The Media Bill Must Be Discussed

Soon Parliament in Kenya will have to accept or reject the Media Bill which the Minister for Information and Communications, Mutahi Kagwe, has tabled and seen it through the First Reading. When it reaches the Second Reading it will be the cause of what promises to be a very heated debate among parliamentarians before they reject or accept it as the law regulating the media in Kenya. So far the public debate about the Bill shows that very many people oppose it though the debate itself has been extremely biased for a number of reasons.

To begin with the debate has been conducted mainly in the print media where editors determine what will be printed. Secondly the print media are all controlled by the media owners who would like the Bill killed and have publicly said as much. Thirdly media owners today control the Media Council which they claim should not be statutory as the Bill suggests. Fourthly media owners oppose professionalization of journalism which the Bill indirectly backs.

Kenyans, therefore, have never been given an opportunity to examine the Bill objectively and they are not in a position to know whether Kagwe’s intentions are to muzzle or protect the media. The only solution is to examine the Bill thoroughly before either accepting or damning it. The Bill’s Memorandum of Objects and Reasons claims its principle object is to provide for the establishment of the Media Council of Kenya and the Media Advisory Board, bodies which “will regulate the practice of journalism in Kenya.”

The Bill, according to the memorandum, seeks to create the framework that will allow journalists and other media practitioners “to exercise their freedom freely and responsibly in a sound and professional manner and also seek to promote self regulation and accountability in the media industry”. It is without a doubt that the mass media in Kenya today enjoy one of the freest environments on the continent of Africa ; but everyone also agrees that professional standards of journalism could do with some improvement. Whether that improvement could come about through the law regulating the media or be left to independent self regulation should be the focus of the debate on Mutahi’s Bill.

The arguments currently advanced by those who oppose the Bill warn that a statutory Media Council could only be controlled by the Government and could not possible be self regulating. This tough stand is not supported by the Bill which clearly says in Section 3 (2) that the Council will be a body corporate which will promote and protect freedom and independence of the media. If he Bill is passed that obviously will be the law. There is nowhere in the Bill that says the Council will be part of the Government and, as a matter of fact, Section 5 (h) says one of its functions will be to advise on various regulatory authority on matters pertaining to professional education and training of journalists and other media practitioners .

Today there are all sorts of bogus training institutions all over the country purporting to be training journalists yet the current Media Council, of which I happen to be a member, can do absolutely nothing about it. The only way the mushrooming schools of journalism could be controlled is to make the Media Council stronger with enough powers to close down sub-standard so called schools. The power and strength of the Media Council could only come about by making it a statutory body.

Section 5 (i) of the Bill empowers the Council to make recommendations on employment criteria for journalists. All properly trained journalists in Kenya have been crying for that because proprietors who as I said earlier own the Media Council, have not only been exploiting journalists unfairly but have also been employing really unqualified people who have been responsible for the bad name journalism has in Kenya as far as professionalism is concerned. On matters of ethics the draft Bill suggests that one of the functions of the Council shall be to uphold and maintain ethics and discipline of media practitioners.

The Bill provides on the Third Schedule the Code of Conduct for the Practice of Journalism which includes Accuracy and Fairness, Independence, Integrity, Accountability, Opportunity to Reply, Unnamed Sources, Confidentiality, Misrepresentations, Obscenity, Taste and Tone in Reporting, Paying for News and Articles, Covering Ethnic, Religious and Sectarian Conflict, Recording Interviews and Telephone Conversations, Intrusion into Grief and Shock, Sex Discrimination and Financial Journalism.

With very few exceptions these are the same principles of the current code and conduct and practice in Kenya as agreed upon in April 2001 by eight members of the Media Industry Steering Committee which is made up of the Kenya Union of Journalists, Media Owners’ Association, Editors’ Guild of Kenya, the Alternative Press, Media NGOs and State Media. With the exception of the Alternative Press, Media NGOs and State Media all the rest will be represented in the suggested Council. There are probably very good reasons to exclude the three from the new Council and among them is the fact that the owners, practitioners and editors of both the alternative media and state media could belong to other institutions which will compose the statutory body. Media NGOs are really not practicing journalists and if they have the evidence that they are then they should either belong to the union of media owners’ association.

Questions have been asked as to why COTU, religious organizations, Association of Professional Societies in E.A, United Disabled Persons of Kenya, Kenya National Chambers of Commerce and Industry and Kenya Private Sector Alliance should belong to the Media Council. I believe the membership of these institutions should be reviewed though they happen to be the ones that have always complained of mistreatment by the media. Also to be reviewed should be Section 7 (2) (b) of the Draft which disqualifies any person who is directly or indirectly an owner, shareholder, director or partner of media establishment in Kenya. With this part of the Draft unchanged it would be difficult for members of Media Owners’ Association to be represented in the Council.

The one part of the Bill which will be willingly accepted by most Kenyans in Section 6 which deals with operations of the Council. This part of the Draft suggests that the Council shall operate without any political or other bias or interference and shall be wholly independent and separate from the government, any political party or any nominating authority. This will be the law and the government will be breaking the law if it interferes with the operations of the Council.

The controversial part of the Bill deals with the establishment of the Media Advisory Board whose principle function is to advise the Council generally on the exercise of its powers and the performance of its functions. As a non corporate it looks like the Board is likely to be used by the Government to influence the Media Council. If the Board will be part of the Government how can it be expected to “advise” the Council when Section 5 (h) says it is indeed the Council which will have the role of advising the Government? So who will be expected to advise whom? That deliberate confusion should be disentangled during the Second Reading and may be even the Third Reading if the Bill reaches that stage.

Though Section 22 of the Bill categorically says the Board shall, in performance of its functions, not be subjected to direction or control of any person or authority it says that it shall include the Permanent Secretary in the Ministry of Information and Communications who is likely to be its most powerful individual in it. The fact that the money to run both the Board and the Council will be appropriated by Parliament proves that both institutions will be public and could easily be influenced by the powers that be.

The most positive yet controversial aspect of the Bill is to be found in Part V Section 29-37 which deals with provisions on making complaints and resolutions of disputes that arise. One of the weakest aspects of the present Media Council is the manner in which it deals with complaints and dispute resolution. Its ineffectiveness has led it to be described as “toothless”. So the establishment of a statutory Media Council will, without a doubt, give the Council some teeth which unfortunately could also be used to bite journalists. Section 33 9(d) for example gives the Council powers to deregister a journalist and withdraw his or her accreditation for a specified period. This section is probably going against Section 79 of the Constitution of Kenya which protects freedom of expression.

The powers of the Council’s Complaints Committee to be found in Section 33 (b) will
not go down very well with editors as it gives the Council authority to order an offending party to publish an apology and correction in a manner as the Council may specify. This is despite the fact that Section 38 (3) says the Council shall not seek to control or direct journalists in the execution of their professional duties. Is correcting an error not part of those duties? Rather than throwing the Bill in the dustbin, however, I believe it should be discussed objectively and be reshaped in such a manner as to be acceptable to both sides . The Bill could be saved and serve a useful purpose in protecting freedom of expression in Kenya.