BWIRE: Media regulation in a changing environment
Media and government adversarial relation is not new and unique to Kenya thus the move by authorities to shut down some media houses and commence investigations into the conduct of some journalists with activities should been seen in that context. What is more surprising is that save for the Royal Media Services leadership and Hon Gideon Moi, who is associated with some media houses in Kenya and who chairs the ICT Senate Committee, media owners have remained silent on engaging government to remove the shutdown against Citizen TV, Inooro TV, NTV and KTN.
Similarly, media haters have taken the chance to pour venom on the profession and suggest all manner of suggestions. Biggest surprise is that media itself has not prioritized the move, and focused the matter as a keys news item- international media has done it more than local media on focusing on the matter.
Indeed, there are justifiable grounds provided for in the Constitution when government can intervene on media operations including of national security and public morality, though the requirement is that the government gives prior information on the action, and grounds upon which the action is based.
The shutdown came as a surprise to many as it’s always held that Kenya has one of the best working environments for media in the region. That media freedom is anchored and protected in the most progressive Bills of Rights globally is not in contention. Articles 33, 34 and 35, some of which have been actualized through the Media Council Act 2013, KICA 2013 and Freedom of Information Act 2016 set the stage for the actualization of the Windhoek Declaration.
With nearly 139 radio stations, 60 TV stations on air and over 60 publications on the streets, it always shock people how Kenyan ranks very poorly in global media freedom indexes.
However, these two laws are still problematic and need a review, given that on a number of issues they seem to cause confusion and expose journalists to more harm; especially the fines, board selection and complaints handling.
Whereas the Council is in full support of responsible, free and independent media, we are worried that the current impasse that has seen the government switch off some television stations under both legal and administrative grounds, is an impediment to access to information, freedom of the media and choice, particularly for the citizens of this country and a denial of thousands of Kenyans the various opportunities that are associated with the media industry.
The Council is of the opinion that all the parties involved in the disputes including the government, media owners, editors and other industry players work to find an amicable solution so that the shutdown is cancelled.
The Council is convinced that there is room for negotiation and reaching amicable solutions to the impasse for the benefit of Kenyans.
The media is a very trusted institution in Kenya, and is for this reason that people have touted the role of media in reporting government projects and related functions and political contestation now going on in the country.
On other hand, the Constitution provides for right to information for the media and other Kenyans particularly when it is of national importance because the media has a responsibility to inform the public on matters that affect their lives. Information flow from the policy makers and the government has been problematic for the media, sometimes frustrating their work.
The regulation of media in Kenya is as problematic as in the rest of the world. But while the debate in other parts of the globe is moving towards comprehending the changing dynamics of media and journalism operations with the advent of new media formats thus realigning media regulation regimes, in Kenya the debate seems to be moving away from media self-regulation that has been working well in the professionalization of journalism albeit with challenges, to demanding for more stringent laws, administrative control mechanisms and moral/national values arguments to justify reducing space for free media.
The frenzy to control the media seems to be taking the upper hand in the process, as the voices for those demanding for regulatio especially self-regulation seems to be getting lost.
In fact, it’s becoming fashionable when people especially those in government or public agencies bash the media or call for expanded laws to reign on the media- reduce space for independent and free media The onslaught started with mainstream media, alternative media and is extending to the news media at an alarming rate.
The challenges facing the media in Kenya today can efficiently and adequately be dealt with through the strengthening of the existing self- regulatory body, the Media Council of Kenya, through amending some sections of the Media Council Act 2013 to strengthen the Council and consider an industry driven Code of Conduct that is responsive to emerging trends in the media industry and harmonizing existing laws that relate to the media.
The path we are taking of forcing entities to control the media or adding more laws to regulate must be rethought and abandoned.
The jurisdictional and operational boundaries of the Media Council of Kenya established under the Media Council Act 2013 and the Communications Authority established under the Kenya Information and Communications [Amendment] Act 2013 have been clarified by the Supreme Court of Kenya in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others  eKLR.
The Media Council of Kenya anchored under Article 34(5) as the body to ‘set media standards and regulate and monitor compliance with those standards.’ Section 6(1)(b)(d)(g) and (k) of the Media Council Act  grants the Media Council of Kenya a mandate of prescribing, promoting, setting, developing, monitoring and regulating ethical and professional standards for journalists, media practitioners and media enterprises.
The understanding then was that MCK deals with media professional /content issues and hope this will be maintained, because the recently published programme Code for free to air TV and radio has almost an entire chapter that is a duplication of the code of ethics that is administered by MCK.
This case dealt with in finality Article 34 on Freedom of the Media by clarifying that the two regulatory bodies responsible for media issues are: The Communications Authority of Kenya anchored under Article 34(3) to deal with establishment and licensing of broadcasting media as well as regulating airwaves and signal distribution. Section 5(1) of the Kenya Information and Communications Act  gives the Communications Authority the mandate to license and regulate postal, information and communication services.
We are not going to improve professionalism in the media in Kenya through legal means including enacting outdated laws and administrative codes (codes of ethics, broadcast regulations, programmes codes that include morality arguments) or through strengthening self-regulatory mechanisms (including establishing public editor desks and internal handling procedures in media houses) as in the rest of the world?
The decision to use self-regulation for the media was reached on after it was realized that the many laws that had been enacted were not treating the problems in the industry.
Tim Dwyer in his book: “Media Convergence” notes that in the new networked mediaspheres, existing laws, policies and regulation for content, ownership and control need to change to take care of the new media formats.
Peter Lunt and Sonia Livingstone in their book: Media Regulation and giving the examples of reforms in media regulation in the UK and parts of the Western World notes that media regulation in a global networked world, media relies on individual professional professionals acting responsibly just as Joe Kadhi says is self-regulation the only savior for media in Kenya.
Prof Vinod Kumar in the book Global Trends in Media says journalism ethics is a species of applied professional ethics whose application and evaluation is only relevant when its applied to the most common basic problems that face journalists in the field including avoiding bias, distinguishing news from opinion, minimizing harm and reporting the truth.
Media regulations is not going to done through external means by non-media organizations creating some many laws and administrative codes but journalists themselves through a conducive legal regime that accepts that journalism is s profession and not a craft.
The Writer works at the Media Council of Kenya as the Programmes Manager and a Journalists safety Trainer. email@example.com
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