Kenya’s media sector will soon have new operation guidelines.
This follows the ongoing review of the current policies and guidelines by a Taskforce appointed by ICT Cabinet Secretary Joe Mucheru.
I have to admit that this move is timely, as the media sector faces transformation brought about by the internet, and technological advancement in the sector.
Historically, there have been attempts to review laws governing the media. For instance, in 1993, the Attorney General set up the first Taskforce which looked into Press Law with the aim of providing a suitable legal framework that would guarantee responsible print and electronic media.
The resulting bills from the Hillary Ng’weno led Taskforce, The Kenya Mass Media Commission Bill, 1995 and The Press Council of Kenya Bill, 1995 did not capture the spirit of the Taskforce.
Bills in bad taste
The two bills were seen to be in bad taste and termed draconian. Besides, they accorded the government unfair representation in then proposed regulatory body.
After such a massive protest by various stakeholders, the government established another Taskforce in 1996 and appointed Horace Awori as Chair.
Again, this Task Force report captured not major concerns of the media despite its participatory nature.
Subsequent attempts by Kenya Union of Journalists (KUJ) to come up with a Taskforce that would later prescribe safeguards for media freedom and independence were ignored by a government that was not keen on having a vibrant media in place.
Luckily, Moi’s government bowed to pressure, paving way for repeal of contentious sections such as section 52, 53, 54, 57, 58, 66, 67 and 121 during the 1997 Inter Party Parliamentary Group talks.
In 2004, media stakeholders established Media Council of Kenya (MCK) in a bid to achieve industry self-regulation.
MCK was to be later transformed into a statutory regulator through MCK Act, 2007 and amended in 2013 to align it with the new constitution promulgated in 2010.
A close examination of the Media Policy environment reveals several and sometimes overlapping roles played by the various bodies that regulate the media.
Need for Media Policy Review?
The subject of media regulation is both interesting and contentious, depending on one’s vintage point.
Currently, three main institutions regulating the media are the Communication Authority (CA), MCK and Kenya Film and Classification Board (KFCB).
All these were created through The Kenya Information and Communication (Amendment) Act, 2013 (KICA); Media Council Act, 2013 and the Film and Stage Plays Act Cap 222, 1962 respectively.
CA’s mandate is to facilitate the development of information and communication sector which includes broadcasting, multimedia, telecommunications and postal services; hence power to regulate all kinds of broadcast and online media.
On the other hand, MCK is the lead agency in setting media standards in addition to ensuring compliance with those standards.
The mandate of regulating the creation, broadcast, distribution and exhibition of film and broadcast content to conform to national aspirations, values, culture and morality is the domain of KFCB.
So who is the media regulator?
Concerns had been raised on the exact body referred to in Article 34 of the Kenyan constitution as both CA and MCK bragged of drawing their foundational establishment from the same constitutional provision.
However, in addressing the matter of independence of the CA set under KICA 2013, the Supreme court in Petition No. 14 of 2014 (Digital Migration Case) dealt on Article 34 by clarifying that reference is made to two bodies at Article 34 (3) and Article 34 (5) to denote CA and MCK respectively.
The seemingly overlapping roles of these regulatory bodies call for review of laws. Take for example Section 102 of the KICA, 2013 which provides for the establishment of Communications and Multimedia Appeals Tribunal (CMAT) vis a vis Section 27 of MCK Act, 2013 which establishes the Complaints Commission of Kenya.
Both CMAT and Complaints Commission handle disputes between government and the media, between public and the media, and intra media.
Some have called for a review of both Acts and argued in favour of MCK’s Complaints Commission which they suggest should be the only organ to arbitrate over media disputes.
KICA, 2013 also establishes Broadcasting Standards Committee (BSC) whose responsibility it is to set broadcasting standards.
The same powers have been bestowed upon MCK. This kind of environment is likely to infuse a spirit of competition among the regulators in discharging their mandates and could have far reaching consequences on the media.
Realignment of laws is key
Still on the policy guidelines, the Programming Code for Broadcasting Services in Kenya is yet again another policy document that warrants attention.
The code is enforced by CA and addresses pertinent issues on media operations right from watershed period, good taste and decency, to privacy and fairness, hate speech, copyright, local content among others.
Whereas the code appears comprehensive, it is not spotless as it does not, in my view, adequately spell out guidelines on watershed period.
Watershed is the period between 5:00 am and 10:00 pm within which content intended for adult audience is not to be aired.
For instance, the Code provides that programmes featuring superstitious and pseudo-scientific beliefs and practices such as supernatural powers, foretelling of the future, astrology, phrenology, palm reading, numerology, faith healing among others should be carefully presented as not to mislead the viewer or listener.
The guidelines fail to demonstrate how care should be taken. How does one measure care if an investigation was to be conducted? How should such programmes be carefully presented? How can media houses demonstrate that adequate care has been taken? Thus, the immeasurability of care renders such provision vague and makes it prone to abuse.
Place of digital media
As we have an elaborate engagement with Henry Maina led Taskforce, it is important to buttress the need for the media to comply with existing legal policy provisions.
For example, provisions of the Programming Code that requires broadcasters to have editorial policies and publicly make them available; and procedure of filing a complaint in case one is aggrieved by media content as provided for MCK and also a requirement by dint of section 46L of KICA, 1998.
Also, provision of alternative points of view when controversial or contentious issues are discussed, as provided for in section 46I of KICA, 1998.
Ensuring that advertisements, either in terms of content, tone or treatment, are neither deceptive nor repugnant to good taste, as indicated in KICA Act, the threshold on local content to be broadcast by radio and television (KICA, 2013) among others spelt out in the Broadcasting regulations 2009, Talk Show Guidelines, the Code of conduct for the practice of Journalism in Kenya, Code by Advertising Standards Body of Kenya, among others.
Lastly, it is my view that the Code of Conduct for the practice of journalism be reviewed to conform with the era technological convergence and the need for a global journalism ethics, while paying attention arguments advanced by Francis Kasoma on Africanisation of Journalism ethics.
The Writer is a communications specialist