CHAPTER ONE

INTRODUCTION

1.0 BACKGROUND TO THE STUDY

But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as

well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the

opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is

almost as great benefit, the clearer perception and livelier impression of truth, produced by its collision with

error1

It cannot be gainsaid that media plays a vital role in society in disseminating information,

exposing the ills afflicting human beings and curbing the excesses of the Executive, Judiciary

and Legislature. The term “mass media” is a collective term referring to the traditional press,

electronic media (radio and television) and cinema.2Broadcasting has been defined as the

transmission of sound and vision programs by radio and television.3 The Copyright, Designs and

Patents Act of 1988, a United Kingdom statute, defines a broadcast as "a transmission by

wireless telegraphy of visual images, sounds, or other information which is capable of lawful

reception by the public or which is made for presentation to the public". The electronic mass

media have been burdened by a lot of numerous regulatory restrictions as compared to the print

media.4Ironically, media finds itself at crossroads especially where it has its own ‘excesses’ to

curb if self-regulation, self-censorship and need for adherence to professional ethics and

standards are anything to go by. The rationale which has been given for this is that the radio

spectrum is a finite resource which cannot accommodate everyone thereby imposing on the

government the duty of limiting access.5 Such restrictions in the broadcast media, provided for

1 Gray, J. & Smith G.W. (Eds.) (1991). On Liberty in Focus. New York, NY: Routledge London and New York. P. 37.2 Makali, D.(Ed.) (2003). Media Law and Practice: The Kenyan Jurisprudence. Nairobi: Phoenix Publishers Ltd p. 27-28.3 Broadcasting http://encyclopedia.farlex.com/Broadcast+media (accessed on 19 January 2010)4 Zelezny, J.D., Communications Law: Liberties, Restraints, and the Modern Media. California: Wadworth Publishing Co. p. 5.See also Gibbons,T., Regulating the Media. London: Sweet and Maxwell; broadcast needs some regulation to safeguard the interests of the audience and those using the media.5 Ibid, The scarcity rationale which formed the basis in the Red Lion Broadcasting Co. v FCC 395 U.S. 367 (1969) as the primary justification for government intervention in broadcasting has been questioned on the basis of the consumer being inundated with a lot of programming choices arising from a market saturated with numerous

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under the Kenya Communications (Broadcasting) Regulations 2009, have taken the form of

licensing schemes, ownership and control, content requirements and programme code. Control of

the media have taken the form of specific laws and regulations and the form of policy issues.6

Much furore was raised over the Communications (Amendment) Bill 2008 which was later

assented into law by the president. The thrust of the government’s argument in defence of this

legislation was that this was not a gag to press freedom but a means of regulating the media. The

broadcast media has been brought under sharp focus especially in relation to the role it played

before the post-poll violence which included fanning ethnic hatred and hate speech.7 These were

occasioned due to “weak, irresolute and inadequate legal, regulatory and policy framework

inherited from the colonial era.8 Nevertheless, the media are not without blame. In deed:

“…the media are not entirely ‘responsible’. Left to their own devices, they have shown to be reluctant to

tame their excesses and power. There is probably a lot to be said for more legislation over certain specific

issues-ownership, advertisement, promotional methods and so on- to tidy up the flaws and gaps in the role

and control of media to which more thought needs to be given”9

The electronic media in Kenya has for a long time been monopolized by the Kenya Broadcasting

Corporation (KBC). It was founded in 1927 and runs one television service, two radio channels

and 16 regional ethnic stations.10 The repeal of section 2A of the constitution in 1991 apart from

introducing plural politics in Kenya also liberalized the media and communication sector. 11 Due

to pressures from donors and the civil society, increase of mass media and economic demands,

the government was impelled to liberalize the airwaves, abolish restrictive media laws and

harmonize the Kenya Post and Telecommunication and Kenya Broadcasting Acts.12

channels of communication.The other justifications include: 1) broadcasters are public trustees of the airwaves 2) broadcasted contents enter homes in an intrusive manner and hold sway on the audience particularly children.6 Bittner, J.R., (1991) Broadcasting and Telecommunication: An Introduction. New Jersey: Prentice-Hall Inc p.17.7 The Kenyan 2007 elections and their aftermath: The role of media and communication, policy briefing of the World Service Trust http://www.comminit.com (retrieved on 22 January 2010).Also check: Chapter Eight: The Media and the Post Election Violence. http://www.marsgroupkenya.org/pdfs/2008/10/Waki_Chapters/Chapter_8_The_media_and_the_post_election_violence.pdf (retrieved 22 January 2010) p. 295-303.8 http://downloads.bbc.co.uk/worldservice/trust/pdf/kenya_media_legal_framework.pdf (accessed 3 October 2010).9 Makali, D. (Ed.) supra p. 30-31.10 Kenya Press, Media, TV, Radio, Newspapers http://www.pressreference.com/Gu-Ku/Kenya.html (accessed 9 November 2009).11 Makali, D. (Ed.) supra p. 30-31.12 Ibid.

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Liberalization of the airwaves were set in earnest in 1993 through a Task Force on Press law set

up by the Attorney General to review and make recommendations on press laws and to provide a

comprehensive legal framework for both print and electronic media. 13FM radio stations and

television channels have grown expansively over the years. For instance there are 15 radio

stations in Nairobi, 13 regional or vernacular radio stations, 6 television stations in Nairobi, 7

satellite televisions and one regional TV station.14 With such a proliferation, therefore, especially

with the rise of radio stations especially in the vernacular and FM radio stations, the need for

some form of regulation is a question which needs legitimate attention. Accusations have been

levelled on FM radio stations for using obscene and vulgar terms in their talk shows and call-ins,

broadcast disregarding the composition of the audience in terms of age and time and fanning

ethnic hatred.15

The issue of licensing in the broadcast media, the independence or lack of it of the

Communications Commission of Kenya and the role of the Media Council in promoting ethical

standards among Journalists are areas which need to be examined at depth.

1.1 STATEMENT OF THE PROBLEM

Kenya has been rated “just partly free” in the World Press Freedom report titled: Freedom of the

Press 2008: A Global Survey of Media Independence.16 On one hand, the Standard Raid and the

Communications Act 2008 appear to be an affront to press freedom. On the other hand,

arguments have been advanced that the media have not been keen enough in what they publish or

air especially with regard to adult contents for children and statements which threaten national

peace thus the need for a regulated press. Both sides of the divide have a case.

13 Ibid.14 Print and Electronic Media in Kenya http://www.communication.go.ke/media.asp?id=46 (retrieved 11 February 2010).15 Oburra, H., (2010, January 15) .The Failure of our FM Radio Stations. The Standard. Retrieved from http://www.standardmedia.co.ke/letters/InsidePage.php?id=2000001030&cid=17&.16 EALS Wants Retrogressive Clauses of the Kenya Communications (Amendment) 2008 Act Repealed http:// www.ealawsociety.org/.../ Press _%20release_%20on_%20Communications_%20Bill.doc (accessed 8 November 2010).

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The Kenya Media Act 2007 establishes the Media Council of Kenya whose functions are, inter

alia, promoting ethical standards among journalists and in the media. A Complaints Commission

is established by the Media Council to investigate complaints brought to the Council’s attention.

This Act provides for the legal framework for self-regulation of the media.

There are bodies which regulate the media which include the Ministry of Information and ICT,

Communications Commission of Kenya, Media Council of Kenya and the Kenya Film

Commission.17 Established in February 1999 by the Kenya Communications Act 1998, the

Communications Commission of Kenya is charged with the responsibility of licensing and

regulating telecommunications, radio communication and postal services in Kenya.18

Under section 46 (1) H of the Communications (Amendment) Act 2008 the commission is

empowered to set standards for the manner, time and type of programmes to be broadcast by

licensees under the Act. Subsection 2 of this Act empowers the commission to:

a) Prescribe a programming code

b) Review the programming code at least once every 2 years

c) Prescribe a watershed period programming when large numbers of children are likely to

be watching programmes, and

d) Ensure compliance with the programming code prescribed under this section

There have been several criticisms leveled against the provisions of the Kenya Communications

(Broadcasting) Regulations 2009. For instance, giving the Commission discretion to determine

other requirements before grant of licence has been held to be “ambiguous” and “likely to be

abused”.19 Furthermore, the demonstration of an applicant’s capability to offer a minimum of ten

channels to each subscriber has been faulted and instead a proposition made for reliance on

business judgment depending on the availability of channels from the multiplexer.20

A broadcast licence refers to “a specific type of spectrum licence that grants the licensee the

privilege to use a portion of the radio frequency spectrum in a given geographical area for

17 Supra note 8.18 http://www.cck.go.ke/about_cck/ (retrieved 11 October 2010).19http://www.cck.go.ke/links/consultations/published_responses/draft_regulations/kdn/ Broadcasting_Regulations2009.pdf ( retrieved 5th April 2010).20 Ibid.

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broadcasting purposes”.21 It is usually conducted by a governmental agency or a broadcasting

authority. In Kenya, the Communications Commission of Kenya has the power to grant or refuse

licenses following prescribed criteria.22 These include viable business plan, evidence of relevant

experience and expertise to carry out broadcasting services, evidence of technical capability in

terms of personnel and equipment, evidence of the capability to offer broadcasting services for at

least eight continuous hours per day and such other information or requirement as the

commission may from time to time prescribe.23

These two provisions provided for under the Communications (Amendment) Act 2008 and the

Kenya Communications (Broadcasting) Regulations 2009 give wide latitude of undefined power

to the commission in prescribing programming code apart from raising pertinent issues on the

propriety of some of its provisions.

Lastly, the Code of Conduct for Journalists and the Mass Media was finalized on April 2001 to

provide guidelines for regulating the conduct of every person working for the mass media. Noble

as this might be, it remains a guideline as errant journalists can get away with breach of the same

code. Has this guideline been effective if self-regulation is to form a tenable argument for

Kenyan press?

1.2 RESEARCH QUESTIONS

This research will be guided by the following research questions or objectives:

1. To investigate the Communication (Amendment) Act 2008 especially section 46 H and

the Kenya Communications (Broadcasting) Regulations 2009 and assess their

applicability or shortfall in Kenyan media.

2. To critically examine the Media Council and its relevance in ensuring responsible

journalism.

3. To suggest areas for reform in regulation of Kenyan media in light of Kenyan media

experience.

21 http://en.wikipedia.org/wiki/Broadcast_license (accessed 5th April 2010).22 Section 3, The Kenya Communications (Broadcasting) Regulations 2009.23 Section 3(1) (a)- (e), The Kenya Communications (Broadcasting) Regulations 2009.

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1.3 HYPOTHESIS

For purposes of this research there will be some assumptions to be made, namely;

That:

1. The state cannot be trusted in regulating the media in light of its track records: Although

the state is the custodian of the public good and therefore better placed to regulate the

media, such sweeping powers have been abused in the past. For example as Peter Oriare

writes, the government brought sedition trials of the underground press and later banned

independent and critical publications. Between 1988 and 1990 about 20 publications were

banned in Kenya.

2. The press has been incapable to self-regulate itself: The Code of Conduct for Journalists

and the Mass Media gives guidelines on the do’s and don’ts of journalists and the mass

media. The Kenya Media Act 2007 establishes the Media Council of Kenya whose

functions are geared towards ensuring responsible media. However, criticisms might be

leveled on airing of contents which have been prejudicial or making pejorative reference

to ethnicity, clan, religion, political affiliation, sex or sexual orientation in FM radio

stations which are partly attributable to the 2007/2008 post-poll violence; publishing or

broadcasting of things which are obscene, vulgar or offensive to public good taste;

conflict of interest occasioned by accepting gifts, bribes, favours, free travel thus

compromising objectivity in journalism.

1.4 SIGNIFICANCE OF THE STUDY

This study will be important for several reasons:

1. It will seek to examine the Communication (Amendment ) Act 2008, its strengths and

weaknesses.

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2. It will seek to understand the self-regulation and state-regulation divides and chart the

way forward for Kenya’s electronic media.

