ARTICLE 19 is deeply concerned about the new media landscape in Kenya following the passage of two laws by the National Assembly on 5 December 2013. The effect of these laws is seriously damaging for the media and the right to freedom of expression in the country as the changes introduce undue state interference in media regulation. ARTICLE 19 calls on the Kenyan Government to urgently review these laws and ensure they are amended in order to comply with international freedom of expression standards.
“The media laws passed by the National Assembly are unconstitutional as they fail to ensure that media bodies are free from government, commercial or political control and interference. These laws must not be allowed to be put into practice. Media freedom in Kenya will be seriously damaged if these laws are not reviewed. Their review should look to progressive global practices to ensure the best possible protection for the right to freedom of expression,” said Henry Maina, Director ARTICLE 19 Eastern Africa.
Two bills were passed in the National Assembly on 5 December:
The Kenya Information Communication (Amendment) Bill (KICA Bill) 2013 creates a Communication and Multimedia Appeals Tribunal, which falls under the state controlled Communication Authority. The Tribunal will have power to impose hefty fines on media houses and journalists, recommend de-registration of journalists and make any order on freedom of expression. This bill was passed with the retrogressive proposals of a presidential memo submitted to Parliament following the president's decline to assent the initial version of this bill.
The Media Council Bill 2013 establishes the Media Council of Kenya, in order to promote and safeguard media freedoms in the country and establishes the Media Council's Complaints Commission.
ARTICLE 19 is concerned about these laws for the following reasons:
- They grant power to the state to control broadcast media regulation by creating executive discretion over appointments to the Board of the Communication Authority, which will regulate the broadcast and telecommunications sector. The Cabinet Secretary is given a choice of candidates from which to select the final appointees. The proposed provision by stakeholders was to establish a broadly constituted panel in order to select the final appointees for formal appointment by the Cabinet Secretary;
- They create punitive penalties for media outlets and journalists contrary to recognised regional and international standards. These penalties are fines in the amount of over $200,000 for media outlets and close to $6,000 for individual journalists who breached provisions the KICA Bill;
- They undermine the independence of the Complaints Commission of the Media Council of Kenya by giving the state controlled Multimedia and Communications Tribunal jurisdiction to hear appeals from the Complaints Commission of the Media Council of Kenya;
- They create unjustifiable restrictions on the practice of journalism by prescribing minimal educational standards in order to qualify as a journalist;
- They allow legislators to revise the code of conduct of journalists via the inclusion of the Journalists Code of Conduct as part of the law.
ARTICLE 19 notes that while there are a number of serious concerns about the new legislation, the laws do offer limited gains. We are pleased to note that an amendment has been introduced to ensure the independent appointment of members of the Media Council of Kenya. The role of the executive is now limited to merely formalising appointments to the Media Council, as opposed to previous provisions that gave the executive the ultimate decision for selecting members of the Council.