Position on New Broadcast Regulations

Press Release on the New Broadcast Regulations and Freedom of Expression

Over the last two years, the state machinery has been deployed numerous times to prevent lawful attempts at peaceful protests through public demonstrations by aggrieved citizens. The right to freedom of assembly is currently unconstitutionally and illegally constrained. Now, the right to freedom of expression is also under threat following the recent publication of the Kenya Communications (Broadcasting) Regulations, 2009.

 Coming when Kenya is on the brink of historic reforms, demanding ever more informed citizen participation, the regulations are a bad faith gesture. In addition, the recent relationship between the government and the media, does not create confidence in moves granting the government yet more discretion as concerns media regulation. The infamous raid on the Standard Group’s premises by an armed and masked gang, the destruction of its property as well as the confiscation of its equipment, the banning of live broadcasts following the General Elections of 2007 and the continued state harassment of the media and other would-be investigative whistle-blowers bear these concerns out.

The regulations reinstate earlier offensive clauses of the proposed Kenya Communications (Amendment) Act which seek to broaden the purview of the Communications Commission of Kenya (CCK) from regulation of access to and use of the frequency spectrum to regulation of broadcast content. Despite the evident failures of the Media Council of Kenya (MCK) with respect to the regulation of broadcast content, this broadened mandate of the CCK is not acceptable.

We do not deny that the media, particularly the broadcast media, have failed to address breaches of the MCK’s Code of Ethics. Defamatory language, inflammatory remarks and hate speech directed at different groups of Kenyans continue to be the hallmark of many media houses, particularly broadcast media houses. That said, universal best practice would imply enhanced self-regulation by a professional oversight body, in the form of a strengthened MCK. That is, an MCK that is insulated from both the government and the media’s ownership and that is known about and used by the general public as a complaints body. The regulations instead move these functions to the CCK, which is itself a state rather than independent regulator.

The regulations also enable the CCK to proscribe certain content on the basis of an unnecessarily wide and final discretion. Under the regulations, the CCK may deny or revoke licensing, a fact which may be employed to influence content in favour of government positions and against constructive criticism of the same.

In addition, Regulation 10 (2) (b) which empowers the CCK to require a licensee to provide a minimum number of channels, may distort existing business practice and lock out potential licensees. Under Regulation 26, broadcast media houses may be subjected to undue restrictions on sponsorship, in a manner that does not advance viewer or listener benefit.

The Kenya Human Rights Commission (KHRC) thus calls for the immediate degazettement and review of the regulations. In addition, there is need to amend the parent statute, the Kenya Information and Communications Act to ensure the functions of the CCK do not offend freedom of expression. We further demand that the draft Constitution be categorical in its protection of this fundamental freedom and in its guarantee of protection for investigative whistle-blowers. Lastly, the MCK should be strengthened to ensure ethical journalism.