3. To search for a philosophy to guide Kenya’s electronic media.

1.5 LITERATURE REVIEW

Media regulation has been a subject of much debate. Christopher Mulei et al (2003) among other

things, trace the origins and philosophy behind western notions of free speech, justifications of

free speech, censorship, colonial legacy of repressive laws, the legal environment for freedom of

press in Kenya, the international perspectives on media law and practice. Pertinent to our area of

study, the book explores both the print and electronic media and identifies the limitations of

section 3691) of the Communications Act especially as regards to licences granted by the

Communications Commission of Kenya to establish a station. However, this legislation has been

succeeded by the Communications (Amendment) Act 2008 and the Kenya Communications

( Broadcasting) Regulations 2009 which introduce new legal questions on media on application

for a broadcasting service licence, general requirements for broadcasting services, ownership and

control, general requirements for contents, programme code e.t.c.

According to John Zelezny the electronic mass media including radio, broadcast TV, Cable TV,

and direct satellite are explored in the context of the Communications Act of 1934, the basic

legislation that governs broadcasting in the United States. The composition and roles of the

Federal Communications Commission, the regulator of radio and television broadcasting and

interstate and international communications by wire, satellite and cable, is delved into. Giving

the justifications for regulation of the electronic media, basic qualifications adhered by the

Federal Communications Commission before grant of broadcast licensees are listed. However, in

as much as all these shed light on the issue of broadcast licenses, such information is given under

the background of the philosophy of the American broadcast experience and laws. In addition, in

as far as the role of the Communications Commission of Kenya is given in setting broadcasting

standards and the subsequent question raised of its independence, Zelezny’s book is only

restricted to the United States. In this study the issue of licensing will be examined in light of the

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Communications Act and the Kenya Communications (Broadcasting) Regulations 2009, among

other Kenyan statutes.

Thomas Gibbons (1998) analyses the concept of media regulation arguing that a study of

regulation will be concerned with examining the various normative sources that are available to

constitute or constrain action and to note where effective control of the practice appears to be

located. A general outline of what should constitute a regulatory agency is given with the guiding

frameworks of independence from government and direct political influence and greater public

participation. Thomas postulates that “in order to safeguard free speech in the context of

broadcasting, some regulation is actually necessary to ensure that the interests both of those who

communicate through the medium and their audiences are secured”. Granted, broadcasting needs

some regulation, however, the book just mentions in passing regulation of the electronic media

which is not exhaustive for the Kenyan broadcast media.

According to Patrick Ross, the 109th U.S. Congress tried to reduce free expression through the

regulation of media content and distribution which was also extended to broadcast indecency

regulations to cable and satellite platforms, restrictions on children’s programming et.c. Ross

proposes regulations to be across the board and the need for it to allow capital flow in innovation

in media delivery methods and pro-innovation and pro-consumer rules for policymakers. An

examination is made of Europe and Australia and their traditional broadcasting and online video.

Nevertheless, this study majorly concentrated on the internet which is beyond the scope of this

research.

Okoth-Owiro describes and analyses the law affecting mass media in Kenya. He argues that state

interest in the control of the press has been achieved through a) determining how the press is to

perform its role, and b) by owning the press. He indicates that there are several legal and

administrative instruments for controlling the press and suggests the establishment of a

representative institution for advocating for the issues of the press and the recognition of the

right of the press to be heard before a tribunal and to appeal for broach of press freedom. Okoth-

Owiro advances an interesting proposition of the state legitimately controlling the activities of

the press through state-ownership of radio and television networks and ownership of newspapers.

However, as he points out “the ideals of democracy, constitutionalism and a free press cannot be

left to state discretion”. Therefore, he chooses law to be the determinant of method of control of

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the press. In conclusion, Okoth-Owiro admits that more discussion needs to be held on whether

the state is to control the press, whether the law is to be the “natural” regulatory mechanism and

underscores the need for further debate to be held on institutional and policy adjustments.

Peter Oriare Mbeke and Tom Mshindi (2008) assess the media sector and provide a summary of

the key issues and constraints that affect the media in Kenya. They looked into the issues of

categories of Kenyan media systems, investigative journalism, working conditions of journalists,

the status of journalism training in Kenya, among other things. According to them, the electronic

media has developed very sophisticated platforms for enhancing citizen participation in media

since both radio and TV stations have live interviews during news bulletins, live discussion

shows, live guest forums, live breakfast shows and debates, phone-ins and sms during live talk

shows. Because of this, therefore, the need for the regulation of broadcast media arises. Given

that the objective of this study was to provide an understanding to various players in the media

sector and of the issues constraining media, the issues of licensing and press freedom were not

given an in-depth analysis. Nevertheless, the study provided an insight of the media environment

in Kenya for a holistic appreciation of its role and limitations.

According to Peter Oriare Mbeke, the mass media and communication sector in Kenya remains

vulnerable to system-wide pressures. Tracing media law from colonial era (1895-1962) through

post-independence Kenyatta era (1962-1978), Moi era (1978-2002) and Kibaki era (2002-2008),

Peter Oriare notes that the causes of the recent post-election violence and the resulting ban on

live broadcasting were due to “weak, irresolute and inadequate legal, regulatory and policy

framework inherited from the colonial era”. Arguing that the legal, regulatory and policy

environment is still hostile to media, Oriare believes that such could be reversed if a better

constitution is enacted, repressive laws repealed and new policies adopted. Lastly, he proposes a

comprehensive communication policy that addresses such important issues as media ownership

and control, programming and local content, education and training, capacity building for

community media. It must, however, be noted that the Kenya Communications (Broadcasting)

Regulations 2009 address these issues and present issues for debate.

Edwin Baker (1989) critiques the assumptions underlying the classic marketplace of ideas theory

and proposes the liberty theory and considers the relationship between the two theories, the

process of change and the political speech theory. However, the book majorly deals with

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freedom of speech and assembly. It proposes and examines special rights for the press which it

calls the theory of the press. This book provides the philosophical foundations for the various

theories regarding the press and its various philosophical underpinnings.

Geoffrey Stone, Louis Seedman, Class Sunstein, Mark Tushnet and Pamela Karlan (2003)

explore the history and philosophy of free expression, expression that induces unlawful conduct,

the issue of licensing as prior restraint, injunction as prior restraint, false statements of fact,

commercial speech, obscenity, hate speech and pornography, speech on public property and the

freedom of press. The authors note that throughout English history the crown and parliament

adopted three forms of restraint on the media through licensing of the press, the doctrine of

constructive treason, and the law of seditious libel. The book proposes restriction on licensing

based on economic grounds and the ability of the market to support it. Therefore, the fairness

doctrine or its equivalent will be able to cater for those who have been denied licences.

According to Moggi and Tessier (2001), in a 1993 a Task Force on Free Press Laws was

appointed to address the issues of information access and dissemination, ethical and professional

standards for journalists and their enforcement, self-regulation of the media by defining a media

council or a similar body, its composition, functions, duties and procedures and finally media

ownership, licensing and development. This was a conscious effort by the government to ensure

a responsible media. The report also points out that in comparison with print media, broadcast

media in Kenya are tightly under governmental control.

In Reconciling Red Lion and Tornillo, Abbot B. Lispky, Jr. (1976) under part I discusses the

leading cases on the constitutionality of media regulation. These cases generally involve disputes

concerning the allocation of editorial power, the power of the publisher or broadcaster to

determine the contents of the message which he conveys. Part II argues that the existing

constitutional rationale for broadcast regulation is based on inadequate distinctions between the

print and electronic media, and examines the sources and consequences of editorial power in

each medium. Part III proposes a test for the constitutionality of media regulation which would

shift the focus of the court’s approach from a concern with the allocation of editorial power to

the equally important issue of how editorial power arises. The test is then applied to current and

proposed regulatory schemes for several media institutions.

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Angela J. Campbell explores self-regulation, arguments in favour of self-regulation, arguments

against and gives examples of self-regulation by the media e.g. the Children Advertising Review

Unit, advertising of hard liquor, the press councils, the National Association of Broadcasters

(NAB) Radio Code.

In a comparative legal survey on media legislation in Africa, Guy Berger examines statutes with

provisions on the media from select African countries. He indicates that from an international

perspective, bodies with regulatory or administrative powers should be independent and free

from political interference. Further, he illustrates the joint statement by the relevant rapporteurs

of the UN, the Organisation for Security and Co-operation in Europe (OSCE) and the

Organisation of American States in 2003 which condemns limits on free expression through

“regulatory mechanisms which lack independence or otherwise pose a threat to freedom of

expression”. The statement also stresses the importance for independent regulatory bodies of “an

appointment process for members which is transparent, allows for public input and is not

controlled by any particular political party”.

Itumeleng Pascalina Shale provides the normative and legal framework for regulation of media,

the normative theories of media regulation for example authoritarianism, libertarianism, social

responsibility, soviet communist theory, development communication theory, democractic

participation theory e.tc, the international legal framework for protection of freedom of

expression, the freedom of expression, the freedom of expression and regulation of media, the

freedom of expression and regulation of media in Uganda especially in regard to the media

council, the National Institute of Journalists and comparative analysis of media regulations.

However, the dissertation restricted itself to the Press and Journalists Act 1995 of Uganda.

Bittner John (1991) traces the history of broadcast media regulation in the United States. The

Radio Act of 2007, a precursor to the Communications Act of 1934, is examined in terms of the

role of the Federal Radio Commission (FRC), its composition, licensing of stations and control

over frequency, power and time of operation of radio stations. The Communications Act of 1934,

the Author argues, “removed broadcasting from the supervision of the U.S. Department of

Commerce and gave it separate status under an independent agency of government”. Thus, there

was a need for comprehensive regulatory agency since the Federal Radio Commission (FRC)

had limited scope culminating in the evolution of the commission into the Federal

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Communications Commission (FCC). The book lists the 13 areas of responsibility of the Federal

Communications Commission and outlines its composition. In addition, under the five

commissioners that it lists there are Federal Communications Commission (FCC) bureaus which

are the private radio, the field operations bureau, the mass media bureau, and the common

courier bureau. Bittner John identifies the bureaus directly linked to broadcasting which are the

mass media and field operations bureaus. As can be surmised, nonetheless, the framework of

what Bittner expounds on in this book impinge on the American broadcast media systems and

institutions and whilst it sheds light on the philosophical underpinnings and policy implications

on the Kenyan broadcast media, it is no conditio sine qua non for Kenya’s circumstances and

peculiarities. Therefore, a study that appreciates such circumstances and history of Kenya and its

drawbacks could best address the media sector in Kenya.

John Martin (1993) explores the goals and roles of media systems, the role of mass media in the

western world and in the Third World. The root of freedom of expression and freedom of the

press in Ancient Greece right from Plato’s Apology for Socrates to Aristotle’s Rhetoric to

Alexander’s persuasive powers are delved into. The book also examines censorship in England

under Tudor and France, Germany (where some states such as Bavaria, Saxony and Prussia

offered licenses to postmasters for the printing of newspapers. In addition, the book attempts a

western definition of free press which includes principles such as the prohibition of government

interference with the press in the form of censorship and other restraints and the principle that

restrictions on press freedom must be applied or be subjected to review by the courts. It then

throws a cursory glance at situations of free press freedom in Ethiopia, Afghanistan and Angola

which are countries with a communist or socialist orientation. However, though the book is

essentially a comparative analysis of mass media systems, it has not narrowed itself to broadcast

media and how it is regulated.

1.6 ORGANISATION OF THE STUDY

This study is subdivided into five chapters each dealing with various aspects in the area under

examination.

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Chapter one Background: This will introduce the problem statement which is the issue

of licensing in broadcast media and the independence of the

Communications Commission of Kenya. An overview of the Kenya

Communications (Broadcasting) Regulations 2009 will be made.

Available literature on media regulation will then be looked at.

Chapter two The normative, legal and theoretical framework of freedom of expression:

An overview of the various theories of media regulation. Then an

examination will be made on national, regional and international legal

instruments protecting freedom of expression.

Chapter three Regulation of the broadcast media: The rationale for regulation,

examination of licensing per se, critique of the Kenya Communications

(Broadcasting) Regulations 2009, examination of the Communications

Commission of Kenya, the role of the Media Council and the effectiveness

of the Code of Conduct for Journalists.

