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Kenya: Controversial Legislation on the Media Under Consideration

(Dec. 6, 2013) Two controversial bills with similar provisions on the control of the media are at different stages in the legislative process in Kenya. The Kenya Information and Communications Amendment (KICA) has been passed by the legislature but not yet approved by the President. (Ally Jamah, Media Stakeholders in Kenya Seek Amendments to Proposed Law, STANDARD ONLINE (Nov. 22, 2013), World News Connection, online subscription database, Doc. No. 201311221477.1_dfcb002e308140ae; The Kenya Information and Communications (Amendment) Bill, 2013-July 11, Communications Commission of Kenya website.) The second bill, now under discussion, is the Media Council Bill. (Jamah, supra; Media Council Bill, KENYA GAZETTE SUPPLEMENT, No. 106 (July 22, 2013).)

The KICA amends the 1998 Kenya Information and Communications Act. Concerns have been raised about the amendment’s impact on media freedom. In particular, the Kenyan Commission for the Implementation of the Constitution (CIC) expressed the view that the KICA provisions are in part unconstitutional and will hurt press liberty. (Press Release, CIC Press Statement on the Kenya Information and Communications (Amendment) Bill (Nov. 7, 2013).) The CIC is “mandated to monitor, co-ordinate, facilitate and oversee the implementation of the Constitution of Kenya, 2010.” (Id.)

The CIC pointed out that article 34 of the Kenyan Constitution guarantees freedom of the press. (The Constitution of Kenya (2010), THE OFFICIAL LAW REPORTS OF THE REPUBLIC OF KENYA.) The Commission argued before the passage of the KICA that the bill’s seventh clause, because it establishes a Communications Authority of Kenya with some members appointed, vetted, and potentially removed by the government without outside input, violates the constitutional provision on freedom of establishment of the media. That provision states: “[b]roadcasting and other electronic media have freedom of establishment, subject only to licensing procedures that—(a) are necessary to regulate the airwaves and other forms of signal distribution; and (b) are independent of control by government, political interests or commercial interests.” (Id. art. 34(3); CIC Press Statement on the Kenya Information and Communications (Amendment) Bill, supra.)

The CIC also objected to clause 17 in the original bill, which established minimum standards for local content for radio and television broadcasts, as inconsistent with the Constitution. CIC stated, “in its current form, the Clause opens the non-compliance with local content requirements to penal consequences contrary to the provisions of Article 34(2).” (CIC Press Statement on the Kenya Information and Communications (Amendment) Bill, supra.) That constitutional article forbids attaching penalties for the content of broadcasts. (Constitution, art. 34(2).)

Some of the CIC concerns were echoed by Article 19, an international, nongovernmental organization devoted to freedom of expression and freedom of information, which stated that the proposed amendments “violate Kenya’s constitutional guarantees for media freedom and fly in the face of hard won liberty in the country.” The organization urged the President to reject the bill. (Kenya: President Must Reject the Information and Communications Bill (Nov. 1, 2013), Article 19 website; Who We Are, Article 19 website (last visited Nov. 27, 2013).)

There has also been opposition to the Media Council Bill. According to a November 22 report, representatives of owners of media businesses, as well as of editors and authors, have suggested a dozen changes that could be made in the bill, including making the Media Council, a body that apparently would have similar functions to that proposed under the KICA, independent of government influence. (Jamah, supra.) They propose that clauses that impinge on the future independence of the Media Council, such as the clauses that allow the Cabinet secretary to have a role in the selection of members of the Council, be removed. (Id.)