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Arbitration key in resolving disputes involving media


"For too many journalists, one lawsuit could bankrupt them or their newsroom"- Josh Stearns, GR Dodge Foundation.

This ominous statement has become a sad reality for the Kenyan media industry which has faced numerous libel suits whose outcomes are exorbitant damages for civil defamation slapped against media organisations and individual journalists by the formal court system. This has affected freedom of expression by self-censorship which stifles publication of sensitive high-profile stories and a threat to media sustainability given the accompanying hefty costs.

This undermines the media's role as a guarantor of freedom of expression and right to information in a heterogeneous society. A free and functioning media fosters responsible journalism that churns truthful, balanced and fair account of matters of public interest.

Therefore, all media related complaints either by citizens against media firms/journalists or by journalists/media firms against other State or non-State agencies require a dedicated alternative disputes resolution mechanism specifically tailored to resolve disputes in the media sector, in an efficient, cost-effective and informal way without the need for expensive or protracted court litigation. More importantly, the decisions reached in arbitration are binding and enforceable in court.

Arbitration in media comes with several benefits. It is generally faster and more effective than traditional court litigation. Arbitration proceedings are characteristically confidential, which can be important in media cases where public exposure may be unwelcome.

It is noteworthy that arbitrators often have specialised knowledge in media law, which can lead to more informed decisions and necessary programmatic interventions. Further, arbitration allows for more flexible processes and can be customised to the specific needs of the parties involved.

Additionally, by avoiding the court system, parties in media cases can avoid the negative publicity and public scrutiny that can often accompany court litigation.

The Media Complaints Commission exists under Section 27 of the Media Council Act, 2013 as the complaints mechanism in the media sector. It is anchored under Article 159 of the Constitution which promotes alternative dispute resolution processes such as mediation. The commission seeks to ensure adherence to high standards of journalism as provided for in the Code of Conduct for the Practice of Journalism in Kenya.

In the Kenyan judicial system, it falls under Article 169 (1) (d) as a quasi-judicial tribunal established by an Act of Parliament and its decisions are appealable to the High Court. The commission receives administrative support from the Media Council of Kenya Secretariat.

The commission also determines appeals against the decisions of the Media Council in its regulatory function under section 42 of the Act. The uniqueness of the commission is in its set-up under the Bill of Rights to defend the public interest in media practice and ensure professional journalism.

Journalists and media practitioners who continue to face violations from State and non-state actors are encouraged to seek recourse to the reliefs granted under this mechanism. Similarly, any member of the public aggrieved by the media should engage the commission for closure.

Mr Oketch is the Chairperson of Media Complaints Commission. [email protected]

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