Chapter four Comparative analysis of regulation of broadcast media: The legal

provisions regulating the broadcast media in other jurisdictions like the

United States and South Africa, analysis of the regulators in those

jurisdictions and their independence.

Chapter five Summary, conclusions and recommendations: Although it will be

conceived that there ought to be regulation in the broadcast media,

recommendations will be made on the level and extent of such. The best

broadcast regulation philosophy will be recommended

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CHAPTER TWO

THE NORMATIVE, LEGAL AND THEORETICAL FRAMEWORK OF FREEDOM OF

EXPRESSION

2.0 INTRODUCTION

Though all the winds of doctrine were let loose to play upon the Earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever know Truth put to the worse, in a free and open encounter?24

Freedom of expression is a term that has elicited a lot of debate. This owes to the fundamental

role that it plays in society in shaping public opinions, entertaining and educating its consumers.

Professor Thomas Emerson (cited in Baker, 1989) identifies four values that the “first

amendment” freedom has and lists them as i) individual self-fulfillment, ii) advancement of

knowledge and discovery of truth, iii) participation in decision making by all members of the

society (which is “particularly significant for political decisions” but “embraces the right to

participate in the building of the whole culture”, and iv) achievement of a “more adaptable and

hence stable community”.25 Webster’s New World Law Dictionary has defined it as

“collectively, the rights, guaranteed by the First Amendment to the United States Constitution, to

engage in freedom of speech, freedom of association, freedom of the press, and freedom of

religion”. Section 79 of the Constitution of Kenya defines freedom of expression as “freedom to

hold opinions without interference, freedom to receive ideas and information without

interference, freedom to communicate ideas and information without interference (whether the

communication be to the public generally or to any person or class of persons) and freedom from

interference with his correspondence”. It should be noted here that such a definition is in tandem

with the provisions of the international legal instruments in regard to protection of freedom of

expression. In Edmonton Journal v Alberta (Attorney General)26, Dickson C.J. and Lamer and

Cory JJ underscored that “freedom of expression is of fundamental importance to a democratic

24 J. Milton., Areopagitica, A speech for the Liberty of Unlicensed Printing ed. Noel Douglas (London:Humphries & Co. Ltd., 1927).25 Baker, C.E., (1989) Human Liberty and Freedom of Speech. New York: Oxford University Press p. 47.26 [1989] 2 S.C.R. 1326 http://www.canlii.org/en/ca/scc/doc/1989/1989canlii20/1989canlii20.html (retrieved 15 February 2010).

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society and should only be restricted in the clearest of circumstances.  It is also essential to a

democracy and crucial to the rule of law”.

Similarly, in the case of Cheserem v Immediate Media Services27, the court underscored the sanctity

of freedom of expression enshrined in Section 79 of the Constitution which is enjoyed by every

news media, the press, newspapers and journalists. Thus the court held that an injunction could not

be allowed to block publication of information thus impeding freedom of expression unless there

was a substantial risk of grave injustice and the private interest in preventing the publication

outweighed the public interest.

The classic marketplace of ideas theory perhaps sheds more light on the subject of freedom of

speech. It holds the view that “wise counsels will prevail over false ones in the clash of free public

debate and that the best test of truth is the power of the thought to get itself accepted in the

competition of the market”.28 Holmes, J., dissenting, captures this theory succinctly:

When men have realized that time has upset many fighting faiths, they may come to believe

even more than they believe the very foundations of their own conduct that the ultimate

good desired is better reached by free trade in ideas- that the best test of truth is the power of

the thought to get itself accepted in the competition of the market, and that truth is the only

ground upon which their wishes safely can be carried out29

Consequently, under this theory, truth must be “objective” and able to outdo falsity in debate and

that people are basically rational and able to discern truth from falsity. However, this theory has

been faulted by several scholars30 and instead an alternative theory, liberty theory, proposed instead.

John Stuart Mill, a strong proponent of the liberty theory, advocated for freedom of expression.

Writes Mill, “if all mankind minus one were of one opinion, mankind would be no more justified in

silencing that one person than he, if he had the power, would be in silencing mankind”.31 He argues

27 (2000) Nairobi HCCC No. 398.28 Baker, C.E. (1989) supra p. 131.29 Abrams v United States (1919) 250 U.S. 616, 630.30 See Baker, C.E. (1989); The book critiques the assumptions underlying the classic marketplace of idea theory. For instance, he points out that the theory allows the conclusion that reasonable time, place, and manner restrictions do not “abridge” the right of peaceable assembly or the freedom of speech.31http://books.google.co.ke/books? id=RbkAAAAAYAAJ&printsec=frontcover&dq=on+liberty+john+stuart+mill&source=bl&ots=Vt7nGHg37r&sig=yiaeuY3YQ-k8MjhqoW-vbZyyN00&hl=en&ei=dZJ7S8ujHon-0gT5nq3SBQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CAcQ6AEwAA#v=onepage&q=&f=false .

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that silencing of an individual of an expression of his opinion robs the society and posterity of its

worth whether it be right or wrong; if right, of the opportunity of exchanging error for truth, if

wrong, of the clearer perception and livelier perception of truth when it is in collision with error.32

Mill further postulates that an opinion which it is attempted to suppress may possibly be true.33

2.1 INTERNATIONAL LEGAL INSTRUMENTS

There are various international legal instruments that protect freedom of expression. From the

outset, it should be borne in mind that enforceability of human rights standards in domestic

courts needs their incorporation into domestic law.34Nonetheless, Kenya is obliged by

international law to abide by the provisions of human rights conventions as a part of customary

international law.35 The International Covenant on Civil and Political Rights, to which Kenya has

ratified, provides that everyone shall have the right to hold opinions without interference and this

right shall include freedom to seek, receive and impart information and ideas of all kinds,

regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other

media of his choice.36 However, the instrument limits the exercise of this right as regards respect

of the rights or reputations of others and in the protection of national security or of public order,

public health or morals.37 Similarly, propaganda for war and advocacy of national, racial or

religious hatred that constitutes incitement to discrimination, hostility or violence are prohibited

by law.38

The same protection of the right to freedom of opinion and expression is safeguarded under the

Universal Declaration of Human Rights39, the Banjul Charter (adopted by the Heads of State and

32 Ibid p. 33.33 Ibid p.34.34 Makali, D. (Ed.) (2003) supra p 34735 Ibid.36 Article 19, International Covenant on Civil and Political Rights.37 Ibid Check Art 19 (3) (a) (b).38 Article 20 International Covenant on Civil and Political Rights.39 Article 19, Universal Declaration of Human Rights.

16

Government Meeting in Nairobi on 27 June 1981)40 and the European Convention.41 It is

instructive to note Article 10 (2) which provides:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic

society, in the interests of national security, territorial integrity or public safety, for the prevention of

disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of

others, for preventing the disclosure of information received in confidence, or for maintaining the authority

and impartiality of the judiciary

This limitation clause is more comprehensive and condensed than the derogations to be found in

other instruments. The American Convention on Human Rights, also referred to as “Pact of San

Jose, Costa Rica”(hereinafter called American Convention), apart from providing for the right to

freedom of thought and expression42 has provided that the exercise of this right “shall not be

subject to prior censorship”43 save for respect for the rights or reputations of others and the

protection of national security, public order or public health or morals.44 Two other interesting

provisions45 are worth mention because they take cognizance of the need for freedom of speech

in the media and curbing harm likely to be caused by them. Vide Article 13(3) of the American

Convention, the right of freedom of expression may not be restricted by indirect methods or

means such as the abuse of government or private controls over newsprint, radio broadcasting

frequencies or equipment used in the dissemination of information or by any other means tending

to impede the communication and circulation of ideas and opinions. However, this doesn’t

absolve public entertainments from being subject by law to prior censorship for the sole purpose

of regulating access to them for the moral protection of childhood and adolescence.46Further,

propaganda for war and any advocacy of national, racial, or religious hatred are considered as

offenses punishable by law under the Convention.47 Even with these provisions in place,

40 Article 9, African (Banjul) Charter on Human and People’s Rights. Article 27 however states that the rights are to be exercised with “due regard to the rights of others, collective security, morality and common interest”.41 Article 10, European Convention (Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11).42 Article 13 (1) American Convention on Human Rights.43 Article 13 (2).44 Ibid.45 Article 13(3) and (4).46 Article 13 (4).47 Article 13(5).

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“historically a few countries, among them United States and Sweden, can claim to be liberal

compared to the mostly repressive rest of the world with regard to media freedom”.48

One running thread can be discerned from all these conventions: Protection of freedom of

expression and the attendant duties and responsibilities so that the right cannot be abused. It

stems from the philosophical underpinning of enjoyment of human rights where such is to be

done in such a manner as not to injure, inconvenience or disregard the rights of others. Granted,

enjoyment of such a fundamental right without limitation clauses could have been an avenue for

abuse and untold suffering to the consumers of the media. Nevertheless, questions might be

raised over the nature, level and extent of the “protection of national security and public order”

and “such formalities, conditions, restrictions or penalties as are prescribed by law” provided

under Article 20 of the International Covenant on Civil and Political Rights and Article 10(2) of

the European Convention respectively. Such provisions as to national security, territorial

integrity or public safety, prevention of disorder or crime and protection of health or morals49,

owing to their amorphous nature, have been the lacunae through which dictatorial regimes have

wielded untrammelled powers over media playing the watchdog role. Perhaps, it is because of

this reality that the American Convention provides a safeguard.50 Therefore, the government is

barred from undue restrictions and controls over newsprint, radio broadcasting frequencies or

equipment which impede the communication and circulation of ideas and opinions. This is

because “every state has a political interest in controlling the activities of the press within its

jurisdiction”51 though other authors have argued that the state can “legitimately control” the

activities of the press.52Consequently, to curb government’s zeal to gag the press, such a clause is

a boon to protection of media freedom.

2.2 NORMATIVE THEORIES

48 Makali, D. (Ed.) (2003) supra P. 350.49 Article 10 (2) European Convention.50 Article 13(3) American Convention on Human Rights.51http://www.digital.lib.msu.edu/projects/africanjournals/pdfs/africa%/zomedia%20review/volno1/ jamr004001003.pdf (accessed 15 January 2010).52 Ibid.

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Normative theories of the press have been defined by McQuail as “ideas of how the media ought

to or can be expected to operate under a prevailing set of conditions and values”,53 in fact,

“normative theories of journalism concern ideal functions of the press, what the press should

do”.54In essence these theories seek to offer general guiding principles and circumstances upon

which media ought to operate in society. They are a product of the circumstances that have

shaped mankind throughout history and the perceptions that the society then and now hold as to

the proper role the media needs to play, who should control them or not and the level and extent

of such control. In addition, such theories have been utilized by institutions and the state in

shaping media policies.55

For our present purposes, the Four Theories of the Press will be examined and two additional

theories that have come along recently. Siebert, Peterson and Schramm in their book Four

Theories of the Press (1956) identify four theories, namely: Authoritarian Theory, Libertarianism

or Free Press Theory, Social Responsibility Theory and Soviet Media or Communist Theory.

There are other two theories which have come to be accepted and these are the Development

Communication Theory and the Democratization or Democratic Participant Media Theory. An

individual examination will be conducted on these theories.

2.2.3 Authoritarian Theory

This theory, developed in Europe after Gutenberg,56 postulates that the press “may remain free to

publish without prior censorship, but the state retains the right to punish journalists or close

media outlets that overstep explicit or implicit limits on reporting and commentary”.57Prevalent

in 17th Century Europe where the press was owned by the king, emperor, the pope and even

private individuals,58 the theory stemmed from the freedom of thought movement where

complete dictatorship was advocated for as a guard against inhibitions of the thought process by

53 http://peoi.org/Courses/Coursesen/mass/mass2.html (accessed 10 February 2010).54http://steinhardt.nyu.edu/scmsAdmin/uploads/000/727/Benson%20Normative%20Theories%20of %20Journalism%20Comp%20Media%20Class.doc. (accessed on 3rd February 2010).55 Ibid.56 Defining Global Media Systems http://www.academic.cengage.com/resource_uploads/downloads/0534608132 12978.pdf (retrieved 10th February 2010).57 Supra note 54.58 Flor, A.G. Development Communication: The Fifth Theory of the Press http://up-ou.academia.edu/AlexanderFlor/Books/94287/Communication-and-Culture--Conflict-and-Cohesion (accessed 2 February 2010).

