A key constitutional commission has termed sections of the new media law passed by Parliament last week as unlawful.
The Commission for the Implementation of the Constitution (CIC) said several clauses in the Kenya Information and Communications (Amendment) bill were unconstitutional.
It said it had written to the President to refer the bill back to Parliament for necessary changes.
“We are of the opinion that the Bill contains provisions which are unconstitutional and if enacted in its current state will inadvertently erode the gains made in the Constitution to ensure freedom of the media,” said CIC chairman Charles Nyachae.
“The CIC has written to the President requesting him to exercise his executive authority and refer the bill back to Parliament for reconsideration in view of the unconstitutional provisions,” he added.
Mr Nyachae however counselled patience among media stakeholders saying it was premature to rush to court to seek legal redress without giving Mr Kenyatta a chance to exercise his executive authority to reject the Bill.
The Kenya Editors Guild and the Kenya Union of Journalists (KUJ) have threatened ‘drastic measures with far reaching consequences’ to protect media freedom, including seeking . redress in court and launching major protests across the country as was done in 2007 when media freedom was threatened.
“It may be a better process to petition the President and only if he assents to the Bill or if Parliament overrides his decision and enact the Bill, that is the right moment to go to court,” Mr Nyachae stated.
The Commission which is charged with overseeing the implementation and adherence to the Constitution said several clauses in the bill contravened Article 34 of the Constitution which guarantees media freedom.
Mr Nyachae reminded MPs that by passing the bill, they had contravened Article 33(2) of the Constitution which expressly provides that the State shall not exercise control over or interfere with any person engaged in broadcasting, production or circulation of any publication or dissemination of information.
He warned MPs that they had also infringed on the constitution by purporting to enact laws that seek to penalize journalists for their opinion or content of their broadcast.
Mr Nyachae was referring to harsh penalties the Bill seeks to impose on journalists who violate the Code of Conduct for Journalists including fines of up to Sh20 million.
The Bill creates the Communications and Multimedia Appeals Tribunal which will handle complaints against the media and have power to “impose a fine of not more than Sh20 million on any respondent media enterprise…adjudged to have violated either that law or the Code of Conduct for the Practice of Journalism.”
It has the power to fine individual journalists “not more than Sh1 million” for violating the same code.
It would also get worse because the fine would be a debt, meaning the person or organisation found to have broken the law would be liable to have his bank accounts raided or their property sold off for misreporting.
The tribunal also has the power to “recommend the suspension or removal from the register of the journalist involved.”