By David Ochami and James Ratemo in Nairobi
Journalists and rights activists have criticized the Media Bill saying it will impede a free media and entrench judicial control of the press if adopted as law.
Commentators and journalists attending an appraisal workshop organized by the Kenya National Commission on Human Rights KNHCR said yesterday that although the bill contains good aspects it also has dangerous provisions that militate against the principle of self-regulation in the media and may even be unconstitutional.
Among other provisions the Bill proposes a new method of appointing seven commissioners to the Media Council of Kenya MCK through the Judicial Service Commission JSC.
Currently several bodies nominate representatives to the Council for formal appointment by the Director of Information who also sits in the MCK.
Under the proposed law the seven are chosen by the JSC from several bodies including the Kenya Union of Journalists, KUJ, Media Owners Association, State Law Office and Justice ministry. Each must hold a basic degree and is formally appointed by the Chief Justice CJ.
According to Victor Bwire of Article 19 the Bill that seeks to amend the current Media Act is generally progressive but also constitutes a “silent onslaught on the media.”
Bwire added that the greatest threat to the Bill lies in competitive/other legislation like the penal code and National Cohesion and Integration Commission NCIC Act that weaken the effectiveness of the proposed Media Act and Media Council of Kenya MCK.
He said the NCIC Act eats into the domain of the Media Act and actually criminalizes press freedom in the guise of outlawing hate speech.
Bwire also said the bill does not, adequately cover internet/ new social media but also, progressively defines who a journalist is.
In an earlier email interview with The Standard, Ministry of Communication and Information, Dr Bitange Ndemo however said the bill is still at the formative stage and the ministry is keen to ensure emerging issues are ironed out.
“We have not gone far enough. We will create a task force consisting of MOA, Editors Guild, KUJ, Article 19, ICJ, LSK and Media Council to come up with a consensus that reflects the spirit of the constitution then move it forward to Cabinet, Law Reform, CIC, AG’s office and Parliament. We are still far away,” said Ndemo.
Ndemo said the main contentious issue is in defining a Media stakeholder.
“This of course is very difficult because stakeholder is not defined in any statute. If we do not agree on this then we shall have a lot of problems going forward because there are conflicting interpretations of the constitution by different stakeholders, argued Ndemo.
“Specifically, we are getting different views of the limitation of rights. Section 34, subsection 5 (a) clearly states Parliament shall enact legislation that provides for establishment of a body, which shall: be independent of control by government, political interests or commercial interests. †This therefore makes it very difficult
for the Government and Media Owners Association to exert any authority over the council,” explained Ndemo.
Other journalists said that subjecting control of the MCK to the JSC means the Council will become an appendage of the judiciary while some proposed that the MCK should be dominated by active professional journalists.
Ndemo said a broad stakeholder engagement to clearly articulate some of the provisions in the constitution is required to resolve the looming impasse.
Agreeing on the need to iron out the emerging issues, Kenya Editors Guild Secretary, Rosemary Orlale says the bill seeks to allow Government greater role in controlling the media, which is unacceptable.
According to Grace Githaiga, a media consultant who previously worked for EcoNews Africa, stakeholders are yet to see the policy that informed the Media Bill 2010.
“There was talk that there was one in 2007. However, a bill such as this one cannot be amended without amending the policy. This policy is not even available on the website of the Ministry of Information and communication,” said Githaiga.
Githaiga said the purpose of the Bill must be anchored in article 34 of the Constitution by stating that “the Act is to provide for the freedom of information and media as provided for in article 34 of Kenya’s constitution and that it (Media Act 2010) is to amend the Media Act 2007.
Suzanne Chivusia of the KNHCR said the proposed law allows the CJ sweeping powers to constitute the MCK and proposed these appointments ought to be shared with the JSC, Public Service Commission and other bodies.
“There needs to be clarification on what constitutes a publication,” according to the KNHCR who argued the wide definition provided in the Bill could include newspapers and magazines published abroad and textbooks.
She said the bill does not provide penalties for journalists who receive or give bribes in its Second Schedule.
KUJ Secretary General, Jared Obuya, said the new Constitution assures that, “the state shall not†exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium”.
Obuya says by enacting the Media Bill 2010, the government will have effectively reversed this fundamental gain in the new Constitution.
“The bill, proposed by the Ministry of Information and Communication, does away with the principle of self-regulation and places media regulation under another arm of the government, the Judiciary,” he said.
“The new bill – while borrowing heavily from the Media Act 2007proposes changes to the media act, expected to go to Parliament any time soon, give sweeping powers to the Chief Justice to appoint members of the statutory Media Council and indirectly superintend its operations,” Obuya argues.
According to Obuya, the government’s claim of seeking to enhance the Council’s independence rings hollow in light of the excessive powers over the Council proposed for the Chief Justice and the Judicial Service Commission, and suppression of the profession’s voices currently in the Council…the envisaged Media Council would in fact be another unnecessary appendage of the Judiciary,” Obuya said.
See original story in the Standard Online