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the printed matter.59 The rationale which was given for such a stance was that the state was the

custodian of the public good and that separate individuals could not exercise freedom of

expression to the detriment of the state.

As written by Rivers and Schramm (1969):

Modern communication was born in 1450 into an authoritarian society. The essential characteristic of an

authoritarian society is that the state ranks higher than the individual in the scale of social values. Only

through subordinating himself to the state can the individual achieve his goals and develop his attributes as

a civilised man. As an individual, he can do little; as a member of an organised society, his potential is

enormously increased. This means not only that the state ranks higher than the individual but also that the

state has a caretaker function and the individual a dependent status.60

The Authoritarian Model in the 17th Century Europe was conducted in two forms: licensing and

review of material after publication.61 Therefore, licences were revoked if an unfavourable

content was published and fines were levied or even death penalty meted out for publication of a

material that criticised the government.62

Conversely, the press was viewed as possessing the role of supporting the policies and actions of

the state and promote national unity.63 It must be noted that against such a background, such a

theory has been embraced by both dictatorial and democratic governments as a ground for

controlling the media. Libya, Syria, Iran, Singapore, Indonesia and Myanmar fit into this model.

2.2.4 Libertarianism or Free Press Theory

Libertarianism steeps from the concept that people should be given available information so as to

enable them to make good choices. 64 Dating back to 17th Century England, it is the exact anti-

thesis of the Authoritarian Theory where the press is not an instrument of the government but a

watchdog to curb the excesses of the government. It has to “monitor the full range of state

59 Supra note 53.60 Flor, A.G. p. 2-3.61 Supra note 56.62 Ibid.63 Ward, S.J., History of Journalism Ethics http://www.journalismethics.ca/research-ethics/history.htm (retrieved 2nd February 2010).64 Ibid.

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activity and fearlessly expose abuses of official authority”.65 In this theory man is seen as a

rational being capable of distinguishing between truth and falsehood, evil and bad unlike in the

Authoritarian model where he is seen as an instrument of the state.

The right to search for truth is regarded as inalienable natural rights of man (Siebert et al., 1956).

Further, there’s total freedom of the press devoid of government control and manipulation, which

lends credence to the “free marketplace” of ideas where conflicting arguments and insights are

encouraged to enable people discover truth and make well-founded decisions.

This theory presupposes that the media objectively discharges its duty of conveying truth without

undue influence from advertisers and powerful media corporate conglomerates and that it will

give chance for opposing viewpoints to be heard.

However, this theory has not been without fault. For instance, the media systems in the early 21 st

Century have abandoned their traditional public watchdog role of “disclosing official wrong-

doing” and “public affairs” by apportioning them little time vis-à-vis the disproportionate huge

regard to entertainment.66 Similarly, with the advent of conglomeration of news media corporate

empires have been created thereby puzzling the media in its quest for independence and

objectivity. In fact, “what this seemingly persuasive argument fails to take into account is the

way in which the market is now a source of corruption that can subdue critical oversight of

government”.67

2.2.5 Social Responsibility Theory

The proponents of the Social Responsibility Theory68 have argued that the Free Press Theory has

been exercised without due regard to caution and restraint and have stated that “pure

libertarianism is antiquated, outdated and obsolete”.69 This theory traces its roots to the Hutchins

Commission on the Freedom of Press 1949 of the United States which faulted the libertarian

theory and called for accountability and obligation of the media to society in a delicate

65 Curran,J. (2000) “Rethinking Media and Democracy” in J. Curran and M. Guvevitch (Eds.), Mass Media and Society, (p. 120-154). New York, NY: Oxford University Press Inc.66 Ibid p. 122.67 Ibid p. 123.68 Wilbur Schramx, Siebert and Theodore Paterson.69 Supra note 53.

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combination of self-regulation and state regulation of the media.70 It came up with several

precepts which were to be adhered by the media which include: i) the obligations of the media in

the preservation of freedom in a democratic society ii) media should be self-regulated iii)

adherence by the media to high standards of professionalism iv) the need for the media to reflect

the diversity of different cultures v) the public has a right to expect professional performance. 71

The report identifies a number of things that the media ought to perform for their effectiveness.

The media is supposed to be accurate especially when the reporter is collecting facts which ought

to be first hand and not hearsay and a distinction drawn between facts and opinions of fact,72

offer forum for exchange of comment and criticism as carriers of public discussion,73 project a

representative picture of the constituent groups in the society and not encouraging stereotypes, 74

present and clarify goals and values of the society through realistic reporting of events and forces

that impede achievement of those goals and educating the public.75

As a modification of the Libertarian Theory, the Social Responsibility Theory can be summed up

as thus:

...the power and near monopoly position of the media impose on them an obligation to be socially

responsible, to see that all sides are fairly presented and that the public has enough information to decide;

and that if the media do not take on themselves such responsibility, it may be necessary for some other

agency of the public to enforce it76

2.2.6 Soviet media/Communist Theory

The ideologies of Karl Marx and Friedrich Engels inform this theory which posits that media

“should not be privately owned, should serve the interests of the working classes, and most

70 Ibid.71 Pittner, S., What is the Social Responsibility Theory? (May 18, 2009) http://press-freedom.suite101.com/article.cfm/what_is_the_social_responsibility_theory (retrieved 10 February 2010).72 A Free and Responsible Press (1947) The Commission on the Freedom of the Press The University of Chicago Press p. 21-23.73 Ibid p. 23-25.74 Ibid p.26-27.75 Ibid p. 27-28.76 Ibid p. 3-4.

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importantly, should provide a complete, objective view of the world following Marxist-Leninist

principles, as defined by the communist-party controlled state”.77 Therefore, mass media was

expected to educate the working classes and encourage feedback. 78Prevalent in North Korea,

Cuba, Vietnam, and to a certain extent in China, this theory bears close resemblance to the

Authoritarian Theory. In Siebert et al. (as cited in Flor ) this theory is described as:

...a tool of the ruling power just as clearly as did the older authoritarianism. Unlike the older pattern, it is

state rather than privately owned. The profit motive has been removed, and a concept of positive has been

substituted for a concept of negative liberty...the American press is not truly free, the Soviets say, because

it is business controlled and therefore not free to speak the Marxists “truth”. (ibid, p.5)79

With the collapse of the Soviet Union in 1991 there have been different versions of this theory

which have been practiced in different countries.

2.2.7 Development Communication Theory

Having examined the four classical theories as propounded by Siebert et al., it is incumbent to

expound two other theories which were applicable to the non-aligned countries of Asia, Africa

and Latin America which countries found the Four Theories of the Press inadequate. These

theories, added by McQuail, are the Development Communication Theory and the Democratic or

Democratic Participant Theory.

The Development Communication Theory takes cognisance of the fact that there can be no

development without communication.80 Therefore, the media is expected to undertake the role of

carrying out positive developmental programmes and accepting restrictions and instructions from

the state in responding to the political, economic, social and cultural needs of the society.81 This

theory was backed by the UNESCO. As written by Schramm and McQuail (as cited in Benson),

“development theory is authoritarianism for a good cause supporting the economic development

and nation-building efforts of impoverished societies”. The Chinese, by way of example, follow

77 Flor, A.G.78 Supra note 53.79 Ibid.80 Ibid.81 Ibid.

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a market socialist approach to the media which combines limited market freedoms with

continuing state control.82

2.2.8 Democratization or Democratic Participant Theory

This theory encapsulates the need for the media to promote political involvement of citizens.83 In

fact, “its theorists emphasize diverse viewpoints and active citizen involvement more than the

quality of the discourse. They disagree on the best means to achieve these goals”84 The basis of

this theory is its opposition to commercialization of modern media and discouragement of

bureaucratic control of media.85 As written by Ferree and McQuail (as cited in Benson), “the

theory emphasizes principles such as proper inclusion, empowerment, and full expression

through a range of communicative styles”. It lays emphasis on of horizontal rather than vertical

(top-down) communication.86 The term 'democratic-participant' express disillusionment with

parliamentary democracy which has seemed to become detached from its grass-roots origins, to

impede rather than facilitate involvement in political and social life87 and emphasizes the right to

relevant information, the right to answer back, the right to use the means of communication for

interaction in a small-scale settings of the community.88

82 Supra note 54.83 Ibid.84 Ibid.85 supra note 53.86 Mass Communication http://rezaspace.blogfa.com/post-1014.aspx (accessed 15 February 2010).87 Ibid.88 Ibid.

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CHAPTER THREE

REGULATION OF THE BROADCAST MEDIA

3.0 Introduction

Kenya has a population in excess of 39 million people89, with around forty ethnic tribes and two

languages, English which is an official language and Kiswahili which is a national language.

Kenya gained her independence in December 12th 1963. Broadcasting in Kenya started in 1953

when the first Radio broadcast service was created for Africans before establishment of the

Kenya Broadcasting Service (KBS) in 1954.90However, the colonial government strictly

controlled and censored radio programs as early as 1927 and the Cable Wire Limited served only

Whites and Asians.91 The Kenya Broadcasting Service was succeeded by the Kenya

Broadcasting Corporation (KBC) in 1962.92 It was only in 1962 that television was introduced in

Kenya and eight years later in 1970 that a new television station was opened in Mombasa. 93 On

1st July 1964, the Kenya Broadcasting Corporation was nationalized into the Voice of Kenya

(VOK) and later reverted to Kenya Broadcasting Corporation in 1989 by enactment of the Kenya

Broadcasting Corporation Act.94 In 1989 and 1990, Kenya Television Network (KTN) and

Stellagraphics Ltd (STV) respectively were granted licences in that order thus setting pace for

liberalization of the airwaves. Currently, over 110 television channels and 264 FM frequencies

have been assigned countrywide to 23 TV and 62 FM sound broadcasters.95

A Task Force on Press Law of 1993 set up by the Attorney General sought to review and make

recommendations on Press Law and provide a comprehensive legal framework for the exercise 89World FactBook https://www.cia.gov/library/publications/the-world-factbook/geos/ke.html (retrieved 22nd February 2010)The actual figure is 39,002,772.90Report of the Task Force on Migration of Terrestrial Television from Analogue to Digital Broadcasting in Kenya (July 2007) http://www.cck.go.ke/UserFiles/File/migration_digital_tv.pdf (accessed on 22nd February 2010)91Supra note 8 (accessed 22nd February 2010).92Ibid.93 Ibid.94Ibid.95Ibid.

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of freedom of the press and electronic media. In 1995, the Kenya Mass Media Commission Bill

was introduced which sought to regulate the operations of the mass media.96

However, there was a general lack of linkage between task forces and bills on media law and

telecommunication law97 which was haphazard thereby subjecting telecommunication services to

political interference and excessive controls.98

3.1 Media regulation

Damian Tambini defines media regulation as the setting of rules for the media and oversights of

compliance with those rules, by media organizations or by users.99 Wikipedia defines it as

“controlling human or societal behavior by rules or restrictions”. However, Larry Irving

observes:

‘Most basically, we need to define what we mean, as the term “self-regulation” itself has a range of

definitions. At one end of the spectrum, the term is used quite narrowly to refer only to those instances

where the government has formally delegated the power to regulate, as in the delegation of securities

industry oversights to the stock exchanges. At the other end of the spectrum, the term is used when the

private sector perceives the need to regulate itself for whatever reason- to respond to consumer demand, to

carry out its ethical beliefs, to enhance industry reputation, or to level the market playing field- and does

so.’100

Regulation has three components: legislation, that is, defining appropriate rules; enforcement,

such as initiating actions against violators and adjudication, that is, deciding whether a violation

has taken place and imposing an appropriate sanction.101 The key media regulators are the

Ministry of Information and ICT, Communication Commission of Kenya, Media Council of

Kenya, Kenya Film Commission and many others.102

Section 46 (1) H of the Communications (Amendment) Act 2008 empowers the Communications

Commission of Kenya to set standards for the manner, time and type of programmes to be

broadcast by licensees under the Act. Subsection 2 of this Act empowers the commission to:

96Ibid.97Ibid.98Ibid.99Tambini, D., Self Regulation of the Media http://www.Blackwellreference.com (accessed 15 September 2009).100Irving, L. Collection of papers analyzing the prospects of self-regulation for protecting privacy on the internet http://www.law.indiana.edu (accessed 17 September 2009).101Ibid.102Supra note 8.

