Media Regulation: Lessons from Kenya Experience

Any visitor to Kenya would be impressed with the level of media freedom. Sometimes anything goes. There is no doubt that any that the media is growing and thriving under an atmosphere of freedom and openness that would have been impossible to imagine during the single-party days. Democratisation brought with it unhindered freedom of speech, thought, association etc; that has not only been reflected in our sometimes chaotic and undisciplined politics, but also in the media. Sometimes it’s like a free for all, like anything can be published or broadcast without a thought to the truth, media ethics, common decency and good taste.
That is why we are the first to recognise that regulation is necessary. By Linus Gitahi – Kenya’s Nation It is important to instil some discipline and professionalism; and to Media Group CEO giving operate within a code of practise and ethics in the Fourth Estate.
Conference perspective of Kenyan Experience

But we have always pushed for self-regulation, not government control; and hence establishment of the complaints function within

the Media Council of Kenya. We are not saying of course that everything is well. There have been some well-publicised violations by the State, the most notorious being the invasion of Standard Group premises by masked policemen in 2006. There have also been some unwarranted attacks and threats on the media by politicians or top government administrators, but quite often these have been the actions of over-zealous individuals rather than official policy. The level of media freedom in Kenya has not been achieved without a fight and without perpetual vigilance.

A look at the arena of media regulation in Kenya will reveal perpetual conflict between the industry and government. Sometimes this conflict is fought out openly and sometimes it is behind closed doors. We are constantly having to resist government efforts to control and contain the media through laws and regulations that we see as oppressive and dictatorial. The latest instalment revolves around our opposition to a broadcast media regulations vide the Kenya Communications Act. The media in Kenya feels that they were imposed unilaterally by the Minister for Information and Communications in complete disregard of a regulatory framework agreed on in consultation with media stakeholders at a meeting presided over by the Prime Minister and the Attorney General. It is our position that the rules gazetted late last year are oppressive and open to abuse; intended more as a means of control rather than as an independent regulatory framework. We are also concerned that the ministry sneaked in under the cover of rules & regulations provisions that were rejected by the media and deleted from the principal Act, and even from earlier effort to institute media regulations going back to the mid-1990s. Perhaps here it is important to provide some history. The quest for media regulations in Kenya goes back to the mid-1990s. In 1995 the government published, without consultations and completely ignoring previous discussion with the industry, The Kenya Mass Media Commission Bill and The Press Council of Kenya Bill. Actually those two Bills can be traced back to the early 1990s when the first serious steps to media regulation were seen. It might seem odd that steps to control (rather than regulate) the media coincided with the transition to a multi-party regime. Prior to that, laws governing the media in Kenya were haphazard and fragmented in different sections of Statute law, the Constitution and civil and criminal procedures. Many of them were inherited from a colonial regime that placed premium on curbing free expression, free communication and discordant voices. These legal curbs were happily inherited by the independence government of Jomo Kenyatta and his successors Daniel Arap Moi and Mwai Kibaki.

Even up to now the Constitution of Kenya (The prevailing one, not the proposed one), provides for freedom of expression but makes no mention of freedom of press and other media; it also provides limitations of the fundamental rights and freedoms under vague circumstances thus allowing for violations of same rights. Thankfully, the proposed constitution is very explicit on the freedom of the press. Today in this day and age we still have an Official Secrets Act. We also have regulations newspapers publishers to pay a hefty “security bond” before they can go into business. Even in the absence of all-encompassing media laws, disparate pieces of legislation in the past, and even presently used to contain and hamper free media have included the: The Defamation Act, Cap 36; The Penal Code, Cap 63; The Books and Newspapers Act, Cap 111; Copyright Act, Cap 130; Preservation of Public Security Act, Cap 57; Public Order Act, Cap 56; Film and Stage Plays Act, Cap 222 (1962); Chief’s Authority Act, Cap 128; Official Secrets Act, Cap 187 of 1968; Police Act, Cap 84; Armed Forces Act, Cap 199; Communication Commission of Kenya Act of 1998; Kenya Broadcasting Act, Cap 221 of 1998, ICT Act of 2007; and Media Act, 2007. The advent of democracy in the early 1990 came with a proliferation of the mass media, including liberalization of the airwaves, and obvious needs for a regulatory regime. However in most cases it seemed that the government was more interested on control rather than an independent regulatory mechanism. The Attorney General in 1993 set up the first Task Force on Press Law (Chaired by Weekly Review founder and editor-in-chief Hilary Ngweno) to review and make recommendations on a comprehensive legal framework for the press and development of electronic media. Although the Task Force consulted closely with the media and produced a report that took into account the views and needs of stakeholders, the resulting legislation failed to capture the spirit of the Task Force. The government published without consultations The Kenya Mass Media Commission Bill (1995) to regulate the operations of the mass media; and The Press Council of Kenya Bill (1995) for the

