Ephraim Percy Kenyanito

International Trade, Technology, Media & Telecommunications Law.

Lets get real about Kenyan Media Laws

In Law School, we are taught to be objective in our analysis of issues and this is my intention in this article. Despite my major life-changing interactions with the Kenyan Media industry throughout my current period in Law School; I am not going to start by saying that Kenyan Media needs to be “guaranteed more freedom of speech by the Kenyan Government.” In fact, I am going to start by pointing out that Irresponsible journalism is rife in Kenya, and that you can see more illustrations on these articles: “The Ills on Kenyan Radio Stations“, “Nation Media Attacked For Its Sunday Nation Cover Photo“, and it is also interesting to point out that the ICC has issued an arrest warrant for Kenyan Journalist Walter Barasa and also that Kenyan Journalists exposed ICC witness sometime in 2013 including the fact that Kenyan media exposed Kenyan Undercover Security agents to terrorists.

We have to look keenly at the historical background to Kenyan Media practice and I will start at 2013 (though the history is way much longer). Kenyan media started by practising self-censorship over Kenya’s 2013 election and I remember having a conversation with my dad on my disappointment but then he reasoned with me on the need of the Kenyan Media to prevent incitement, to ensure national security and all the arguments that are always fronted as reasons for self-censorship.

Coincidentally, in 2013 there were new laws in Kenya which made many Kenyans happy as this was thought to root out unethical journalism Practices, I will look at only the contentious issues in the Kenya Information and Communications Act Ammendment Bill 2013 and the Media Council Bill 2013.

1. Kenya Information and Communications Act amendment (KICA) Bill 2013

Lets start by looking at Section 6E of the Kenya Information and Communications Act amendment (KICA) Bill 2013 that seeks to establish a Broadcasting Standards Committee responsible for developing standards for broadcasting content and regulating and monitoring compliance to those standards. With the KICA Bill, there are also other unreported new developments such as “the slow but increasing expansion of the regulatory oversight over the management of critical Internet Resources – such as the Internet Protocol Numbers (IP), Internet eXchange Points (IXPs), Internet Domain names.”  I would term this as prior restraint . The effects of this will create chilling effects.

Let me be clear, I do not attempt to say that freedom of speech and of the media is absolute as there is a 3 part test ((i) be provided by law, (ii) pursue a legitimate aim, and (iii) be necessary in a democratic society, in order to be permissible under Customary International Law.

This has been extensively discussed under: the European Court of Human Rights (The Sunday Times v United Kingdom (App no 6538/74) ECHR 26 April 1979) of the European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR)) , Inter-American Court of Human Rights ,( Compulsory Membership in an Association Prescribed by law for the Practice of Journalism (Articles 13 and 29 of the American Convention on Human Rights), Advisory Opinion OC- 585, Inter-American Court of Human Rights Series A No 5 (13 November 1985) (IACHR))  African Court of Human and Peoples Rights,( Media Rights Agenda and Others v Nigeria (Comm nos. 105/93, 128/94, 130/94 and 152/96) African Commission on Human and People’s Rights (1998) (ACHPR))  and the Human Rights Committee (Womah Mukong v Cameroon, Comm no 458/1991, U.N. Doc. CCPR/C/51/D/458/1991 (1994) (HRC))  of the Iinternational Covenanct on Civil and Political Rights. (International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR)).

In my opinion many provisions of this law do not fullfill the 3 part test and will threaten press freedom in Kenya. This law also moves Kenyan media away from self-regulation. Self-regulation can be counted as part of Customary International Law and International Media Best Practices. Interestingly, Kenyan Parliament also passed a Law which establishes a self-regulatory mechanism for the media but puts a government-controlled tribunal on top of it. (READ: House adopts Uhuru’s proposals on media Bill)

Hefty fines Imposed

The government-appointed tribunal has powers to fine media houses to the tune of KSH 2 million (US$23,310) and journalists up to KSH 500,000 (US$5,827). In Customary International Law, There must be a corresponding ‘pressing social need’ (Lindon, Otchakovsky-Laurens and July v France (Apps nos 21279/02 and 36448/02) 22
October 2007) for restrictions to be held valid. Reasons for restrictions should also be ‘relevant and sufficient’ and that any restriction ‘must be proportionate to its aim.’ (Chauvy and Others v. France (App no 6491/01) ECHR 29 June 2004).

Though the Kenyan media has had wrong actions I do believe that levying US$5,827 to a correspondent will be killing a rat by burning a house, this will open up the media industry only to rich individuals who can afford.

2. Media Council of Kenya Bill 2013

Regulation of Internet End-Users

In the Media Council of Kenya Bill of 2013,the definition of “journalist” is “any person who engages in the practice of journalism,” while that of “journalism” is “the collecting, writing, editing and presenting of news or news articles in newspapers and magazines, radio and television broadcasts, in the internet or any other manner as may be prescribed.” Finally, the definition of “publication” is “the dissemination to the public of any written, audio or video material, and includes materials disseminated through the internet.”

As per the Media Act of 2007 definition, where “journalist” was any person “who holds a diploma or a degree in mass communication from a recognized institution of higher learning and is recognized as such by the Council, or any other person who was practicing as a journalist immediately before the commencement by the Council, and earns a living from the practice of journalism, or any person who habitually engages in the practice of journalism and is recognized as such by the Council.”

In my opinion, the new 2013 Kenyan Law will is vague and in contravention with Customary International Law, I refer to The Sunday Times v The United Kingdom where the Eurpean Court of Human Rights stated that the law must be of ‘sufficient precision to enable the citizen to regulate his conduct.’ The new law aspires to regard all Internet-End users as journalists, especially where one could be sharing links of news articles or blogs and is thus refered to as a journalist. I am happy that Kenyan are now realizing the meaning of these provisions.

Call to action

I conclude by stating that as we await court determination on the validity of the new Kenyan law, lets only hope that the media will take the rightful place in the society where we belong.

2 thoughts on “Lets get real about Kenyan Media Laws

  1. to the point. the media should not be exempted from civilization on the ground of right to freedom of speech.

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