Author: Noelina Nabwire, October 24 2013      That the media plays diverse roles is true. Amongst others, the media provides a forum upon which the citizenry engage amongst themselves and with their leaders; disseminates information; plays a public watch dog and is a key player in the democratic process. Thus, given these critical roles, the media ought to operate in an enabling environment.

In Kenya, there is an acute concern regarding the Media Council Bill, 2013, that is currently before parliament. The need to pass media legislation is a command of the Constitution. However, the question is the content of this Bill and whether it is in line with the changes that the Current Constitution intended to introduce.

For instance, Article 34 of the Constitution emphasizes that the State should not control or interfere with any media establishment, and further notes that any regulatory body with authority over the broadcasting and electronic media should be independent and free from any government, commercial or political control and interest.

Unfortunately, this is not the case with the Media Council Bill 2013. A study of the late 1940s Hutchins Commission, A Free and Responsible Press, identified five possible functions as criteria for the assessment of press performance. The press could do one or more of the following:

  1. Provide a truthful, comprehensive, and intelligent account of the day’s events in a context which gives them meaning, a commitment evidenced in part by objective reporting;
  2. Be a forum for the exchange of comment and criticism, meaning in part that papers should be common carriers of public discussion, at least in the limited sense of carrying views contrary to their own;
  3. Project a representative picture of the constituent groups in the society;
  4. Present and clarify the goals and values of the society; and 
  5. Provide full access to the day’s intelligence, thereby serving the public’s right to be informed.

The commission also identified three summary tasks that are central to the press:

  •  Political role: to provide information, to enlighten the public so that it is capable of self-government
  • To serve as a watchdog on government
  • To provide to various segments of the society a sense that they are represented in the public sphere.

Thus, media policy and law practitioners have noted four aspects of the legal environment in which news media operate and where law is a factor, either promoting or impeding news media independence and effectiveness warrant attention: newsgathering; content-based regulation; content-neutral regulation that has the potential to influence content indirectly; and protection of journalists in their professional activity, including protection against physical attacks.

Newsgathering, a key function of the press in a democratic society, is an essential condition of news media effectiveness. Laws concerning newsgathering include those that recognize and guarantee public access to government-controlled information and institutions, with limited exceptions for national security, protection of personal privacy, crime prevention, and other goals. Laws concerning the licensing and accreditation of journalists also relate to this question of effectiveness.

Secondly are laws that deal with content-based regulation, which are viewed as intervention by the public authorities, either through legal means or through extra-legal means. These laws, which seek to advance a range of state, social, and individual interests, operate through forms of prior review censorship, conditions of market entry, and regimes of subsequent punishment for perceived abuses of journalistic freedoms. The scope of such content-related concerns and their methods of enforcement represent a useful yardstick by which to measure whether an enabling environment exists.

The third category comprises laws that are not targeted directly at editorial content: are content-neutral on their face. They instead have an incidental impact and, therefore, create the risk of external manipulation in their application, or else laws that are intended to shield media from external influence.

Finally, there is an examination of issues related to protection of journalists in their professional activity. There are at least two components of this category. The first relates to the matter of journalists’ job security and focuses on internal press freedom or the relationship between journalists and media owners. The second concerns the matter of physical security: Journalists often must endure the threat or the reality of physical attacks upon them from either public or private persons, and the extent to which the legal system protects them is also a key element in an enabling environment.

As currently is, the Media Council Bill deviates from the spirit of the constitution and, if passed as it is, will not create an enabling environment for a free and independent media. First, the Bill empowers the state, through the Cabinet Secretary of the Information and Communication Ministry, to regulate the media. For instance, the Cabinet Secretary can dissolve the current Media Council through declaration of vacancies and convening a selection panel to choose candidates for appointment to the Media Council’s successor. More worrying is the independence of such a panel (convened by the Cabinet Secretary), as the Cabinet Secretary is provided to offer facilities and support the panel in discharging their functions. As though this is not enough, the Cabinet Secretary is expected to select six persons from the 12 submitted by the panel and a further list of three names, to the Cabinet Secretary, from which the President shall appoint the Chair of the Media Council. And, the Cabinet Secretary is further empowered to reject any of the names submitted by the panel, until he/she is personally satisfied with the persons.

The second concern is the section that permits the Cabinet Secretary amend the Code of Conduct for the Practice of Journalism. Although, it is stated that this will be done in consultation with the Media Council, it is worrying.

If not amended, the media in Kenya should be very afraid.


Image credit: Internews