President retains punitive fines against media in new law

By Alphonce Shiundu

Kenya: President Uhuru Kenyatta has rejected the media industry’s pleas to have punitive fi nes against journalists and media houses dropped from a contentious Bill.

In his memorandum to the National Assembly, the Head of State has maintained the fi nes against media houses at a maximum Sh20 million, but capped the penalty on journalists who break the law at Sh500,000.

Uhuru also left untouched the powers of the tribunal to recommend deregistration of journalists.

He also left intact the sweeping powers of the tribunal to “make any supplementary or ancillary orders or directions that it may consider necessary for carrying into effect orders or directives made”.

The only reprieve is that the President has recommended the fines not be considered “recoverable as a debt” thereby limiting the tribunal’s powers to freeze bank accounts or auction the assets of media houses just to ensure the fines are paid.

The financial penalties will also be paid to the Communications and Multimedia Appeals Tribunal and not the aggrieved party as the MPs had proposed. Uhuru has also made recommendations that fines should not be imposed for breaching the Code of Conduct.

“The Code of Conduct deals with ethical issues and matters relating to misconduct in relation to media practitioners and may not, therefore, require penal consequences. Such matters are dealt with in disciplinary or other similar processes,” said Uhuru in his memo on the Kenya Information and Communications (Amendment) Bill, 2013. The memo bears his signature.

The Parliamentary Committee on Energy, Communication and Information will discuss Uhuru’s proposals at a meeting today at 10am in Parliament Buildings.

On the plus side, Uhuru removed the requirement that media houses should broadcast 45 per cent local content and recommended that a new limit be set by the Communications Authority of Kenya. The President has also removed the MPs’ proposal that broadcasting of local content be between 6am and 10pm.

“As the entity envisaged under Article 34 (of the Constitution), the authority is the institution best-placed to regulate content as opposed to statutory prescription by the National Assembly,” the President said.

Uhuru submitted the memorandum to the MPs in a letter dated November 27, signed by his Chief of Staff Joseph Kinyua and copied to Attorney General Githu Muigai, his senior advisor on constitutional affairs, Abdikadir Mohamed, and the Clerk of the National Assembly, Justin Bundi.

Policy guidelines

The President has also reinstated a clause to give the Cabinet Secretary of Information and Communication, Fred Matiang’i, the power to “issue policy guidelines of a general nature” to the Communications Authority of Kenya.

MPs had dropped the clause because they said it would give the Cabinet Secretary extra powers to determine the fate of the broadcast and telecommunications industry.

But the President says the clause has to be retained because the powers of setting policy on communications and information issues are laid out in the Fourth Schedule of the Constitution, and they belong to the Cabinet Secretary.

He has also denied MPs the power to vet appointees to the Communications Authority of Kenya, the body that will replace the Communications Commission of Kenya, and has instead expanded the selection panel.

The panel to pick the members of the authority will have representatives from the Media Council of Kenya, the Kenya Private Sector Alliance, the Law Society of Kenya, the Institute of Engineers of Kenya, the Public Relations Society of Kenya, the Kenya National Union of Teachers, Consumers Federation of Kenya and the Ministry of Communication and Information.

The President and the Cabinet Secretary will have the final say on who will be appointed, because the selection panel will send three names to the President for chairperson; and two names for each slot as a member of the authority’s board.

The President has also told MPs they have no business vetting the authority’s board members ahead of their reappointment. He has deleted the proposal from MPs and told them that because they were not involved in the appointment of the board members, it was “superfluous” for them to intervene in the reappointment of the board members for their second term of three years.

“This requirement of vetting by the National Assembly interferes with the discretionary powers of the appointing authority in renewing the term of appointment of the chairperson or members of the board of the authority,” said the President.

He said if MPs are allowed to have a say in the reappointment, they will “fetter the independence of the authority”.

Speaker Justin Muturi told the MPs they would need a majority of 233 MPs – two-thirds of the membership of the National Assembly – to reject the President’s proposals. He told the MPs that they couldn’t reopen the Bill for amendments.

“(You) only handle those matters that have been referred to (you) for consideration. Only amendments to specific clauses being reconsidered shall be entertained,” said Muturi.

The MPs approved the Bill on October 31.