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Government proposes draconian law for regulating media content, says Media Institute

(Media Institute/IFEX) - A new law that, if passed, will allow the Kenyan government to determine the content, style, manner and schedule of broadcasting, has drawn fierce resistance from the media industry.

The Kenya Communications Amendment Bill 2008, which is now in its final stages of the legislative process in Kenya's Parliament, proposes to set up a communications commission appointed by the government to issue licences to broadcasters and a raft of heavy fines and prison sentences for various offences.

The media industry has rejected the law as draconian and retributive for its critical stance on Kenya's intransigent parliament. Compared to other laws in Kenya, the fines prescribed by the bill are generally too high and suggest a discriminatory and vindictive attitude towards the media.

Considering that this law is essentially about the fundamental freedom of expression and opinion, the extreme measures are unwarranted and unjust.

On 1 December 2008, the Media Institute and Kenya Editors Guild called for the bill to be withdrawn to allow for more consultations. The bill seeks to amend the Communications Act of 1998 that was hastily enacted but which has proved hopelessly inadequate in addressing the growth and performance of the broadcast media.

Media Institute's director David Makali said the decision to lump together professional aspects of the media with technical and infrastructural ones was an affront. "Regulation of professional or editorial content should be left to professionally inclined mechanisms of the existing Media Council to encourage both media diversity and pluralism. Furthermore, given this government's track record of relations with the media over the past six years, the media has cause to be apprehensive that the amendments as proposed will seriously curtail media freedom," said Makali.

The Act empowers the minister of information to control and regulate every aspect of communications, including usurping editorial management by prescribing what content should be aired and when, through a draconian coding system.

The Institute has also taken issue with provisions that duplicate the roles already assigned to other institutions by law, such as the Media Act and the Penal Code.

The Editors Guild described as alarming the rush to legislate control of the media while "soft-pedaling on the enactment of companion legislation such as the all-important Freedom of Information Act."

"It is of urgent interest to just governance and the future democracy of the country to legislate free and universal access to information, which is not receiving the necessary attention," said Macharia Gaitho, chairman of the Kenya Editors Guild during a joint press conference with the Eastern Africa Editors Forum and The Media Institute on 1 December.

The bill, now in its third reading stage (of four), is expected to be debated in Parliament this week. It provides for a seven-member commission appointed by the minister, four of whom are top government bureaucrats and a chair appointed by the president. Its functions include issuing broadcasting and ICT licences, ensuring the broadcasts are of good taste, and generally overseeing the ICT sector.

The bill preserves the powers of the minister for information (Section 86) to unilaterally, without recourse to Parliament or the courts, enter, search and seize broadcasting stations and apparatus and telecommunications equipment and dismantle and dispose of such stations and apparatus; intercept and disclose telecommunications between persons and also to intercept, disclose and dispose postal articles, which is an intrusion in privacy.

The bill also gives the information minister powers to "issue policy guidelines" to the "independent" Commission.

Said the Media Institute: "To legislate good taste as a standard upon which a broadcaster can be held criminally liable is both ambitious and ambiguous. Culturally diverse societies such as Kenya do not have a universal value of what is good or abhorrent, and the discretion of the editor, guided by professional ethics and the existing laws on public nuisance and morality is in our view adequate."

The proposed law is potentially beyond the powers of the Constitution of Kenya and the Media Institute has vowed to challenge it in court if enacted without amendments.

In January the government banned live broadcasts after disputed presidential election results triggered violent protests. A political settlement brokered by the African Union set up a coalition government and a timeframe for constitutional reform which is yet to begin.

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