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e) Prescribe a programming code

f) Review the programming code at least once every 2 years

g) Prescribe a watershed period programming when large numbers of children are likely to

be watching programmes, and

h) Ensure compliance with the programming code prescribed under this section

This legislation has been met with heavy criticism from various quarters regarding the power of

the commission in prescribing and reviewing programming content.103 Questions on morality

elicit more heat than light and the challenge that the Commission faces is “how to legislate good

taste as a standard upon which a broadcaster can be held criminally liable” and that in a

culturally diverse society like Kenya which does not have a universal value of what is good or

abhorrent reliance on the discretion of the editor guided by professional ethics and the existing

laws on public nuisance and morality will be adequate.104 Therefore, it has been suggested that

the enforcement of the Code of Ethics and Practice and complaints over media content are to be

left to the Media Council of Kenya (this raises the question of how effective the Media Council

of Kenya is in the self-regulation of the media itself which will be delved into later in this

analysis).105 Further, national unity and cultural diversity cannot be achieved “by imposing on

broadcasters legislation to cultivate an abstract “Kenyan identity” and a value of what is good or

abhorrent as defined by the Information Ministry.”106

In the United Kingdom, the Ofcom107 Broadcasting Code of December 2009(incorporating the

Cross-Promotion Code) is a code for television and radio, covering standards in programmes,

sponsorship, fairness and privacy. For instance, it protects persons under eighteen years, protects

103For instance, the East Africa Law Society issued a press statement concerning the Kenya Communications. (Amendment) Act 2008. In particular, it noted that section 46 would give the Information and Communications Minister power to control programme content and the Commission will be responsible for ensuring the “good taste” of broadcasts. The Society also pointed out that it is not within the jurisdiction of Ministers to pass judgment on the quality of news and information and/or proscribe content for the electronic stations; EALS Wants Retrogressive Clauses of the Kenya Communications (Amendment) 2008 Act Repealed www.ealawsociety.org/.../Press_%20release_%20on_%20 Communications _%20Bill.doc ( accessed 8 November 2009). 104Wanjiku, R. (2009) Kenya Communications Amendment Act (2009): Progressive or Retrogressive? http://www.apc.org/en/system/files/CICEWAKenya20090908_EN.pdf (accessed 1st March 2010) p. 12.105Media Industry Statement on the Kenya Communications (Amendment) Bill 2008 http://kenyapolitical.blogspot.com/2008/12/media-industry-statement-on-kenya.html (accessed 1st March 2010).106Ibid.107In full the Office of Communications; it is the independent telecommunications regulator in the United Kingdom.

27

members of the public from harmful or offensive material in relation to offensive language,

violence, sex, sexual violence, discrimination; prohibits the descriptions or demonstrations of

criminal techniques which enable commission of crime and encourages due accuracy and due

impartiality in reporting news.

The Standards Code is also provided for by the United Kingdom legislation.108 Ofcom is

empowered to “set, and from time to time to review and revise such standards for the content of

programmes to be included in television and radio services as appear to them best calculated to

secure the standards objectives”, the standard objectives of which are, among others, that persons

under the age of eighteen are protected, material likely to encourage or incite the commission of

crime is not included in television and radio services and that the proper degree of responsibility

is exercised with respect to the content of programmes which are religious programmes.

Perhaps what is more instructive is the provision on the modalities to be adopted by Ofcom in

setting or revising standards.109 They are expected to have regard to the degree of harm or

offence likely to be caused by inclusion of a particular programme content, the likely size and

composition of the potential audience for programmes, the likely expectation of the audience as

to the nature of programmes content, the likelihood of persons who are unaware of the nature of

a programmes content being unintentionally exposed by their own actions to that content, the

desirability of securing that the content of services identifies when there is a change affecting the

nature of a service and the desirability of maintaining the independence of editorial control over

programme content.

As can be seen, the United Kingdom statute provides for some guidelines and safeguards to its

regulator, the Ofcom, in reviewing and revising the Standards Code unlike in the Kenya

Communications (Amendment) Act 2008 which has this lacuna.

3.2 The Communications Commission of Kenya

The Communications Commission of Kenya was established in February 1999 by the Kenya

Communications Act 1998 to “licence and regulate telecommunications, radio communication

108Section 319, Audiovisual Media Services Directive (Directive 89/552/EEC as amended by Directive 97/36/EC and by Directive 2007/65/EC).109Ibid Section 319(3).

28

and postal services in Kenya”.110 It serves several functions which include, inter alia: i) licensing

(telecoms and postal/courier) operators ii) regulating tariffs for monopoly areas iii) managing the

radio frequency spectrum iv) type-approving communications equipment v) formulating

telecommunication numbering schemes and assigning them to network operators.

In the United States, the Federal Communications Commission (FCC) is the equivalent of the

Communications Commission of Kenya. It is an independent US government agency established

by the Communications Act of 1934 and is charged with the role of regulating interstate and

international communications by radio, television, wire, satellite and cable.111 Media Bureaus

regulates AM, FM radio, television broadcast stations, cable television and satellite services.112

Various provisions from different legislations granting powers to the Commission as the

regulator of telecommunications, radio communication and postal services need examination in

light of whether there needs to be checks and balances. Section 46(1) H of the Communications

(Amendment) Act 2008 raises several issues relating to the independence of the Communications

Commission of Kenya in carrying out its mandate. Under section 33 of the Kenya

Communications (Broadcasting) Regulations 2009, the Communications Commission of Kenya

is empowered to prescribe a programme code that sets the standards for the time and manner of

programmes to be broadcast by licencees. Where any body of broadcasters wish to operate

under its own Programme Code it shall submit such a Code to the Commission for approval to

which it will regard standards such as taste and decency of programme material; advertising,

infomercials, sponsorships; news, public affairs, analysis and commentaries; children

programmes, liquor, dangerous drugs and cigarettes, programming likely to incite, promote

hatred or vilify any person or community on the basis of ethnicity, race, gender, religion, culture,

age, disability and such other matters as the Commission may prescribe from time to time by

notice in the gazette.113

The Kenya Communications (Radio Communications and Frequency Spectrum) Regulations

2009 provides that in considering applications for frequency assignment, the Commission shall

take into consideration spectrum availability for the type of service and proposed location,

110http://www.cck.go.ke .111http://www.fcc.gov .112Ibid.113Section 34(2) , The Kenya Communications (Broadcasting) Regulations 2009.

29

whether the proposed service can be satisfied by any other means of communication e.t.c.114 The

Commission is also given powers to assign the use of a frequency or frequencies to the applicant

and shall take into account all technical data of the equipment and associated accessories

proposed to be used by the applicant.115

Owing to the gravity of such powers of prescribing and reviewing the programme code116,

considering applications for frequency assignment and assigning the use of frequencies to

applicants117, the question of the independence of the Commission is imperative. Section 5 B of

the Kenya Communications (Amendment) Act of 2009 provides that the Commission shall

exercise its functions independent of any person or body. In contrast, section 3 of the

Independent Communications Authority of South Africa Act (hereinafter referred to as the

ICASA Act) provides:

“(3) The Authority is independent, and subject only to the constitution and the law, and must be impartial

and must perform its functions without fear, favour or prejudice

(4) The Authority must function without any political or commercial interference”

The Independent Communications Authority of South Africa establishes the Independent

Communications Authority of South Africa (ICASA) as a “sector-specific regulator for

broadcasting and telecommunications, the Media Development and Diversity Agency Act which

aims to promote media development and diversity in South Africa and establishes the Media

Development and Diversity Agency (MDDA)”.118 Further, vide section 5 of the ICASA Act the

minister is to appoint seven of the councilors of ICASA with the recommendation of the

National Assembly subsequent to a public hearing with all the candidates. Section 3 of the

MDDA Act (No. 14 of 2002) encourages ownership and control of, and access to media by

historically disadvantaged communities and historically diminished indigenous language and

cultural groups.

114Section 4(1), The Kenya Communications (Radio Communications and Frequency Spectrum) Regulations 2009.115Ibid Section 4(2).116Section 46 (1) H, Kenya Communications (Amendment) Act 2008; Section 33, Kenya Communications (Broadcasting) Regulations 2009.117Supra note 110.118Shale, I.P. (2008). Who is watching Who? Regulation of Media and Freedom of Expression in Uganda: A Critical Analysis of the Press and Journalists Act 1995 ( LLM dissertation, University of Pretoria, 2008)..

30

It is noteworthy to indicate the provisions of the Proposed New Constitution 2010. It

comprehensively provides for the freedom of the media which is a major improvement from the

sketchy section 79 of the current constitution. For instance, section 33 provides for the right to

freedom of expression extending to artistic creativity, academic freedom and freedom of

scientific research. In addition, section 34 safeguards the independence of the media from state

manipulation and bar from penalizing individuals for any opinion or view of broadcast content.

Perhaps the freedom of broadcasting media to establish subject only to licensing procedures

guards against miuse of licensing procedures for selfish or political reasons. However, as the

researcher writes this the Draft still remains to be passed and these provisions are cited here for

academic reasons.

Even with the safeguards provided for in the ICASA Act for ICASA’s independence, clarity

needs to be shed on how the regulating institution is expected to be free from political and

commercial influence through some standard mechanism as is spelled out in the

Communications Act 1934.

3.3 The Media Council

The Media Council of Kenya “ is an independent national institution established by the Media

Act, 2007 as the leading institution in the regulation of media and in the conduct and discipline

of journalists” whose membership is drawn from media stakeholders including the Media

Owners Association, Kenya Union of Journalists, Kenya Correspondents Association, Kenya

Editors Guild, Public Relations Society of Kenya, Kenya News Agency, Private and Public

Universities, the Kenya Institute of Mass Communication and the Law Society of Kenya.119

Established by section 3 of the Media Act No. 3 of 2007 as a body corporate, the Council

comprises thirteen members120 which form three committees namely; the Accreditation and

119 http://www.mediacouncil.or.ke/ (accessed 22nd February 2010).120Section 6(1) Media Act No. 3 of 2007. The thirteen members will include two persons nominated by the Kenya Union of Journalists, three persons nominated by the Media Owners Association, one person nominated by the Law Society of Kenya, one person nominated by the Editor’s Guild of Kenya, two persons nominated by schools of journalism or recognized universities, one representing public universities and the other representing private universities, one person nominated by the Kenya Correspondents Association, one person nominated by the Public Relations Society of Kenya, one person nominated by the Kenya Institute of Mass Communications and one person nominated by the Kenya News Agency.

31

Training Committee, the Ethics and Public Information Committee, the Finance and

Administration Committee. 121

It is expected that the Council shall operate without any political or other bias and shall be

independent and separate from the government, any political party or any nominating

authority.122 There are five Complaints Commissioners who handle complaints made against

media conduct whereas the Secretariat is the executive arm of the Council and is headed by the

Executive Director who is also the Secretary to the Council.123

3.3.1Functions of the Media Council

Section 4 of the Media Act enumerates the functions of the Media Council as to:

a) mediate or arbitrate in disputes between the government and the media, between the

public and the media and intramedia;

b) promote and protect freedom and independence of the media;

c) promote high professional standards amongst journalists;

d) enhance professional collaboration among media practitioners;

e) promote ethical standards among journalists and in the media;

f) ensure the protection of the rights and privileges of journalists in the performance of their

duties;

g) advise the government or the relevant regulatory authority on matters pertaining to

professional, education and the training of journalists and other media practitioners;

h) make recommendations on the employment criteria for journalists;

i) uphold and maintain the ethics and discipline of journalists as set out in this Act and any

other relevant law;

j) do all matters that appertain to the effective implementation of this Act.

k) compile and maintain a register of journalists, media enterprises and such other related

registers as it may deem fit;

l) conduct an annual review of the performance and the general public opinion of the

media, and publish the results thereof in at least two local newspapers.

