Laws negate self-regulation of media

The government has complained to the Media Council’s Complaints Commission over alleged defamation by two of the products of Nation Media Group — Business Daily and NTV.

The alleged defamation arises from their coverage of the misuse of funds at the Ministry of Health.

The government has admitted that money is unaccounted for, amounting to more than Sh3 billion, but denied that Sh5 billion was misused, as reported by all media houses.

It is interesting that the government has decided to pick on only the Nation Media Group.

However, that is not the point of this article.

My focus is the way the government presented its case and how Parliament has continually passed laws that made the media susceptible to assault by those they cover, including the government.

Mr Joe Mucheru, the Cabinet secretary for Information and Communications, who filed the complaint, deviated from the point.

By claiming that Nation Media Group was paid some of the money in question, he diverted into pettiness and tried to intimidate the organisation.

At the same time, he, perhaps unknowingly, confirmed that money was wasted at the Ministry of Health.

However, the Nation Media Group has clarified that the company that the minister claims received the payment does not belong to it.

The Media Council of Kenya was established under the Media Council Act of 2013.

The council’s mandate is to “facilitate resolution of disputes between the government and the media and between the public and the media, and intramedia”.

PENALTIES
The Media Council Act 2013 replaced the Media Act 2007, which mandated the council to “mediate or arbitrate in disputes between the government and the media, between the public and the media, and intramedia”.

It is worth noting that the council established under the Media Act 2007 was envisaged to be a self-regulatory body for the media and successfully arbitrated complaints.

The new law gave the council other roles that eclipsed its main one of self-regulation of the media.

Apart from taking away the powers of the Media Council of Kenya through this legislation, another legislation — the Kenya Information and Communication (Amendment) Act 2013 — establishes the Communications and Multimedia Appeals Tribunal, which contradicts the envisaged roles of a self-regulatory body.

The mandate of the tribunal is to hear appeals of aggrieved parties who are dissatisfied with the ruling of the Media Council’s Complaints Commission.

Whereas the commission is headed by a person who has held a judicial office in Kenya or who is an advocate of the High Court of Kenya of not less than 10 years standing, the appeals tribunal is headed by a person qualified for appointment as a judge of the High Court of Kenya and who shall also possess experience in communication policy and law.

The implication here is that the tribunal may overrule the supposedly self-regulation commission.

Among the penalties recommended is a fine of Sh20 million on any respondent media enterprise and a fine of Sh500,000 on any journalist adjudged to have violated the law.

Other penalties include the suspension or removal from the register of the journalist involved.

BAD LAWS
The law empowers the Communications Authority of Kenya and the Media Council to pick up a complaint and hand it to the tribunal.

“Without prejudice to the functions of the authority or the Media Council, the authority or the council may take up a complaint on its own initiative and forward the same to the tribunal for determination where in its opinion the complaint has public interest implications.”

With such laws, Kenyans need to keenly watch developments in the matter that Mr Mucheru has brought before the Media Council of Kenya.

These laws have, to say the least, negated the spirit of the Constitution of Kenya 2010, which guarantees freedom of the media.

I hasten to add that media freedom comes with responsibility and media practitioners are well aware of this.

What media scholars and practitioners have always sought to remove is prior restraint by the State.

As John Milton argued back in 1644, freedom of the media leads to attainment of truth through free trade in ideas.

According to him, speech achieves truth and the fewer the restrictions placed upon speech, the more likely it is to discover the truth.

Parliament stands accused of making laws that work against the letter and spirit of the Constitution and ignore the protests of industry players.

Dr Bosire is a lecturer at Technical University of Kenya. [email protected]