In Summary
  • If these two Bills are passed in the form in which they have been published, they will have great impact on the media landscape for journalists and for the country
  • A look at the two Bills reveals some concerns and possible doubts as to whether these principles have been considered adequately––or at all

There are two proposed legislation that would have profound effects on media work in the country.

These are the Media Council Bill, 2013 and the Kenya Information and Communications (Amendment) Bill, 2013. The latter will shortly go through its second reading in parliament.

If these Bills are passed in the form in which they have been published, they will have great impact on the media landscape for journalists and for the country.

The Bills are not a matter of happenstance. The need to pass media legislation is a command of the Constitution.

It is intended that the legislation regarding the media industry be amended to attune it to the changes that the new Constitution intended to introduce. The constitutional freedom of the media and the right to information were non-existent under the previous constitution.

Article 34 of the Constitution is clear that the State shall not control or interfere with any media establishment. The article adds that any regulatory body with authority over the broadcasting and electronic media shall be independent of control by government or any commercial or political interest.

Therefore, the litmus test of any media legislation must satisfy the two standards. These are first, that the media must be cushioned against state control and, second, that any regulatory body must also be independent. This is understood to mean freedom from oversight or supervision by any of the arms of government including but not limited to the agents or officers of the State.

A look at the two Bills reveals some concerns and possible doubts as to whether these principles have been considered adequately––or at all.

SUPERVISOR WITH BIG STICK

For instance, the Media Council Bill, 2013 is intended to regulate media establishments and journalists. However, this Bill would appear to reverse the balance of power in the media from regulation to control in favour of the Executive generally through the Cabinet secretary in charge of information and communication. The Cabinet secretary is given the power of life and death over the Media Council.

The Bill empowers the Cabinet secretary to effectively dissolve the current Media Council by declaring vacancies in the Council and convening a selection panel to choose candidates for appointment to the successor Media Council.

Second, the possibility of independence of this selection committee is remote because the Cabinet secretary is empowered to be the one to provide facilities and support for the panel in the discharge of its functions. The view is that this perpetuates the patronage of the panel to the Cabinet secretary.

After conducting interviews with the applicants, the panel submits 12 names to the Cabinet secretary. From these names, the secretary shall select six persons for appointment as members of the council. The panel shall also submit the names of a further three persons (3) to the Cabinet secretary from whom the President shall appoint the chairperson of the council.

POWERFUL CABINET SECRETARY

The Bill further gives the Cabinet secretary the unbridled power to reject any of the names of the nominees submitted by the panel and request alternative names. Theoretically, therefore, the Cabinet secretary shall retain the power to reject any nominees for membership of the Media Council until he is personally satisfied with the persons.

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