121Supra note 110.122Section 5 Media Act No. 3 2007.123Supra note 110.

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3.3.2 The Code of Conduct for the Practice of Journalism in Kenya

The Code of Conduct for the Practice of Journalism in Kenya for our present purposes provides

pertinent issues worth consideration. These are: accuracy and fairness; obscenity, taste and tone

in reporting,; covering ethnic, religious and sectarian conflict and hate speech. As to accuracy

and fairness, a journalist is expected to write a fair, accurate and an unbiased story on matters of

public interest. Whenever it is recognized that an inaccurate, misleading or distorted story has

been published or broadcast, it should be corrected promptly and an apology published or

broadcast.

Journalists are encouraged to avoid publishing obscene, vulgar or offensive material unless such

material contains a news value which is necessary in the public interest and further, to avoid

publication of photographs showing mutilated bodies, bloody incidents and abhorrent scenes

unless such publication will serve public interest.

Similarly, news, views or comments on ethnic, religious or sectarian dispute should be published

or broadcast after proper verification of facts and presented with due caution and restraint in a

manner which is conducive to the creation of an atmosphere congenial to national harmony,

amity and peace. Also, news reports or commentaries should not be written or broadcast in a

manner likely to inflame the passions, aggravate the tension or accentuate the strained relations

between the communities concerned.

To be avoided too by journalists is making derogatory remarks on people based on ethnicity,

race, creed, colour and sex. Careful account should be taken of the possible effect upon the

ethnic or racial group concerned, and on the population as a whole, and of the changes in public

attitudes as to what is and what is not acceptable when using such terms.

These principles constitute self-regulation mechanisms which are applicable to the broadcast

media. They constitute guidelines, directions and public expectations of the manner and nature of

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journalistic functions. Owing to this, regrettably, they don’t mete out punishment for their

breach.

3.4 Conclusion

Although an argument could be raised on the independence (or lack of it) of the Communications

Commission of Kenya due to lack of a provision guaranteeing its freedom from political or

commercial interference, questions which arise are twofold: One, is there a need for a specific

provision which will underscore the need for the Commission to be free from political or

commercial interference? Secondly, and most importantly, which body as between the

Commission and the Media Council is best suited to check the media? Put differently, which is

the ‘lesser of the two evils’ in curbing irresponsible journalism?

Mere provision for the independence of the Commission, though an act of ex abundante cautela,

cannot be the magical wand for ensuring that the Commission discharges its duties devoid of

external influence. Be that as it may, perhaps what will be instructive to consider will be whether

the Commission carries its statutory mandate in tandem with the guidelines provided for in the

statutes. On a broader view, the stipulations are clear and unambiguous in relation to the

requisite requirements for grant of licences124 and revocation of licences.125

124 Under Section 46 C (3) of the Communications (Amendment) Act 2008 a licence is only granted upon fulfillment of conditions such as the licensee broadcasting in geographical limits that the Commission prescribes, inclusion of local content in programme schedule, payment of fees to be prescribed by the Commission and fulfillment of conditions which the Commission may prescribe; similarly, under Section 46 D (2) the Commission is given specific guidelines to follow while considering applications for the grant of a broadcasting licence which include public interest, diversity and plurality of views, availability of radio frequency spectrum e.t.c.125Section 46 J of the Communications (Amendment) Act 2008 requires that the Commission revokes a licence where the licensee is in breach of the provisions of the Act or conditions of a broadcasting licence or fails to use the assigned broadcasting frequencies within one year after assignment by the Commission.

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The Media Council as an institution is ill-equipped in curbing irresponsible journalism since its

functions, defined by the Media Act of 2007, are merely prescriptive rather than proscriptive and

punitive. As such, while it may perform the role of ‘uphold and maintaining the ethics and

discipline of journalists’ there are no specific measures it can undertake for breach and where it

can recent history has indicated that it is either unable or unwilling to do so. Writes Philip

Ochieng:

‘…evidence from real life shows irrefutably that, just as commercial interests force owners of the media

operating in the West itself to suppress certain kinds of truths, so too the same commercial interests force

the same owners of media operating in the Third World to ally themselves with the Third World

Establishments in the suppression of a set of ideas for which both have great antipathy.’126

So, as it were, the media finds itself juxtaposed between competing market interests in the form

of powerful media conglomerates and the need for serving public interests. This usually involves

a careful balance which sometimes breaches the very essence of journalism which is to entertain

and to inform. One commentator has opined:

‘…the media systems in the early 21st Century are given over largely to entertainment. Even many so-called

‘news media’ allocate only a small part of their content to public affairs—and a tiny amount to disclosure

of official wrong-doing’127

Faced with such unique challenges, the Media Council is incapable of discharging its functions

well if placed on the same pedestal as the Communications Commission. As between the two, if

a question is to be asked whether which is independent and in need of more reform then the

Media Council answers to this. The Communications (Amendment) Act 2008 gives limited

discretion to the Commission in the performance of its roles whereas the Media Act No. 3 of

2007 spells out wide, arbitrary and open roles to the Media Council. Similarly, the composition

of the Council is predominantly from the media fraternity save for representatives from Law

Society of Kenya, public and private universities and Public Relations Society of Kenya. This

presents a curious observation of how impartial the Council will be in arbitrating matters for

which complaints have been raised against the media.

CHAPTER FOUR

126Ochieng, P. (1992) I Accuse the Press. Nairobi: Initiatives Publishers p. 115.127Curran, J. & Gurevitch (Eds) (2000) p. 122.

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COMPARATIVE ANALYSIS OF REGULATION OF BROADCAST MEDIA

4.0 Introduction

The broadcast media has been the subject of stricter regulation than the press. Such regulation

varies from one country to another depending on their peculiar circumstances, their institutional

capacities, level of their democracy and adherence to international instruments. We have

examined the Communications Commission of Kenya as a regulator, among other media

institutions, of the electronic media. The role of the Media Council has also been considered as

part of self-regulation mechanism of the broadcast media. However, a comparative analysis with

other jurisdictions could assist in drawing similarities and differences which could assist in

extracting best practices for the Kenyan broadcast media and its institutions.

The United States of America and South Africa have been chosen by the researcher for two

reasons. One, U.S has been touted as upholding freedom of the press and therefore calling for an

examination of its institutions. Two, South Africa used to have very repressive media laws

during apartheid but after its end it has revamped its media institutions and provided progressive

legislations protecting freedom of expression. These two countries have been chosen not because

they are the best models but they offer an opportunity for closer scrutiny of their regulating

institutions and legislations and how they operate. But care has to be taken in this regard because

media policies, regulations and institutions are products of the society achieved through its

collective experience, peculiar circumstances and political history. While parallels might be

drawn between one country and another, it should be borne in mind that ultimately there are

fundamental structures that media regulators have to have so that they are able to discharge their

duties impartially and effectively. Similarly, there are international instruments which safeguard

freedom of speech and the minimum threshold expected for effective functioning of the media in

any country.

Thus, a comparative analysis offers this opportunity to examine the strengths and shortfalls of

legislations in Kenya, South Africa and U.S. Such an exercise critiques the relevant legislations

with the aim of recommending what best suits the media and society particularly Kenya.

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4.2 South Africa

During apartheid South Africa’s media was shackled under repressive government censorship.

The provisions of the Radio Act, 1952, and the Broadcasting Act, 1976, were the statutes with

which the government controlled the telecommunications and broadcasting industry.128With the

end of apartheid in 1994 and enactment of the constitution, freedom of the press was reinstated.

In this spirit bodies such as the Independent Media Commission, the Transitional Executive

Council and the Independent Broadcasting Authority were formed.129 Established by the

Independent Broadcasting Authority Act, the Independent Broadcasting Authority promotes the

provision of a diverse range of radio and television broadcasting services; ensure issuance of

licences which reflect cultural diversity of South Africa and sets acceptable standards for

programmes and advertising.130 With the coming into effect of the Broadcasting Act 1999, the

provisions of the Independent Broadcasting Authority Act were supplemented and South African

Broadcasting Corporation (SABC)131 restructured.132 The constitution provides for freedom of

expression which includes freedom of the press and other media, freedom to receive or impart

information or ideas, freedom of artistic creativity, academic freedom and freedom of scientific

research.133 However, this does not extend to propaganda for war, incitement of imminent

violence or advocacy of hatred based on race, ethnicity, gender or religion.134 There are instances

where this right could be limited as long as it is “reasonable” and “justifiable” and shall have

regard to the nature of the right, the importance of the purpose of the limitation and the nature

and extent of the limitation.135

4.2.1 The Independent Communications Authority of South Africa

The Independent Communications Authority of South Africa (ICASA) is the regulator for the

South African communications, broadcasting and postal services sector established by the

128 http://www.bowman.co.za/Broadcasting/Index.asp (accessed 10th March 2010).129 Ibid.130 Section 4, Independent Broadcasting Authority Act 2000.131 South African Broadcasting Corporation is the state-owned broadcaster in South Africa which is the equivalent of KBC in Kenya.132 Supra note 1; for more on the restructuring of the SABC, regulation on telecommunications and the current regulatory framework of the media in South Africa check http://www.bowman.co.za/Broadcasting/Index.asp.133 Section 16(1), Constitution of the Republic of South Africa No. 108 of 1996.134 Section 16(2), Constitution of the Republic of South Africa No. 108 of 1996.135 Section 36, Constitution of the Republic of South Africa No. 108 of 1996.

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Independent Communications Authority of South Africa Act of 2000.136 It licenses and regulates

electronic communications and the postal sector.137 ICASA also monitors licensee compliance,

manages radio frequency spectrum and protects consumers.138 It has various divisions.139

The independence of the Authority is safeguarded by section 3(3) of the ICASA Act which

provides that it shall be “independent and subject only to the constitution and the law and must

be impartial and must perform its functions without fear, favour or prejudice”. Further, the

Authority shall function without any political or commercial interference.140

4.2.2 The Press Council of South Africa

The Press Council of South Africa, a body set up as a “self-regulatory mechanism…by the print

media to provide impartial, expeditious and cost-effective adjudication to settle disputes”, is

committed to protecting freedom of expression and excellence in journalistic practice and

ethics.141 It has adopted the South African Press Code (hereinafter referred to as the Press

Code)142 and is its custodian. The Council is composed of a total of twelve members formed by

six press representatives and six public representatives.

One of the key provisions in the Press Code is on the Complaints Procedures found under Part B

of the Code. An Ombudsman receives complaints from aggrieved persons or bodies to which he

endeavours to achieve a settlement.

136 http://www.icasa.org.za/ (accessed 10th March 2010).137 Ibid.138 Ibid.139 These are the Engineering and Technology Division, the Licensing and Compliance Division, the Markets and Competition Division, the Complaints Division, the Consumer Affairs Division, the Legal Division and the Communications Division.140 Section 3(4), the Independent Communications Authority of South Africa Act.141 http://www.presscouncil.org.za/ (accessed 29th March 2010).142 The Code covers areas such as truthful, accurate and fair reporting of news, prohibition of the publication of child pornography, prohibition of discrimination and hate speech, where advocacy of strong and controversial views are permissible, need for due care and responsibility in regard to the presentation of brutality, violence and atrocities.

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4.2.3 Critique

In as much as the South African Constitution is commendable, there is need to probe it. The

laudatory comments it has received have not escaped the attention of one commentator:

‘Perhaps no constitution has been the subject of as much rave reviews and romantic hyperbole as the

constitution of post-apartheid South Africa. It might very well be that it deserves all the praise that is

lavished upon it; it is a magnificent constitution but it is debatable whether it is necessarily superior to all

others…’143

This could have been informed by the “experiences of other countries in constitutionalism’ on a

general scale but more specifically at addressing pertinent problems closely tied to South African

history.144 Consequently, as a document, the constitution has tried to address past injustices and

experiences from other countries and civilizations. While this might deserve approbation, it will

not necessarily follow that such a constitution could be the antidote to all ills afflicting South

Africans even in the media sphere.

