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Only journalists can regulate the media through a conducive legal regime

By Victor Bwire | Published Mon, January 18th 2016 at 10:42, Updated January 18th 2016 at 10:46 GMT +3

The regulation of media in Kenya is as problematic as in the rest of the world. But while the debate in other parts of the globe is moving towards comprehending the changing dynamics of media and journalism operations with the advent of new media formats thus realigning media regulation regimes, in Kenya, the debate seems to moving away from media self-regulation that has been working well in the professionalisation of journalism albeit with challenges, to demanding for more stringent laws, administrative control mechanisms and moral/national values arguments to justify reducing space for free media.

The frenzy to control the media seems to be taking the upper hand in the process, as the voices for those demanding for regulation; especially self-regulation seems to be getting lost. In fact, it's becoming fashionable when people, especially those in Government or public agencies bash the media or call for expanded laws to reign on the media- reduce space for independent and free media. The onslaught started with mainstream media, alternative media and is extending to the news media at an alarming rate.

The challenges facing the media in Kenya today can efficiently and adequately be dealt with through the strengthening of the existing self- regulatory body, the Media Council of Kenya, through amending some sections of the Media Council Act 2013 (to retain major sections from the repealed Media Act 2007 including reverting to Code of Ethics for the Practice of Journalism that had been validated by journalists) and harmonising existing laws that relate to the media. The path we are taking of forcing entities to control the media or adding more laws to regulate must be rethought and abandoned.

The jurisdictional and operational boundaries of the Media Council of Kenya (MCK) established under the Media Council Act 2013 and the Communications Authority established under the Kenya Information and Communications [Amendment] Act 2013 have been clarified by the Supreme Court of Kenya in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR. The Media Council of Kenya anchored under Article 34(5) as the body to 'set media standards and regulate and monitor compliance with those standards.' Section 6(1)(b)(d)(g) and (k) of the Media Council Act [2013] grants the MCK a mandate of prescribing, promoting, setting, developing, monitoring and regulating ethical and professional standards for journalists, media practitioners and media enterprises. The understanding then was that MCK deals with media professional /content issues and hope this will be maintained, because the recently published programme Code for free to air TV and radio, has almost an entire chapter that that is a duplication of the code of ethics that is administered by MCK. The council and Communications Authority have an MoU and I hope the issue is dealt with as per the above court ruling guided.

This case dealt with in finality Article 34 on Freedom of the Media by clarifying that the two regulatory bodies responsible for media issues are: The Communications Authority of Kenya anchored under Article 34(3) to deal with establishment and licensing of broadcasting media as well as regulating airwaves and signal distribution. Section 5(1) of the Kenya Information and Communications Act [1998] gives the Communications Authority the mandate to license and regulate postal, information and communication services.

We are not going to improve professionalism in the media in Kenya through legal means including enacting outdated laws and administrative codes (codes of ethics, broadcast regulations, programmes codes that include morality arguments) or through strengthening self-regulatory mechanisms (including establishing public editor desks and internal handling procedures in media houses) as in the rest of the world?. The decision to use self-regulation for the media was reached on after it was realised that the many laws that had been enacted were not treating the problems in the industry.

A number of laws earlier put in place and inadequate to professionally allow free and independent media practice existed including the Kenya Broadcasting Corporation Act, Books and Newspapers Act, Public Security Act, Official Secrets Act, Films and Stage Plays Act, The Defamation Act, The Preservation of Public Security Act, The Public Order Act and Chief's Authority Act, National Police Service Commission Act, National Intelligent Service Act, Kenya Defence Forces Act, Copy Right Act, and the Penal Code) while others create public agencies to regulate the industry ( Media Council of Kenya, Communications Authority, Competitions Authority of Kenya, Copyright Society of Kenya, Kenya Films Board.

Tim Dwyer in his book: "Media Convergence" notes that in the new networked mediaspheres, existing laws, policies and regulation for content, ownership and control need to change to take care of the new media formats. Peter Lunt and Sonia Livingstone in their book: Media Regulation and giving the examples of reforms in media regulation in the UK and parts of the Western World notes that media regulation in a global networked world, media relies on individual professional professionals acting responsibly just as Joe Kadhi says is self-regulation the only savior for media in Kenya. Prof Vinod Kumar in the book Global Trends in Media says journalism ethics is a species of applied professional ethics whose application and evaluation is only relevant when its applied to the most common basic problems that face journalists in the field including avoiding bias, distinguishing news from opinion, minimizing harm and reporting the truth.

Media regulations is not going to be done through external means by non-media organisations creating some many laws and administrative codes but journalists themselves through a conducive legal regime that accepts that journalism is a profession and not a craft.