New media laws must meet international standard, ARTICLE 19 says
ARTICLE 19, who has a regional East Africa office in Nairobi, has regularly commented on a number of Kenyan draft and adopted legislation relating to freedom of expression and freedom of media, including the 2010 Constitution, various laws regulating hate speech in 2010 or the 2010 Kenya Communications (Broadcasting) Regulations.
The first draft law, the Media Bill, seeks to amend the existing 2007 Law that stirred some controversy at the time of its promulgation, as it resulted in the voluntary Media Council of Kenya becoming a statutory body with a broad media mandate. The amendments contained in the Media Bill seek to align the Media Council's functioning with the 2010 Constitution of Kenya and in particular with its provisions on freedom of expression and freedom of the media. Although limited in scope, the proposed changes are not insignificant as they will substantially overhaul the appointment's process for members of the Council.
In the analysis, ARTICLE 19 considers the Media Bill in its entirety, including both the amendments and those provisions which would remain unchanged under the proposal. On the one hand, we express significant reservations about the concept of statutory regulation of media ethics and standards. On the other hand, the analysis finds the Media Bill will provide substantial safeguards of the Council's independence, as well as other positive features including a Code of Ethics which is largely compatible with international standards. A number of provisions do raise concern about the compatibility of the Bill with international law and constitutional protections of freedom of expression.
Independent Communications Commission Bill
The second analysis relates to the Independent Communications Commission of Kenya Bill 2010, which aims to establish a fully independent broadcast regulatory body to replace the existing Communications Commission of Kenya (ICCK) in all of its functions. This reform is necessitated by new provisions introduced into the new Constitution in 2010. ARTICLE 19 welcomes and supports the initiative to establish a genuinely independent communications regulator. One of the key implications of the right to freedom of expression as guaranteed in international law is that broadcast regulation should be overseen by bodies which are independent, in the sense that they are protected against political or commercial interference. The new provisions in the Constitution signal Kenya's commitment to bring itself in line with international law in this area. ARTICLE 19 analyses consider whether the ICCK Bill indeed gives proper effect to the constitutional and international requirement of independence. Overall, our assessment is positive, although some provisions give rise to concern.
In both analyses, ARTICLE 19 provides specific recommendations on how our concerns should be addressed. We urge the Kenyan legislators to consider these recommendations when producing the final text of the Bills and make sure that both Bills meet international standards in respective areas.