A three-judge bench yesterday upheld fines of up to Sh500,000 for journalists and Sh20 million for media houses for breaching media laws.
High Court judges Isaac Lenaola, Mumbi Ngugi and Weldon Korir retained the fines on the "premise" that "there ought to be penalties for media malpractices".
"Where the penalty is imposed for acts which are in breach of the law and it is imposed after the party in question has been heard and been given an opportunity to present its case, then the imposition of the penalty cannot be said to violate the Constitution," the judges said in their 109-page ruling.
They added that journalists and media houses were "not angels".
"It must be acknowledged that journalists and the media enterprises that they work for, not to put too fine a point on it, are not angels. They will do thing that they out not to do, either deliberately, inadvertently or negligently. They must be prepared to face the consequences which are in accord with the law," the judges said.
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When they went to court, journalists and media houses had argued that the fines were going to stifle debate and push journalists to self-censorship. They said the amendments to the Kenya Information and Communication Act, and the new Media Council Act, were against the Constitution.
Looked at together, the draconian provisions upheld yesterday plus the Penal Code, the Defamation Act and the general libel suits, the court was told, will have a chilling effect on the media houses who may want, in public interest and for public good to engage in vigorous and justified criticism either on the conduct of government or matters that often attract discussion like religion, family, education and lifestyles.
The only reprieve that the court gave the country's media was when it expunged two clauses in the Media Council Act because they were unconstitutional.
The good news in the ruling is that the State will not penalize journalists and hide under the blanket cloak of "protection of national security". The court said, the phrasing of the clause in the Media Council Act binding journalists and media houses to ensure "that the protection of national security, public order, public health and public morals is safeguarded" was "vague".
The judges said clause 6(2)(c) was "couched in a manner that is vague and that is likely to limit the freedom of expression".
The clause forcing media houses to do their job in a manner to "reflect the interests of all sections of society" was rejected.
"It is our finding that section 3(2)(a) of the Media Council Act , to the extent that it requires that in exercise of the right to freedom of expression ...is an an unjustifiable limitation of the right to freedom of expression and is therefore unconstitutional," said the High Court.
The courts also slammed the Attorney General Prof Githu Muigai for shoddy drafting of the Media Council Act and the Kenya Information and Communication (amendment) Act which caused an overlap of functions between the Complaints Commission of the Media Council, and the Multimedia and Communications Appeals Tribunal.
But while journalists and media houses were afraid that the clash in jurisdiction of the two bodies would hit the country hard, the High Court argued that there was no way they will be punished twice for the same offence.