There have been judicial pronouncements in South Africa worthy of mention. As per O’Regan,J

in South African National Defence Union v Minister of Defence:

Freedom of expression lies at the heart of a democracy. It is valuable for many reasons, including its

instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral

agency of individuals in our society and its facilitation of the search for truth by individuals and society

generally. The Constitution recognizes that individuals in our society need to be able to hear, form and

express opinions and views freely on a wide range of matters.145

143 Makali, D. (Ed.) supra p. 372.144 Ibid.145 (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999) para. 7.

39

Additionally, freedom of expression has been regarded as a “web of mutually supporting rights”

in the constitution146 and a “sine qua non for every person’s right to realise her or his full

potential as a human being, free of the imposition of heteronomous power”.147

4.3 The United States of America

4.3.1 The Federal Communications Commission

The Federal Communications Commission (FCC) is an independent United States government

agency established by the Communications Act of 1934 charged with regulating interstate and

international communications by radio, television, wire, satellite and cable.148 It is directed by

five Commissioners serving terms of five years appointed by the President with the advice and

consent of the Senate.149There are seven operating Bureaus and ten staff Offices. For our

purposes, mention of a few will do: Media Bureau which regulates AM, FM radio and television

broadcast stations, cable television and satellite services; Consumer and Governmental Affairs

Bureau which educates and informs consumers about telecommunications goods and services

and coordinates telecommunications policy efforts with industry and other governmental

agencies. The Enforcement Bureau enforces the Communications Act and the rules of the

Commission.

It should be noted that the commissioners are not supposed to be financially interested in any

company manufacturing or selling telecommunications equipment or be interested in any way as

to compromise his ability of discharging his responsibilities as a commissioner. To curb political

infiltration, there is a requirement that three of the commissioners may be of the same political

party.

4.3.2 Critique

146 See Case and another v Minister of Safety and Security and others (CCT20/95, CCT21/95) [1996] ZACC 7; 1996 (3) SA 617; 1996 (5) BCLR 608 (9 May 1996); As per Mokgoro J, in para. 25 “But my freedom of expression is impoverished indeed if it does not embrace also my right to receive, hold and consume expressions transmitted by others. Firstly, my right to express myself is severely impaired if others’ rights to hear my speech are not protected. And secondly, my own right to freedom of expression includes as a necessary corollary the right to be exposed to inputs from others that will inform, condition and ultimately shape my own expression. Thus, a law which deprives willing persons of the right to be exposed to the expression of others gravely offends constitutionally protected freedoms both of the speaker and of the would-be recipients”.147 Case case Para 26.148 http://www.fcc.gov/aboutus.html (accessed 10th March 2010).149 Section 4[47 U.S.C. 154] (a), Communications Act 1934.

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Although the United States of America has been lauded as a paragon of freedom of expression,

such needs examination. Attempts at justifying such superiority have been propounded by

commentators, including Justice Scalia of the United States Supreme Court, who have proposed

that “Americans enjoy greater political and civil rights than the Russians”.150 Judicial activism of

the Supreme Court Judges151 perhaps extol these fundamental guarantees of American tolerance

for freedom of expression. Justice Oliver Wendell Holmes is credited for ‘Classic Market-place

of Ideas’ postulation in his dissenting speech:

‘But when men have realized that time has upset many fighting faiths, they may come to believe even more

than they believe the very foundations of their own conduct that the ultimate good desired is better reached

by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the

competition of the market, and that truth is the only ground upon which their wishes safely can be carried

out. That at any rate is the theory of our Constitution.’152

Like his friend Holmes, Justice Louis Brandeis has also given one of the most powerful defences

for freedom of expression:

‘Those who won our independence believed that the final end of the state was to make men free to develop

their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They

valued liberty both as an end and as a means. They believed liberty to the secret of happiness and courage

to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are

means indispensable to the discovery and spread of political truth..that the greatest menace to freedom is an

inert people; that public discussion is a political duty; and that this should be a fundamental principle of the

American government...Believing in the power of reason as applied through public discussion, they

eschewed silence’153

However, even with these hallmarks, America is tainted by its collective history of racial

intolerance, judicial lethargy on the front of freedom of expression protection in the McCarthy

era and its treatment of members of the Communist Party and those suspected of espionage.

Levy has said that, “the persistent image of colonial America as a society in which freedom of

expression was cherished is an hallucination of sentiment that ignores history”.154 As Mulei, C.,

et al. observe:

150 Makali, D. (Ed) supra p. 375.151 Such as Oliver Wendell Holmes, Louis Brandeis, James Madison e.t.c.152 Abrams v United States (1919) ; in dissent, 250 U.S. 616.153 Whitney v People of State of California (1927) 274 U.S. 357.154 Makali, D. (Ed.) supra p. 20.

41

‘Historically, a few countries, among them United States and Sweden, can claim to be liberal compared to

the mostly repressive rest of the world with regard to media freedom. But that is not necessarily to agree

with the views of author Nadine Strossen who has bluntly asserted that “the United States has one of the

freest presses in the world, operating relatively unconstrained by the legal or other pressures’155

Further, in what has puzzled modern observers, “despite having the First Amendment since

1791...judicial sensitivity to freedom of expression concerns is a relatively recent development”

occasioned by heavy-handed government intrusion and manipulation.156 Also, judicial review

was an alien concept in the American Constitution until the judicial decision of Justice John

Marshall in the case of Marbury v Madison.157 In contrast, section 84 of the Kenyan Constitution

provides for an avenue for redress in the High Court for breach of one’s fundamental rights and

freedom.

It must however be pointed out that in as much as the United States of America is the prototype

of free media, she is a product of her collective history and circumstances. In essence, she might

be the exemplar of freedom of expression but cannot be faulted because her system might be

archetypal but never faultless.

4.4 Conclusion

It might be argued that the Communications Act 1934, just like the ICASA Act, has provided for

the independence of the media regulating institutions from commercial and political interference

something which is lacking in the Communications (Amendment) Act 2008 save for Section 5B

which provides that “…the Commission shall exercise its functions independent of any person or

body”. This is hardly comprehensive and it creates a lacuna for manipulation of the Commission

thus compromising its independence.

The Proposed New Constitution of 2010 contains some provisions on freedom of expression and

of media. An improvement from the current constitution, section 33 of the draft provides for the

right to freedom of expression which incorporates freedom of artistic creativity, academic

freedom and freedom of scientific research. These are not provided for under the current

155 ibid p. 361.156 Ibid p. 376, also p. 361.157 (1803) 5 U.S. (1 Cranch) 137.

42

constitution. Worthy of mention is also the incorporation of the provisions of Article 20 of the

International Covenant on Civil and Political Rights. These are in limitation of this right to

freedom of expression against propaganda for war, incitement to violence and hate speech.

Section 34 provides for the freedom of the media and bars the State from controlling the media

and penalizing individuals for any opinion or view of broadcast content. In addition,

broadcasting and other electronic media are given freedom of establishment subject only to

licensing procedures. Similarly, a curious observation relates to the need for a state-owned media

to afford fair opportunity for the presentation of divergent views and dissenting opinions.

Perhaps this provision is informed of the excesses of Kenya Broadcasting Corporation when it

was put under the manipulation of party politics.

Even with the safeguards provided for in the ICASA Act for ICASA’s independence, clarity

needs to be shed on how the regulating institution is expected to be free from political and

commercial influence through some standard mechanism as is spelled out in the

Communications Act 1934.

CHAPTER FIVE

SUMMARY, CONCLUSION AND RECOMMENDATIONS

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5.0 Summary and Conclusion

Regulation of the broadcast media is a vexed issue. This owes to the fact that on one hand there

is need for upholding freedom of expression and therefore calling for restraint in policy and legal

measures that might be seen as a “gag” to press freedom and on the other hand there is a need for

safeguarding public interest since the airwaves are public property which need to be used wisely

and in accordance with the wishes of the public. Consequently, a balance ought to be struck

between these two extremes which will ensure a better operation of the broadcast media.

The best philosophy which will therefore define the broadcast media is thus a worthy suggestion.

There are different press theories postulated which include Authoritarianism, Libertarianism,

Social Responsibility Theory, Soviet Media Theory, Development Communication Theory and

Democratic Participant Theory. Arguments might be advanced on what press theory best

encapsulates the Kenyan broadcast media situation. Such a task is arduous due to the hybrid

manifestations of the various press theories and the rapid changes in society, occasioned by

events, political changes and the common history of a country. Similarly, a certain press theory

could be manifested on a deceptive superficial level but rendered nugatory by test of democracy,

change of regime or a changed Executive stance on the media.

As it were, there are two divides of broadcast media regulation: self regulation in the form of the

role of the Media Council and state regulation arguably in the form of Communications

Commission of Kenya.

The Media Council has been bestowed with the role of safeguarding the interests of journalists

and improving on their ethics and professionalism. Its membership is designed in such a way that

the Council is able to look into the internal affairs of journalism with realization of the

importance of freedom of expression. However, such a Council could be faulted considering the

fact that, if it be true, media conglomerates are driven by commercial and market forces which

have the capacity of permeating into the Council thus sacrificing its objectivity, impartiality and

search for public interest and professionalism. There have been complaints about the role of the

FM radio stations in fanning ethnic hatred, holding talk shows with sexual connotations and TV

stations airing materials without regard to the children audience. These issues raise serious

questions about the extent to which the Media Council can assist in “self-regulating” the

broadcast media itself. Is it that its role is prescriptive and not proscriptive, or subjective rather

44

than objective and wide and discretionary rather than limited and measurable? Put differently,

are the blames leveled against the Media Council justified or is it a case of misdirected blind

criticism on an otherwise presupposed internal mechanism for improving journalism practice

here in Kenya? To what extent is the Code of Conduct for the Practice of Journalism in Kenya

effective and what could be done to improve it?

These are pertinent questions with no clear-cut answers. Whereas the milestones achieved by the

Media Council cannot be quantified, the inherent deficiency in such an exercise is a pretension

that the Council’s roles are fixed with ultimate fixed results. On the contrary, the Council’s role

might be an exercise of a slow and gradual process whose effects might not be rapid and visible

but all-encompassing and cross-cutting. Perhaps, then, such a debate as to whether the Council is

objective or subjective might be without merit because the media itself, same with the Council

and society, is a product of an array of concealed interests. The question that begs is how the

Council could be improved so that it can discharge its functions in a better way. The roles of the

Council are clearly defined in the Media Act 2007. On a legal level, there are recommendations

suggested for the Council. On a social level, the Council needs to re-examine itself and be ready

to “bite the bullet” where journalistic standards have been sacrificed and admonish these and

conduct seminars and awareness programmes on the recommended journalistic practices. This

line of thought is merely platitudinous and cannot suggest areas for legal reform.

The Communications Commission of Kenya, backed by state support, legal mandate and

properly structured modus operandi and defined limits and criteria for arriving at its decision,

perhaps befits the hallowed ground of being the elixir for regulating the media than the Media

Council. The Media Council finds itself trapped in an amorphous setting, though backed by a

legal mandate through the Media Act 2007, it is cast in a position where its functions are not

followed by some properly formulated monitoring mechanisms.

5.1 Recommendations

Having examined the Communications (Amendment) Act 2008, the Media Act No. 3 of 2007

and the Kenya Communications (Broadcasting) Regulations 2009, there are weaknesses

manifested in these statutes which need reform. Proposed amendments will be suggested. The

institutions of the Media Council and the Communications Commission of Kenya will then be

looked at briefly and recommendations given on ways in which they could be improved.

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5.1.2 Reforming the Statutes

a) Communications (Amendment) Act 2008

Section 46 (1) H of the Communications (Amendment) Act 2008 empowers the commission to

set standards for the manner, time and type of programmes to be broadcast by licensees under the

Act. Subsection 2 of the Act empowers the commission to prescribe a Programme Code, review

it every 2 years and prescribe a watershed period of programming for children. The Programme

Code is not defined save for Section 33 of the Kenya Communications (Broadcasting)

Regulations 2009 where the Commission’s role is replicated. Although there could be no

discrepancy in this provision, such a power is wide and expectedly so where the Programme

Code is not defined in law but left to be construed by the Commission. In the interpretation

section of the Communications Act 2008, a Kenyan programme is defined to mean “sounds or

vision or a combination of both whose content comply with the classification of local content as

may be required by the Commission from time to time”. Questions of public tastes or “local

content” have no definite answers especially where the Programme Code is not defined thus

leaving it to manipulation.

