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Communications regulations require significant amendments, says ARTICLE 19

(ARTICLE 19/IFEX) - 23 November 2009 - ARTICLE 19 has analysed two draft communications regulations that are currently being discussed by the Kenyan government. The Broadcasting Regulation and the Radio Communications and Frequency Regulation implement the Kenyan Communications Act 1998, as amended in 2009. ARTICLE 19 welcomes the government's intentions with these regulations but calls on them to improve the proposals in order to ensure that they comply with international standards.

The Broadcasting Regulation governs the exercise of the Communications Commission of Kenya's licensing powers to set out rules for broadcast content and to establish a mechanism to enforce those rules. The Radio Communications and Frequency Regulation (RCF) sets out how the Commission will administer the frequency spectrum through the issuance of radio communication licences and the enforcement of rules designed to prevent harmful interference. The two sets of regulations will play a key part in shaping the future of radio and television in Kenya.

ARTICLE 19 commends the Kenyan government's willingness to tackle the problem of undue media concentration brought about by the haphazard manner of distributing frequencies. Other strengths of the proposals include the adoption of a 'one license' rule and self-regulation as the principle dispute resolution mechanism. The progressive definition of 'community broadcasting' is welcomed, as are steps to establish the Kenya Broadcasting Corporation (KBC) as a genuine modern public service broadcaster. However, these strengths are undermined by serious shortcomings in both sets of regulations. The Kenyan Government must substantially revise these regulations so that they meet international standards and ensure freedom of expression and media diversity are integral to safeguarding democracy.

The rules regarding content are the most problematic element of the Broadcasting Regulation proposal and fall well short of what may be expected in a democracy. To the same end, the Communications Commission should not have the power to prescribe the broadcasting of "discussions on matters of national importance" nor should "promotion of the Kenyan Government policy objectives" constitute part of the RCF Regulation objectives.

The regulations lack any clear strategy for how changes will be implemented and objectives achieved. The Communications Commission must develop a frequency plan, implementation strategy and time-frame for how broadcasting frequencies in Kenya will be shared equitably and in the public interest. The application process for frequencies must be open and fair, detailing the exact documentation required. Special consideration should be given to the unique position of community broadcasters. The 'single licence' rule must be improved so that it is explicit that a person cannot control, directly or indirectly, more than one licence. Limits should also be placed on the total audience level one licensee may reach and the level of permissible cross-ownership between newspapers and broadcast outlets.

It is noted that the desirable transformation of the KBC into a modern public service broadcaster would require an overhaul of the entire KBC Act.

Several key proposals require clarification in order to comply with international standards. For example, a clear distinction should be made between the criteria according to which licence applications are assessed and the conditions subject to which licences are granted.

The sanctions available to the Communications Commission to impose must be proportionate and applied in a graduated manner. The Communications Commission should not have the power to impose prison sentences on any individual.

ARTICLE 19 calls on the Kenyan Ministry of Information and Communications and the Communications Commission of Kenya to implement the changes recommended by ARTICLE 19 and make sure that new versions are fully in line with international standards to freedom of expression.

To view the memorandum on the Kenya Communications (Broadcasting) Regulations,
memorandum-on-the-kenya-communications-broadcasting-regulations-2009.pdf (507 KB)

To view the memorandum on the Kenya Communications (Radio Communications and Frequency) Recommendations,
memorandum-on-the-kenya-communications-radio-communications-and-frequency-re.pdf (352 KB)

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