Why proposed amendments will destroy the media

A human rights activist urges the public to sign a petition

to stop Parliament from curtailing freedom of expression

and also gagging the media.

November 28th 2013

STANDARD, By DAVID OHITO

President Uhuru Kenyatta’s proposed version of the Kenya Information and Communication (Amendment) Bill 2013 is far more offensive than the one passed by Parliament. The President’s memorandum detailing his objection to the KICA Bill passed by the National Assembly - and which sparked outrage - has even more dangerous clauses and punitive sections that sound a death knell to freedom of expression. The Kenya Editors’ Guild (KEG) expressed concern and alarm that the Kenya Information and Communications Bill returned to Parliament poses grave threats to the freedom and independence the media in Kenya has traditionally enjoyed. The Bill still undermines the freedom and independence of the media by seeking to confer on the state-controlled Communications Commission of Kenya (now renamed Communication Authority of Kenya) power to regulate and control media, thereby encroaching on the functions and responsibilities of an independent statutory organ, the Media Council of Kenya.

For an organ controlled by the Executive to usurp such responsibilities would have the ultimate effect of undermining key principles underlined in the Constitution of Kenya with regard to free and independent media governed under the principal of self-regulation and co-regulation. The Communications Authority of Kenya is not the free and independent body envisaged by the Constitution of Kenya to regulate media content. Its functions should be limited to the technical areas of frequency management and administration. WORRYING PROPOSAL In yet another worrying proposal, President Kenyatta recommends that KEG and Kenya Union of Journalists be expunged from the selection panel that interviews members of the Communications and Multimedia Tribunal and included Media Council of Kenya, Kenya Private Sector Alliance, Law Society of Kenya, Institute of Engineers of Kenya, Public Relations Society of Kenya, Kenya National Union of Teachers, Consumers Federation of Kenya and the ministry responsible for matters relating to media. It is not clear what informed this decision. With individual journalists at risk of paying hefty fines of Sh500,000 and media houses facing fines of up to Sh20 million, the end times for many a journalist and even low budget media houses become real. Kenyans will be shut out of communication, and community radio stations, which serve local interests, will simply close down in the wake of such harsh laws. Many community radio stations operate on a budget of about Sh20 million a year and one suit with maximum fines will simply see them closing shop.

The stage has been set for clear State interference in operations of the media contrary to Article 34(5) of the Constitution, which spells out the establishment of an independent body that shall be independent of control by Government, political interests and reflect interest of all sections of society and set media standards and regulate and monitor compliance with those standards. In the memorandum sent by President Kenyatta, the clause that elicited protest from journalists among other stakeholders said it can “impose a fine of not more than twenty million shillings on any respondent media enterprise and a fine of not more than five hundred thousand shillings on any journalist adjudged to have violated this Act”. The upshot is that majority of journalists will be declared bankrupt should they fall victim to this Act or face fines. The fines are stiff and could easily drive a journalist out of practice. In the KICA Bill, the President and the ICT cabinet secretary will have immense and direct powers to declare vacancies and appoint selection panels to interview the tribunal members. ADDRESSING CONCERNS These appointees will be at the whims of the President and cabinet secretary, in contravention of constitutional provisions that bar the State from having control. The director of Article 19, Henry Maina, said there was need to address the concerns raised by various stakeholders with a view to providing solutions through fresh clauses reflecting stakeholder input. He said there are issues of representation of all the bodies created and ensuring that such bodies are independent and protected from undue influence and interference from commercial, Government and political interests. Said Maina: “The President has acknowledged all our arguments. He, however, in his recommendations falls short of providing solutions that may pass the constitutional muster. But the fact that he has not signed it is a first that must be recognised and stakeholders should use the opportunity to engage with Parliament to offer concrete solutions.” KEEPING HIS WORD Former Prime Minister Raila Odinga accused the President of not keeping his word to Kenyans

“The President has not lived up to his word by returning the Bill with draconian clauses. He has shown deceit by reneging on his word,” Raila said. Broadcasters similarly face challenging times after Uhuru recommended that a broadcaster licensed to distribute radio or television programmes shall broadcast on radio or television such percentage of Kenyan programmes as shall be prescribed by the authority. There is a loose clause, which may be abused to include coverage of partisan political and commercial interests that are local, and whereas he proposed to change the clause of 45 per cent local content, it is now open and could be increased by the authority to even 65 per cent. Media houses are going regional and global and it is impractical and discriminatory to start pegging free to air content to include a huge percentage of local content while the elites who can afford to pay TV channels will be enjoying robust menu from various channels and the internet. The media stakeholders have insisted that enforcing professional and ethical standards can only be done through the Media Council.