currently, there are three (3) such CMOs in Kenya and they are: Kenya Association of Music Producers (KAMP),  Music Copyright Society (MCSK) and the Performers Rights Society of Kenya (PRiSK).

Collective management is the exercise of copyright and related rights by organizations acting in the interest and on behalf of the owners of rights. The creator of a work has the right to allow or to prohibit the use of his works

Collective Management Organizations are thus private organisations (in the case of Kenya, they are registered as companies limited by guarantee), that are established to collectively administer the rights of their members such as composers, performers, authors, artists, book publishers among others. They manage the rights that cannot be administered by individuals.

According to WIPO, “Traditional” CMOs acting on behalf of their members, negotiate rates and terms of use with users, issue licenses authorizing uses, collect and distribute royalties. The individual owner of rights does not become directly involved in any of these steps.

The Kenya Association of Music Producers (KAMP) is mandated to collect for and distribute royalties to producers of sound recordings.

Performers Rights Society of Kenya (PRiSK) is a collective management organisation licensed by the Kenya Copyright Board to represent performers in musical and dramatic works.

The Music Copyright Society of Kenya (MCSK) collects royalties in public performance and broadcasting, on behalf of its members.

This was announced vide a press statement dated 20th January 2019 issued by the Board. In this recent announcement, a key alteration on the set up is that previously licensed Music Publishers Association of Kenya (MPAKE) is now replaced by the earlier CMO MCSK. MCSK had been denied an operating license by the Board and could therefore neither collect nor distribute royalties on behalf of its members.

MCSK was required to hold elections, restructure its management agree to a forensic audit of its financial records of the last two years and accept an independent Board Chairperson to oversee a turnaround. It was also required to obtain new letters of authorization from its members and provide further details of its members.

Mr. David Murithii, a former Board Member and Chair of the Audit Committee, has been appointed at the chair of the MCSK board for a period of one year to assist in the reformation of the organization. It is expected that over this period of time that he shall oversee corporate and management reform.

KECOBO’s management will also analyse the CMOs Memorandum and Articles of association to find areas of wastage and non-compliance. Further, the directors of all the CMO’s will be subjected to Corporate Governance Training.

It is expected that the Copyright Amendment Bill before the Senate will give the Board more power and flexibility required to provide the required oversight mandate over the CMOs.

Additionally, to discuss this further, the Board has organized a Public Forum to Discuss the Joint Tariffs Submitted by MCSK, KAMP & PRiSK, for today, Thursday 24th January, 2019, NHIF Auditorium, 8.30Am – 11.30Am.

News reports indicate that telecommunications service provider Vodacom Group is paying out “reasonable compensation” to a former employee of the South African mobile-network operator for his idea to develop a popular call-back service after a former chief executive officer first took credit for the product.

The settlement comes almost a decade after Mr. Kenneth Makate started court proceedings against Vodacom for credit and financial compensation for the service that allows customers with a zero balance on their mobile phones to contact someone free of charge with the SMS message ‘Please call me’.

“In the spirit of the confidentiality agreement, the parties signed as part of the negotiating process, Vodacom will not disclose the amount set by the CEO.”Makate, 42, took the idea to Vodacom’s product-development team while he was working in the finance division in the early 2000s. Alan Knott-Craig, who was the CEO at that time, had to determine reasonable compensation for the idea, which did not happen then.

As the above report is based on a news reporting, our team is unable to read through and tease out the legal issues and questions raised therein. Most importantly is the idea – expression dichotomy in Copyright Law. Under the law, an idea is worthless expression of the idea is the important element to determine ownership and origin.

Unfortunately, as is the norm in IP matters, several claims are settled out of court therefore not giving the public access to the details therein but unfortunately also not building African jurisprudence on intellectual property.

Read more here.