Broadcasting rules: Media failed to regulate itself

As the broadcasting regulations take effect, it is becoming increasingly clear that media owners and those advocating for self-regulation have squandered yet another opportunity to play a constructive role in creating the legal environment in which vibrant media thrive.

This has happened because the electronic media has taken things for granted for too long in the false belief that the government can be intimidated into adopting a hands-off approach. This weapon has been used very effectively since the liberalisation of the broadcasting industry began in the 1990s.

One does not have to be a government apologist to point out that the broadcast media needs to change strategy in order to adapt to the changed legal environment in which it has to operate.

Until the regulations in question are revoked — if they ever will be — they should be informed that operating in a legal vacuum is a thing of the past.

The situation in which the industry finds itself following the recent gazettement of the Broadcasting Regulations reminds me of attempts which have been made in the past to convince the privately-owned broadcasting stations to adhere to universally accepted ethical standards essential in moulding a fragile developing nation like Kenya.

The current stand-off provides clear proof that the industry has ignored such appeals as demonstrated by their broadcast content and programme scheduling, to mention just two obvious examples.

I have been privileged to work under a number of ministers and permanent secretaries, who have tried over the years to get broadcast media to regulate themselves and to understand that government has a duty to step in if the industry fails.

This is the message former minister Johnstone Makau delivered to a team formed by Attorney-General Amos Wako, to prepare the Broadcasting Authority Bill (1996) which the media eventually shot down, arguing it was draconian.

As pointed out above, there have been numerous attempts to bring some sanity into the industry, but these may not get a mention due to lack of space.

However, the effort made in 2004 by then Tourism and Information minister Raphael Tuju deserves special treatment because of its objectives and how the media reacted.

It is recalled that the minister set up a sort of Broadcasting Advisory Panel and appointed Mr Maina Kiai, to chair it. I was the secretary. The panel’s membership included my successor at the Department of Information, Mr Ezekiel Mutua, representing the Kenya Union of Journalists.

Our mandate included reviewing the use of inappropriate language and lack of professionalism in the broadcast media, particularly FM stations.

Mr Tuju had received written and oral complaints about declining ethical standards in the industry and he intended to raise the matter in Cabinet. The complaints had come from all quarters, including parents and religious leaders.

Among those who had complained was a retired archbishop of a leading church, who had even urged the government to ban such stations if their presenters could not conduct themselves responsibly.

Predictably, the media never gave the Broadcasting Advisory Panel an opportunity to proceed with any meaningful work, as it incited its representatives, including the chief executive of a leading media house, to walk out and leave us without any quorum.

The minister eventually disbanded the panel after realising the media did not want to be party to any panel which would question its (mis)conduct.

The dismissive approach by the industry has continued with the Media Owners Association spearheading the government-bashing campaign whenever there is any hint of intervention.

The fact that they have been very successful in blunting previous attempts may have blinded them to an extent that they hardly see any need for constructive engagement with the government to see if their concerns can be accommodated.

Instead, the Media Owners Association has resorted to ridiculing any government official they associate with legislation intended to curtail their excesses.

Incidentally, section 46K of the Kenya Communications (Amendment) Act, which empowers the Minister for Information to make regulations on broadcasting does not require him to seek the approval of the industry; it specifically states that the minister only needs to consult the Communication Commission of Kenya. Period.

There are no other stakeholders, including MOA or the Editors Guild, whose approval is required before the regulations can be made. It is surprising that this point has not been highlighted by the media, though this law has been in force since December 30, 2008.

Few can dispute that the industry has squandered another opportunity to help create a media-friendly law that would safeguard the public interest while ensuring that press freedom is protected.

And they should be aware that because of their failure to protect public morals and reluctance to promote professionalism, they should not expect much sympathy from the public.

I appeal to MOA and those advocating self-regulation to appreciate that Kenya cannot remain an island of unregulated broadcasting industry when all nations around us have seen the need to put in place appropriate laws to govern the use of a very limited natural resource, the Frequency Spectrum.

Mr Opiyo is a media consultant and an advocate of the High Court of Kenya. He is a former director of Information and Public Communication.