registration of the Press Council of Kenya to regulate the conduct and discipline of journalists and the mass media. The media rejected the Bills because they failed to protect the right to information, failed to protect journalists, publishers and broadcasters and gave government unfair representation in proposed regulatory body. The government then retreated shelved the two Bills and with reconstitution of the Task Force 1996 (chaired by Horace Awori, former chairman of Foreign Correspondents Association of East Africa). Although again the process was participatory and broad ranging, the final report presented to government in May 1998 failed to reflect the main concerns of media. The media rebelled against government led review processes and instead endorsed a media-led review task force. The Kenya Union of Journalists and other stakeholders prepared the Media Bill 1998: Framework for Free and Independent Press for the Task Force on Press and Media Law in April 1998. It made recommendations for the establishment of an Independent Mass Media Commission and the Media Council of Kenya and the repeal of section 79 of the Constitution of Kenya and replacement with a new provision that would guarantee freedom of the media, protection of journalists, publishers, Broadcasters and right of access to information. The government ignored it. It was not until the clamour for constitution review and the minimum reform package negotiated under the 1997 Inter-Party Parliamentary Group deal that saw repeal laws that hindered freedom of expression and assembly and which criminalized the free flow of published information. Still, groups like the KUJ, Media Owners Association and Kenya Editors’ Guild continued to engage the government in the quest for comprehensive and mutually acceptable media laws. However there was there was a general lack of linkage between task forces, various proposed bills on media law and the de-linking process in the telecoms sector (Separation of Kenya Posts from Telkom and establishment of a separate Communications Commission of Kenya). Throughout negotiations continued between media stakeholders and the government for formation of an independent self-regulatory system. Towards the end of the 1990s came the first draft of a Media Council of Kenya Bill, which immediately was rejected by the industry because it was more attuned to control and It was not until 2007 that after protracted delays, a Media Council of Kenya Act acceptable to the industry was enacted. It came with an code of conduct and practice and a complaints council to enforce the

To provide self-regulation of the media. Unfortunately, however, it also came in constraints that curbed operations of the complaints mechanism by banning government funding and also donor funding. It also became clear in subsequent years that the Media Council was mostly attuned to print journalism, while the fast-evolving broadcasting sector was under separate laws, under the Communications Commission of Kenya, the Kenya Broadcasting Corporation and the parent Ministry of Information and Communications. From 2007 onwards wide consultations took place towards the ICT Act, policy and strategy and amendments to the Communications Act to bring the legislation in line with the needs of today. Unfortunately, as had been seen with earlier initiatives, the government reflexively moved towards control rather than regulation, leading to frequent stand-offs with the industry as earlier recounted. The government has also been slow to move forward the Freedom of Information Bill and repeal the Official Secrets Act. There are still differences over the Broadcast Regulation in the Communications Act, particularly in regard to concerns over the potential for political interference in the licensing regime; and the broadcast content censorship mechanism which should not be in the Act at all as content is a function of the Media Council.

However, in the midst of all this is a desire by all stakeholders in a country such as Kenya or Zambia to have a media that is vibrant and that helps to drive a society towards fulfilling their dreams and aspirations. The next few paragraphs contain some imperatives which are necessary for media in Africa to play its rightful role; the ten imperatives follow; 1) Self regulation. It’s important that media has a strong self regulation mechanism .Without this; even the citizenry will join the chorus demanding regulations 2) Content. It’s important that content regulations be under one roof. It does not matter what media platform it is but when one complains about content, it’s important that you do it to the same body that reviews your issues in the same way and solves the problem in the same way. 3) Independence. Self regulation must be seen to be fair and independent for it to be believed by the stake holders. To achieve this, it is important that the self regulation body set up by the media has as wide representation as possible. We must get civil society, religious leaders, media scholars represented in such a body. If we do that, the citizenry will have faith in its activities and decisions. 4) Media in Africa must seek to play even a bigger role in influencing society and help instill proper values amongst the populace. What we show on our screens and write in our papers or discussions in our radios must be helpful in driving us to positively be the society that we seek to be.

5) Africa media must do more to cerebrate good deeds, good governance, good performance etc. We must be ‘hope creators’ even as we call everyone ton account. We are poor at cerebrating our own and encouraging ourselves as a people. (The 100 meters world record holder recently came to Kenya to a heroes welcome. He even met the President! You can’t believe Kenya holds a few world records in athletics and the holders have not been as cerebrated!) 6) Development; Media must do its bit to be a catalyst for development. We must devote enough space/time to this. This is our patriotic duty. We must distinguish the ‘Nation’ and our pride in it with the Government of the day which we may sometimes not like. Like a T shirt I bought some times back in the USA read, “I LOVE MY COUNTRY; It’s this Government that I dislike” Immediately after the financial meltdown started, CNN was already running a programme on its screens called road to recovery. That was a patriotic duty of creating hope where there was almost none. Can our media in Africa do this? 7) Citizen Journalism; Media must embrace citizen journalism to help build and sustain a two way conversation. This includes the right of reply. Today, if we do not uphold this, we shall be rendered irrelevant and conversations will go on in the internet with a much wider reach with needing our consent. 8) Africa media must cooperate to tell the African story better. It’s a shame that we still have to rely on Reuters to tell story of even our neighbouring countries! It costs us nothing to share stories of each others hub. If we do this, it will be the beginning of an African Reuters. 9) Media training. Journalists must be well trained. Nation media group has a media lab where we take graduates from various disciplines and do a 9 months programme converting them into journalists. We must invest in training even more if we want to continue being respected. 10) Media must remain fiercely independent of the executive, the legislature and the judicially for it to continue its functions without looking over its shoulders.