To Pay or not to Play?: The Role of DJs in Licensing of Copyright in Kenya

It all started with this lone tweet from your favourite DJ’s favourite DJ:

Endless tweets, tweefs and radio interviews later, the air does not seem to be quite clear yet on the important role that DJs must play in the collective management of copyright and related rights in Kenya.

The common point of departure is the Copyright Act of Kenya Cap 12 of 2001. From this Act, it is clear that all the rights in a song or music work belong to the composer. However, as soon as the song or musical work is fixed or recorded, then the maker of the fixation or sound recording holds the copyright for that fixation or recording.

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Wangari Maathai, Charity Ngilu, Martha Karua: Political Moments and the Legacies of ‘Mama’

“Leadership is not simply a matter of filling the top positions in a government. Nor is it a quality restricted to the ambitious, the elite, the politically gifted, or the highly educated. Indeed, not every person in a leadership position is truly a leader” – Wangari Maathai, ‘The Challenge For Africa’ (2009).

A good place to start would be the 1997 General Elections. Charity Ngilu, who was already a household name after capturing the Kitui central in Kenya’s first ever multiparty elections held in 1992, announced that she would be running for the presidency on a Social Democratic Party (SDP) ticket. “Ma saa na Ngilu”, for those who remember. We all cheered for this gallant politician who arrested our imagination when she stormed out of Mwai Kibaki’s Democratic Party (DP) and boldly struck out for the country’s top job despite a relatively short career in politics. And then, several months to the election, Wangari Maathai, too, announced that she was vying for the top job. The results? Moi won, of course. Kibaki came second, Raila, third and Ngilu managed a respectable 5th place, one notch higher than the late Martin Shikuku. As for Maathai, she came third from last in those elections with 0.07% of total votes cast.

With today’s news that Charity Ngilu will be seeking the presidency in the 2013 General Elections, one cannot help but feel that history is somewhat repeating itself. Martha Karua, the proverbial long-distance runner, launched her presidential bid a couple of years ago, and has been on the campaign trail ever since. Now Karua has company in the form of ‘Mama Rainbow’. It may be political naivete to ask, but would anyone serious about campaigning for the presidency launch a bid with only five months to the polls? Prior to her campaign announcement, wasn’t she on record that she would support Raila’s presidential ambitions? These questions may seem to you, rhetoric or a display of my ignorance, but allow me to continue.

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Drawing the Line: Online Freedom, Rights Abuses and the Constitutional Imperative

“The persistent controversy about the reach of the state’s power to restrict free thought and speech in a democracy suggests that freedom of expression has still not made an unassailable case for itself.” – Githu Muigai, Esq. (September 1993).

To speak or to otherwise express oneself is a natural, and indeed an essential human activity, part of what it means to be human. Expression is therefore a means of fulfillment of the human personality. On a larger scale, freedom of expression is essential to the functioning of a democratic state. For people to make political choices they must have access to information and to different view-points. In a democracy, the right to express grievances and to propagate or criticise policies enables people to contribute to peaceful progress and change their society.

Well, atleast in theory.

Enter the curious case of Robert Alai.

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Recent Electoral Law Amendments: The Mechanical Jurisprudence of Rogue MPs

The Statute Law Miscellaneous Amendment Bill 2012 has been controversially amended, in part, as follows:

Elections Act, 2011 (No. 24 of 2011)

Qualifications for nomination of candidates.
22. (1) A person may be nominated as a candidate for an election under this Act only if that person—
(a) is qualified to be elected to that office under the Constitution and this Act; and
(b) holds a post secondary school qualification recognised in Kenya.
(b) holds, at the minimum, a certificate for end of secondary school education recognized in Kenya.

