New bills to greatly impact media operations

Journalists cover an event.

By David Ohito

Nairobi, Kenya: Kenya is staring at a critical moment when the National Assembly sits to discuss and pass two laws that may hugely impact media operations if enacted in their current forms.

The Media Council of Kenya Bill 2013 and the Kenya Information and Communications Act amendment (KICA) Bill 2013 will overhaul the media terrain and industry as a whole unless MPs amend clauses stakeholders have protested about.

At the core of concern to the media fraternity is the fear that the government will control and regulate broadcast content and, therefore, decide when to switch off TV and radio stations.

Section 6E of the KICA Bill 2013 seeks to establish a Broadcasting Standards Committee responsible for developing standards for broadcasting content and regulating and monitoring compliance to those standards.

The media fears that this mandate is loosely drafted and could give room for the Communication Commission of Kenya (CCK) to claw back from or contest with the Media Council of Kenya (MCK) the sole mandate of regulating professional standards and ethical content.

According to media observers, the specific section must be removed in its entirety and the Broadcasting Regulations 2009 must be amended to remove ethics related regulations, which are to be transferred to MCK.

Sole preserve of MCK

The media industry wants a clear distinction between the regulation of the broadcast content undertaken by CCK or its successor within the ambit of the broadcasting code and the regulation of ethics undertaken by the Media Council of Kenya within the Code of Conduct for the practice of journalism.

The media fraternity, among them the Media Owners Association, Kenya Editors’ Guild, Kenya Union of Journalists and Kenya Correspondents Association, want all matters of regulation of professional ethics and the conduct of journalists and media enterprises to be the sole preserve of the Media Council of Kenya.

Freedom of media campaigners like Article 19 Director Henry Maina argue that CCK should, therefore, limit itself to regulation of broadcasting licences and signal distribution to achieve equity.

Said Maina: “The proposed amendments in (KICA) Bill 2013 purport to anchor the CCK as the independent body referred to in Article 34(5) of the constitution. This is an illegality since the Media Council of Kenya is the sole body charged with the mandate to police professional and ethical standards in the media sector.”

Oloo Janak of the Kenya Correspondents Association said: “The matter of the media laws is unfortunate. There are many provisions in that bill as it is now that are not progressive and also appear contradictory — and will conflict with other laws, including that on the current CCK.

“I think parliamentarians need to anticipate mischief in some of the provisions that seek to provide more leverage to government to get more involved in media management. It is dangerous to assume that the government or its officers will be well meaning all the time,” Janak added.

First reading

“The constitution envisages less government influence and of course that of other powerful interest groups. At KCA, we have reservations about a number of provisions and we take the view that the bill should be cognisant of the history of the media and the obtaining operating environment, which cannot be purely legalistic,” Janak said in a statement.

The two proposed laws are before Parliament, with the KICA bill having been read twice after it was presented by the Committee on Energy, Communications and Information chaired by Jamleck Kamau.

The Media Bill has gone through the first reading in the august House and was supposed to go a through second reading last week, but the committee had not submitted its report to Parliament as required by Standing Orders.

The KICA bill has gone through the second reading but has not been discussed because there was no quorum on the floor of the House.

Article 34(5) of the Constitution of Kenya 2010 provides that Parliament shall enact legislation that provides for the establishment of a body which shall-

(a) Be independent of control by government, political interests or commercial interests;

(b) Reflect the interests of all sections of society; and

(c) Set media standards and regulate and monitor compliance with those standards.

On August 13, this year, Parliament carried an advertisement in the local dailies calling for comments on the Media Bill to be submitted to the Clerk of the National Assembly within seven days.

The advertisement further provided that after the submissions, the parliamentary committee would organise a public forum to which the public would be invited to submit comments on the bill.

The Media Council of Kenya went ahead and submitted its memorandum for MPs’ consideration. The memo, signed and delivered by MCK chair Joseph Odindo, raised concerns over the immense powers the Cabinet Secretary for Information, Communication and Technology, in this case Dr Fred Matiang’i, would wield over the composition of the Media Council.

Complete control

MCK, which is an independent national institution as established by the Media Act, 2007, has been the leading institution in the regulation of the media, media enterprises and in the conduct and discipline of journalists in Kenya.

It has a wide mandate, among other things, to register and accredit journalists, register media establishments, handle complaints from the public and create/publish yearly media audits on media freedom in Kenya, enforce professional standards by ensuring that journalists adhere to the Code of Conduct and Practice of Journalism in Kenya, which was created by media practitioners and stakeholders with a view to making journalism in Kenya a more professional and respectable field.

In the proposed laws, Section 8(2) on the appointment of the members of the council, the Cabinet Secretary would have full, firm and complete control of the recruitment process.

The MCK memorandum complained that the Cabinet Secretary would provide the selection panel with resources and facilities to carry out their recruitment mandate, and would have discretionary powers to appoint members directly from a list forwarded by the selection panel.

The CS would also enjoy unchallenged veto powers to reject names forwarded by the selection panel hence be unconstitutional, as it offends Article 34(5) of the constitution that requires that MCK be a body independent of control by government.

The MCK submission called for entrenchment of independence of the media council. MCK members ought to be elected by their respective stakeholder bodies that will forward names to the Cabinet Secretary.

Seven-member council

While the bill in its current form proposes a council of seven members, the media industry has proposed a 13-person strong membership drawn from the Kenya Union of Journalists, Media Owners Association, Law Society of Kenya, Editors’ Guild of Kenya, two people of opposite gender representing schools of journalism and media studies of recognised universities, one from public and the other from private universities.

Stakeholders also proposed one person elected by the Kenya Correspondents Association, Public Relations Society of Kenya, a nominee from recognised middle level colleges teaching journalism and media studies.

The committee would also have a representative from the Ministry of Information, Communications and Technology and one each from Fida and the Kenya National Commission on Human Rights.

The members would then meet to elect their chair and vice, who must be of opposite gender.