Why Government Advertising Agency was doomed to fail

What you need to know:

  • The Constitution states that media licensing procedures should be “independent of control by government, political interests or commercial interests.

  • The Executive cannot purport to appropriate the role of restructuring of advertisement regulation.
  • As such, however well-meaning the new public advertising regime may have been, the GAA’s legal architecture initiation was not the province of the executive.

Even as President Uhuru Kenyatta leads an assault on corruption, a seemingly new problem has been added to his anti-sleaze campaign. Reportedly, the ICT ministry owes media organisations up to Sh2.5 billion, with fingers pointed at corrupt dealings in the ministry. The matter is serious enough to have invited the intervention of Directorate of Criminal Investigations (DCI) and the parliamentary Committee on Communication, Information and Innovation.

With hindsight, the failure of the ICT ministry to pay media houses for advertising services rendered was a disaster waiting to happen from the very beginning.

NEW ORDER

In July 2015, the government launched the Government Advertising Agency (GAA) on the premise that government advertisement had been previously done without proper policy guidelines. To give the new thinking a semblance of “policy”, documents were produced: The New Way of GoK Buying, Treasury Circular No.09/2015 of July 10 2015 on Centralization of Public Sector Advertisement and the Government Advertising Agency: Rules and Guidelines.

Collectively, these policy documents painted a picture of new order and efficiency where supposed chaos, wastage and corruption in government advertising reigned. The intent was the consolidation of the processing, authorising and publishing of public sector advertisements on behalf of all public procuring entities. It now appears that the promise of new order has come back to haunt the government. The top echelons in the ICT ministry were reconfigured, mechanisms for media planning and buying of ads spend put in place and the government information portal, My.Gov.go.ke, re-engineered.

CUT AND PASTE

Nearly three years to the date, the would-be revolutionary plan has unruffled badly. The first point of note is that the documents that rationalised the launch of the GAA give the impression that the entity was launched rather hastily. For instance, a huge discrepancy is that the crucial practical document, the Government Advertising Agency: Rules and Guidelines, is undated! Further evidence can be seen in some glaring linguistic mistakes and errors and a general picture of a “cut and paste” composition. More significantly, the documents are not aligned to other government policy documents including the ministry’s own policy and strategy documents! For instance, no mention is made of the fact that the Public Procurement Oversight Authority (PPOA) Act 2005 stipulates how tender advertisements should be done.

Some of the factors that impelled the ministry to launch GAA might have been warranted. The big question is whether the approach whereby the ministry converted itself into an advertising clearing house — directly involved in media planning and buying — was prudent.

TRANSPARENCY

A related question is whether the ministry should concentrate on its core function of regulating the media industry or also actively partake of the policy it formulates for the sector? Evidence now confirms that the government’s decision to take over and indeed displace the role of advertising agencies was bound to fail, especially on the transparency and accountability fronts.

Things might have taken a better turn had the ministry sought views, not just from all government agencies, but from most of the stakeholders who would be impacted. Stakeholder involvement seems to have been glossed over in view of the hue and cry that greeted GAA’s launch from mainstream media and sections of the advertisement industry. Grumblings were also heard from some government entities.

NOT CONSULTED

The broad inclusivity requirement contemplated in relevant sections of the constitution seem to have been set aside, with interest groups such as the Advertising Practitioners Association, Media Owners Association, Kenya Union of Journalists, Media Council of Kenya, Marketing Society of Kenya and Public Relations Society of Kenya not consulted.

Indeed, organisations such as the Consumer Federation of Kenya (Cofek) should have been included given that one of GAA’s objectives was to sharpen audience targeting as means of serving the media consumption habits of Kenyans better.

SH7 BILLION

The creation of the GAA restructured the ministry in a substantial way. Although GAA has the hallmarks of a state corporation, it was structured to perform as a unit within the relevant department in the ministry. Because of its financial heft (estimated at Sh7 billion in 2015), the people charged with policy and operational responsibilities at the GAA became crucial cogs in the public service advertising wheels. These are the government officers with whom stakeholders would have to engage, ideally on a day-to-day basis. Questions therefore arise as to the process leading to the creation of the new structures within the ministry and how they were aligned to existing advertising functions, for instance, as stated in the Public Procurement Oversight Authority Act.

LACK DETAIL

These issues, in fact, raise constitutional questions. The GAA launch documents clarify the positions, roles and responsibilities of officers in the ministry. However, the structures come across as lacking in detail and removed from the overall structure of the ministry itself and the government at large. Information on how the GAA officers would link with the media is at best scanty. Greater effort could have been given to the alignment of the GAA within and without government to avoid situations of second-guessing. This is indeed one of the major lines of investigation that the DCI and the parliamentary committee should pursue.

STIFLING MEDIA

An interpretation of Chapter Four, clauses 34 and 35, of the Constitution suggests that the establishment of the GAA gave the ministry undue “control over or interfere(nce) with… broadcasting, the production or circulation of any publication”. With speculation rife at the time of its formation that the new advertising regime would target media houses critical of the government and the ruling coalition, a constitutional question of covert intent on penalising and stifling sections of the media to hem them in may arise. In other words, the GAA had the nefarious intention of stifling freedom of expression by surreptitiously drying up the funding that allows private media to play their oversight role in the Kenyan democracy.

NEFARIOUS

Further, the Constitution states that media licensing procedures should be “independent of control by government, political interests or commercial interests”, which was at variance with the establishment of the GAA. Indeed, the Constitution is clear about the setting up of a body (such as the Media Council of Kenya) to “set media standards and regulate and monitor compliance with those standards”. This function is given to parliament which is anticipated to “enact legislation”. This can be interpreted widely to include not just journalistic media content but also other content such as advertisements. Further, it can be interpreted that the executive (read ICT ministry and National Treasury) cannot purport to appropriate the role of restructuring of advertisement regulation — parliament in consultation with stakeholders is the right organ in these respects. In similar light, Chapter Four, clause 46, gives Parliament the role of “enact(ing) legislation to provide for consumer protection”. As such, however well-meaning the new public advertising regime may have been, the GAA’s legal architecture initiation was not the province of the executive.

To be continued Monday.

Dr Wekesa is a senior lecturer in the Department of Journalism and Media Studies, University of the Witwatersrand, South Africa: [email protected]