Recommendation

Need for Definition of Programme Code: Although a precise definition of the Code could be

limiting if not imprudent, a broad overview of what should guide it is suggested. It should give

the general outlines of what the Code prescribes upon which the Commission can discharge its

mandate.

b) Kenya Communications (Broadcasting) Regulations 2009

The Kenya Communications (Broadcasting) Regulations 2009 (hereinafter referred to as the

Regulations) has been criticized for granting upon the Commission the discretion of determining

other requirements before granting licence and need for an applicant to demonstrate capability to

offer a minimum of ten channels to each subscriber.

46

Recommendations

Deletion or rewording of the clause: Section 3 (1) (e) of the Regulation indicates ‘such other

information or requirement as the Commission may from time to time prescribe’ in relation to

the requirements that need to be furnished by the Commission. This ought to be deleted

altogether or alternatively reworded in such a manner as to involve consultation in the process if

there are no exhaustive and detailed criteria.

Deletion of clause: Section 3 (2) of the Regulation provides the requirement for applicants to

satisfy the Commission of capacity to offer a minimum of ten channels to each subscriber. This

clause needs to be deleted for two reasons: One, capacity to offer channels is dictated by

availability of channels in the multiplexer, and two, it does not allow licencees the ability of

judging the number of channels to offer due to market demands, profit margins and a wide array

of other factors.

5.1.3 Reforming the institutions

a) The Communications Commission of Kenya

The issue of the independence or lack of it, of the Communications Commission of Kenya needs

examination. Section 5 B of the Kenya Communications (Amendment) Act of 2009 provides that

the Commission shall exercise its functions independent of any person or body. This is not

satisfactory since it doesn’t safeguard the institution from political or commercial interests.

Recommendations

i. Insertion of the clause ‘political or commercial interests’: Although it could be

argued that express provision for bar of the Commission from political or commercial

interests could not be the panacea for its independence or not, there is wisdom in

inserting these words in the statutes as a precautionary measure. However, the

greatest test of whether the Commission will indeed be independent from political or

commercial interests lies in its collective philosophy, need to uphold democracy and

operation within the ambit of the law that forms it.

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ii. Publicization of the Commission’s activities: The Commission should be made

‘relevant’ to the ordinary person. This will entail conduction of awareness campaigns

in the media, updating its website regularly and making it simple for an ordinary

Kenyan to understand its composition and roles.

iii. Sustainability: The Commission is currently state-regulated. While there is no

discrepancy in this since it is the practice even in other jurisdictions, problems might

arise where a dictatorial regime might want to compromise the probity of the

Commission’s activities either in rewarding it for a folly or punishing it for sticking to

its mandate. Moreover, even when the state might be willing to support the activities

of the Commission, the funds it channel might be limited in comparison to its wide

mandate. The Commission could avoid such an eventuality by finding alternative

means of deriving its funds through investments which could substantially boost its

relevance and efficacy.

b) The Media Council

Perhaps the two essential functions played by the Council as provided for under section 4 of the

Media Act relate to arbitrating disputes between the government and the media and upholding

journalistic standards and ethics. In the promotion of these roles, the Council could follow these

guidelines:

Recommendations

i. Awareness Campaigns: There is need for awareness and sensitization to be conducted

first to the media practitioners on the kind of journalistic ethics that is expected of them.

This will take the form of continuous education on emerging issues in their fields whether

in the legal sphere or need to uphold high journalistic standards for public good. The

general public also needs to be sensitized on the role of the media and what they could do

to improve it in relation to desisting from restriction from issuing hate speeches and their

right to decent programmes for them and their children. Complaints procedures need to

be demystified so that the general public is aware of such recourse.

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ii. Need for collaboration with the Commission: The Commission is normally regarded

by the media as ‘tight-fisted’ government machinery ready to clamp down on media

freedom. Such a perception, whether real or imagined, will greatly be assuaged by mutual

collaboration and assistance between the two bodies. The Council could do well in

improving the media by fostering good relations with the Commission in legal and policy

guidelines and seeking ways in which errant journalists cannot further dent the image of

journalism.

iii. Steps against dwindling standards in FM Radio Stations: Given that the Council is

mandated to look into the ethics and standards of journalists, the Council needs to

examine the rising cases of sexual connotations in FM Radio Stations and query raised

about the role that the radio stations played in fanning ethnic hatred. This role cannot be

left to the government and the Commission to deal with.

iv. Strengthening the Ethics and Public Information Committee: Save for its mention

under the Media Act, the Ethics and Public Information Committee’s functions have not

been publicized. It is from sensitization of the public of the Committee’s roles and

relevance that media sanity, prejudices, misconceptions and mechanisms for recourse

could be shaped, improved, corrected and restored.

v. Demystifying the Complaints mechanism: Although the mechanism and procedure for

lodging complaints are clearly provided in the Media Act, the general public remains

almost totally oblivious of such mechanism. Further, the procedure for lodging

complaints electronically should be strengthened in the Media Council website and made

consumer-friendly. On a different note, too, the website needs to be spruced up and

updated regularly so that it keeps tab with the progress and challenges in media. This

should also be done in the Kiswahili language for which the common consumer is well-

accustomed to.

vi. Promotion of judicial activism: There has been a general feeling that the judiciary has

been lethargic if not unnecessarily hard in advancing freedom of expression in Kenya.

This has taken the form of its approach and punishment meted out in defamation suits.

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While this stance has the benefit of upholding professionalism, decency and recourse for

injury suffered by a victim, the long term effect of this is subjugation of media freedom

and creativity. Whereas provisions of law could be interpreted in such a way as to capture

the spirit of the law, this ought to be done in such a way as to strike a balance between

the need to uphold freedom of expression and serving private and public interest. There is

need for the judiciary to break away from constricting and limited interpretation of

freedom of expression and adopt a broad-based, wide-ranging and germane approach to

media issues.

BIBLIOGRAPHY

Books

Baker, C.E. (1989) Human Liberty and Freedom of Speech. New York: Oxford University Press.

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Bittner, J.R. (1991) Broadcasting and Telecommunications: An Introduction. 3rd Ed. New Jersey:

Prentice-Hall, Inc.

Curran,J. (2000) “Rethinking Media and Democracy” in J. Curran and M. Guvevitch (Eds.),

Mass Media and Societ. New York, NY: Oxford University Press Inc. (p. 120-154).

Gibbons, T., (1998). Regulating the Media. London: Sweet and Maxwell.

J. Milton., Areopagitica, A speech for the Liberty of Unlicensed Printing ed. Noel Douglas

(London: Humphries & Co. Ltd., 1927).

Gray, J. & Smith, G.W. (Eds.) (1991). On Liberty in Focus. New York, NY: Routledge London

and New York.

Mill, J.S.(1869) On Liberty. (4th Ed.) London: Longmans, Green, Reader and Dyer.

Makali, D. (Ed) (2003). Media Law and Practice: The Kenyan Jurisprudence. Nairobi: Phoenix

Publishers Ltd.

Ochieng, P. (1992) I Accuse the Press. Nairobi: Initiatives Publishers.

Stone, G., Seidman, L., Sunstein, C., Tushnet, M., Karlan, P. (2003) The First Amendment. New

York, NY: Aspen Publishers.

Zelezny, J.D., (1991). Communications Law: Liberties, Restraints, and the Modern Media.

California: Wadworth Publishing co.

Websites visited

http://www.gret.org/parma/uk2/resources/edm/pdf/Kenya

http://www.portal.unesco.org

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http://www.downloads.bbc.co.uk

http://www.digital.lib.msu.edu

http://www.pff.org

http://www.comminit.com

http://www.marsgroupkenya.org/pdfs/2008/10/Waki_Chapters/

Chapter_8_The_media_and_the_post_election_violence.pdf

http://www.pressreference.com/Gu-Ku/Kenya.html

http://www.communication.go.ke/media.asp?id=46

http://www.standardmedia.co.ke/letters/InsidePage.php?id=2000001030&cid=17&

http://www.canlii.org/en/ca/scc/doc/1989/1989canlii20/1989canlii20.html

http://www.digital.lib.msu.edu/projects/africanjournals/pdfs/africa%/zomedia%20review/

volno1/jamr004001003.pdf

http://peoi.org/Courses/Coursesen/mass/mass2.html

http://www.academic.cengage.com/resource_uploads/downloads/0534608132 12978.pdf

http://steinhardt.nyu.edu/scmsAdmin/uploads/000/727/Benson%20Normative%20Theories

%20of%20Journalism%20Comp%20Media%20Class.doc

http://up-ou.academia.edu/AlexanderFlor/Books/94287/Communication-and-Culture--Conflict-

and-Cohesion

http://www.journalismethics.ca/research-ethics/history.htm

http://press-freedom.suite101.com/article.cfm/what_is_the_social_responsibility_theory

http://rezaspace.blogfa.com/post-1014.aspx

https://www.cia.gov/library/publications/the-world-factbook/geos/ke.html

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http://www.cck.go.ke/UserFiles/File/migration_digital_tv.pdf

http://downloads.bbc.co.uk/worldservice/trust/pdf/kenya_media_legal_framework.pdf

http://www.Blackwellreference.com

http://www.law.indiana.edu

www.ealawsociety.org/.../Press_%20release_%20on_%20 Communications _%20Bill.doc

http://www.apc.org/en/system/files/CICEWAKenya20090908_EN.pdf

http://kenyapolitical.blogspot.com/2008/12/media-industry-statement-on-kenya.html

http://www.cck.go.ke

http://www.fcc.gov

http://www.mediacouncil.or.ke/

http://www.bowman.co.za/Broadcasting/Index.asp

http://www.icasa.org.za/

http://www.fcc.gov/aboutus.html

Legislations

The Kenya Communications (Broadcasting) Regulations 2009.

The Kenya Communications (Radio Communications and Frequency Spectrum) Regulations

2009.

Kenya Communications (Amendment) Act 2008.

Media Act No. 3 of 2007.

The Constitution of Kenya.

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Communications Act 1934.

Independent Broadcasting Authority Act 2000.

Constitution of the Republic of South Africa No. 108 of 1996.

International Conventions

International Covenant on Civil and Political Rights Adopted and opened for signature,

ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966

entered into force on 23 March 1976 in accordance with Article 49.

Universal Declaration of Human Rights Adopted and proclaimed by General Assembly

resolution 217 A (III) of 10 December 1948.

African [Banjul] Charter on Human and Peoples' Rights, adopted 27 June 1981, OAU

Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force on 21 October, 1986.

European Convention (Convention for the Protection of Human Rights and Fundamental

Freedoms as amended by Protocol No. 11) Adopted by the Council of Europe in Rome on 4

November 1950.

American Convention on Human Rights entered into force on 18 July 1978.

Cases

Abrams v United States (1919) 250 U.S. 616.

Case and another v Minister of Safety and Security of others (1996) 5 BCLR 608.

Cheserem v Immediate Media Services( 2000) Nairobi HCCC No. 398.

Edmonton Journal v Alberta (Attorney General) (1989) 2 S.C.R. 1326.

54

Marbury v Madison (1803) 5 U.S. (1 Cranch) 137.

South African National Defence Union v Minister of Defence (1999) 6 BCLR 615.

Whitney v People of State of California (1927) 274 U.S. 357.

Other Materials

Abbott, B., Lipsky, JR (1976) “Reconciling Red Lion and Tornillo: A Consistent Theory of

Media Regulation”. 28 Stanford Law Review 563.

Campbell, AJ (1999) “Self-regulation and media”. 51 Federal Communications Law

Journal 715.

Shale, I.P., ‘Who is Watching Who? Regulation of Media and Freedom of Expression in

Uganda: A Critical Analysis of the Press and Journalists Act 1995’. (2008) (unpublished

dissertation) (accessed from http://www.up.ac.za/dspace/bitstream/2263/8081/1/shale.pdf ).

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