The Kenya Information & Communications (Amendment) Bill, 2013 was passed by the National Assembly on Thursday after some amendments from the floor and to which the public had not previously been made aware.
Unless the President declines to assent to the Bill for the reasons permitted under the Constitution, it will become law shortly.
There have been objections, mainly from media enterprises and practitioners, on the effects of this law. It may be tempting to conclude that journalists and media enterprises’ objections are merely the complaints of a rogue industry that does not wish to be regulated — as the persons behind the Bill may want to put it.
The truth, however, is that although media practitioners and enterprises will be the ones hardest hit in the immediate enactment of the Bill, the whole country will be much the worse after the full effects roll out.
In saying this, I take as my guide the fact that media freedom in any country is but a right held in trust for the larger community or nation.
The freedom of the media is really an adjunct to the right of expression and the media therefore is merely the avenue through which the expressions of the citizenry are channelled. As it were, the media is really the marketplace at which ideas, information and views are exchanged. Any hindrances to this channel is ultimately a blockade on the country’s right and freedom to express itself.
The Constitution speaks as loudly as can be about the freedom of the media when it states that this is guaranteed. It then goes on to say the “state” that is government and its agencies should not control or strive to control any media. Thirdly, it states the regulator of the media ought to be independent of political and commercial interests. This triple-helix protection is in jeopardy if the Bill were to become law in the form the National Assembly passed it.
The main objections against the Bill as originally drafted and as amended by the National Assembly are in relation to the powers of the Cabinet Secretary. This Government functionary and member of the Executive is permitted to control the media both directly and indirectly, contrary to internationally accepted good practice of self-regulation and, even more so, contrary to the freedom of media as contained in the Constitution of Kenya. (READ: Uhuru must say NO to architects of repression)
The concern here is that the Bill gives exclusive power to the Cabinet Secretary for Communications and Information to appoint members of the board of the proposed regulator to replace the Communications Commission of Kenya.
The Cabinet Secretary may also initiate the removal of the board members or extend the tenure of a member. The chairperson of the board is to be appointed by the President on the recommendation of the Cabinet Secretary.
Granted, there is provision for their vetting by the National Assembly but this, in my view, actually adds to the political dimension rather than dilute it. It is therefore not unreasonable to contend that the board is likely to operate as a censorship agency for the Government rather than a defender of media freedom.
The biggest surprise in the Bill is the establishment of a new agency known as the Communications and Media Appeals Tribunal. This was not in the gazetted version of the Bill and was introduced on the floor of the House during its third reading.
The tribunal is empowered to determine complaints and disputes, including complaints by the media against the Government. This is evidently meant to replace the Media Council Complaints Commission established under the Media Act,2007.
Though the chairperson will be nominated by the Judicial Service Commission, its members are to be appointed by the Cabinet Secretary from a list submitted by a panel established and appointed by the Cabinet Secretary. The Cabinet Secretary has powers to reject any nominee proposed by the panel and insist on an acceptable replacement.
The fact that the tribunal is appointed by a Government functionary makes it unlikely that it will be fair and independent of government, especially where the State has an interest in a case.
The tribunal will have the following powers in entertaining complaints against the media:
- Consider oral or anonymous complaints against media; How would a media house respondent answer charges against an anonymous claim. This is a clear violation of the basic rights of natural justice of confronting your accuser in public, leave alone the fact that it is an unconstitutional denial of the right to due process and fair administration.
- Order media enterprises to publish its decisions in any manner it wishes. In other words, this tribunal is to have the power to compel media to grant it free coverage of its proceedings and publish advertisements of its decisions without editorial oversight of the media concerned and possibly at no cost.
- Fine media enterprises found guilty of professional misconduct up to Sh20 million and a journalist Sh1 million.
The fines are extremely high for the kind of issues that would be the subject of the tribunal’s jurisdiction. In fact, there is no other law which empowers any authority to levy a fine of Sh20 million for failure to adhere to a professional ethic or standard.
In fact, there is no offence (civil or criminal) in Kenya’s statute books for which the law levies a fine of such inordinate amounts!
The only exception would be for drugs offences which are, in any case, criminal. This is a clear indication that media enterprises are targeted for punitive financial sanctions.
The public must imagine what kind of animus would lead to a law that a journalist who fails to adhere to the Code of Conduct that he must offer any person the right to reply to any accusations made against him anonymously should have to pay Sh1 million.
The power to withdraw any journalist’s accreditation is the ultimate sanction that can be visited upon any professional. A tribunal is empowered to make this kind of order upon an anonymous complaint that a journalist is guilty of professional misconduct, which could be something like simply failing to separate the facts from opinion in a story and designate them as such, contrary to the Code of Ethics.
I do not know of any other profession that faces this kind of peril of prohibition, not from professional peers but from a tribunal which does not have to include even one journalist in its composition.
The Bill has also included a mandatory requirement for all broadcast outlets (television and radio) to ensure that at least 60 per cent of their content is “local”. The word “local” is not defined anywhere in the law and will therefore be contentious.
This is an attempt at interference with the independence of the media by trying to dictate their content.
The unconstitutionality of this aside, I would want to ask what angst anyone would raise by establishing a sports channel that exclusively broadcasts English Premier League matches or Formula One races, for example. Someone seems keen on being an information commissar.
Mr Owino is head of legal services, Nation Media Group.