Resolve emerging confusion around media regulation mandate

Journalists during a past event. [Jonah Onyango, Standard]

Over the years, confusion has existed regarding the overlap between the Communications Authority of Kenya, created under the Kenya Information and Communications Act (KICA) and the two entities created under the Media Council Act, the Media Council of Kenya (MCK) and the Media Complaints Commission (MCC).

CAK issued a statement warning TV station to adhere to guidelines when airing Azimio La Umoja protests in March. According to the authority's Director General Ezra Chiloba, NTV, Citizen TV, K24, KBC, TV47, and Ebru TV broadcast the protests in a manner that caused panic and threatened peace.

Justice John Chigiti of the High Court suspended the censure pending a hearing and decision on a petition filed by the Katiba Institute. The petitioners contend that the CAK has no such powers, and any statutory provisions conferring these powers are unconstitutional.

Articles 33, 34, and 35 of the Kenyan constitution protect freedom of expression, media freedom, and access to information. Article 34, which provides for a free press, contains specific provisions to ensure media independence and facilitate licensing and regulation.

It prohibits the State from interfering with or controlling information production, circulation, or dissemination. Article 34(3) further affirms the freedom of media enterprises to establish, subject to licensing procedures regulating airwaves and signal distribution. Article 34(5) establishes a statutory body independent of government control and commercial and political interests.

This body should reflect all interests of all society sections that are exclusively mandated to set media standards and regulate and monitor compliance with those standards. MCK and MCC are generally accepted as the bodies created under Article 33(5). Conversely, the CAK is created under Article 34(3) to facilitate and regulate airwaves and signal distribution. In a constitutional petition by media houses to challenge digital migration almost a decade ago, the Supreme Court affirmed this distinction. In a progressive juridical intervention, the court clarified the scope of the Body's mandate under Article 34(5) against the licensing process under Article 34(3).

The confusion is primarily due to overlaps, inconsistencies, and conflicts of law in the statutes setting up the Media Council of Kenya (MCK) and the Media Complaints Commission (MCC) on the one hand and the Communications Authority of Kenya (CAK) on the other. Section 46A of KICA, for instance, gives the CAK the power to set media standards and monitor compliance with them, which is constitutionally the province of the MCK. Additionally, the CAK can prescribe a programming code, review it, and provide a watershed period for child protection.

In contrast, the preamble of the MCK Act specifies that the law is an "Act of Parliament to give effect to Article 34(5) of the Constitution; to establish the Media Council of Kenya; to establish the Complaints Commission and for connected purposes". Additionally, the act mandates it to promote a free press, prescribe standards for journalists and media practitioners, protect journalists in their duties, and promote ethical and professional standards.

Apart from creating the Media Council led by a CEO and board, the Act also establishes a Complaints Commission to mediate and adjudicate media complaints between the public and the media, between media houses and between the State and media houses.

Notably, members of the board of the Media Council and the Complaints Commission are competitively recruited to protect their independence and impartiality as they participate in the coregulation of the sector. The Kenya Union of Journalists filed a separate petition seeking a final settlement. The courts, the ministry and Parliament should resolve these issues in line with the rule of law.