(1) Notwithstanding any other provision of this Act and for the avoidance of doubt, a person who is nominated as a candidate for election as President or Deputy President is nevertheless eligible for nomination and may contest as a candidate for any other elective seat in the same elections.
(2) If a candidate for election as President or Deputy President is elected as such and is also elected for any other elective seat in the same elections, a vacancy shall thereupon be declared for that other elective seat and a by-election to fill such seat shall be held in accordance with this Act.

Participation in elections by public officers.

(5) A public officer who intends to contest an election under this Act shall resign from public office at least seven months before the date of election.
(5) A public officer who intends to contest an election under this Act shall resign from public office at least five months before the date of election.

Airtime by state radio and television for election campaign.

108. All candidates and political parties participating in an election shall be allocated reasonable airtime on state radio and television broadcasting services during the campaign period.

108. All candidates and political parties participating in an election shall be allocated reasonable airtime on all broadcasting media during the campaign period.

Political Parties Act, 2011 (No. 11 of 2011)

Transitional provisions
S. 51
(1A) Until after the first general elections held after the commencement of this Act, nothing provided for in sub-sections (4), (5) or (7) of section 14 shall be construed as requiring a person to vacate his or her seat as a member of Parliament or of a local authority, or as disqualifying any person from eligibility to contest in an election under this Act.

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The Challenge of Developing Indigenous and Patriotic Jurisprudence in Kenya

The following excerpts are taken from the Speech given by Chief Justice Willy Mutunga, President of the Supreme Court and Head of the Judiciary during the Admission to the Roll of Advocates on 19, June 2012 at the Supreme Court of Kenya.

“Some have spoken of the new Constitution as representing a second independence. This is when our institutions, and the people, are to come into their own. When the legislature will truly act as the representatives of the people, and the supervisors of the executive. When the executive will put the interests of the nation first, above the interests of tribe, individual and class. And when the curse of impunity will be ended and the rule of law prevails.

This will only happen if we all, including the judiciary, play our part, for the forces of resistance are strong.

By the rule of law, I do not mean the sort of mechanical jurisprudence we saw in cases like the Kapenguria trials. It was mechanical jurisprudence that led the High Court to reach an apparently technically sound decision that the election of a sitting President could not be challenged because the opponent had not achieved the pragmatically impossible task of serving the sitting President in person. It was mechanical jurisprudence that fuelled the decision of a High Court that the former section 84 of the old Constitution (on enforcement of Bill of Rights) was inoperative because the Chief Justice had not made rules on enforcement as he was obligated by the same Constitution to do.”


“It is perhaps remarkable that, although disappointment with the judiciary was at least as great among wananchi as frustration with politicians, it is also true that the Kenyan people chose to place their faith in the institution of the new judiciary in implementing the new Constitution.

But what I want to emphasise here is the need to develop new, not only highly competent but also indigenous jurisprudence. I link this last adjective to the Constitution’s value of patriotism. Patriotism requires putting love of country above love of self. For lawyers and judges, it does not mean putting country above justice. I conceive that it requires us to develop the law in a way that responds to the needs of the people, and to the national interest. I call this patriotic and indigenous jurisprudence. Above all, it requires a commitment to the Constitution and to the achievement of its values and vision.”

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Less Gate-Keeping, More Monitoring: Towards a New Regulatory Framework for NGOs in Kenya

When all three arms of government are on one side, the Fourth Estate is meant to assert the power of the people and ensure that the State is held to account. Traditionally, this role has been played by the media but many argue that an organised civil society could be equal to such an important task. However, both the media and NGOs in Kenya (which includes Civil Society) are largely unregulated, often finding themselves consumed by profit-making and promoting partisan agendas. For today, the focus shall be on NGOs.

Currently, the Non-Governmental Organisations Bill 2012 published a few weeks ago is the hot topic of discussion in many public and private circles. To understand how this Bill proposes to rein in NGOs and clean up the sector, we must recall some of the issues that this Bill is trying to address. Firstly the definitional issue, and then the major issue of regulation both state regulation of NGOs and self regulation of NGOs amongst themselves.

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