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Kenya - Public Broadcasting In Africa (AfriMAP 2011)

Kenya - Public Broadcasting In Africa (AfriMAP 2011)

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Published by OSFJournalism
Kenya’s liberalisation of the airwaves since the mind-1990s has resulted in the transformation of broadcasting with numerous stations now serving as a platform for information and public debate. This has promoted a culture of participation in the democratic process, and has impacted positively toward good governance. However, the report, written by Grace Githaiga, does argue the need for media laws and regulations on the statute books to align with the country’s new constitution; top amongst which, is the urgent need for a new Kenya Broadcasting Corporation Act. The report provides evidence showing that KBC is both by law and practice, controlled by government, and is used largely to promote the interest of government alone. This, the report further states, goes against the Declaration of Principles of Freedom of Expression in Africa, which espouses for state broadcasters to be transformed into public broadcasters, independent of government and free from political and economic manipulation.
Kenya’s liberalisation of the airwaves since the mind-1990s has resulted in the transformation of broadcasting with numerous stations now serving as a platform for information and public debate. This has promoted a culture of participation in the democratic process, and has impacted positively toward good governance. However, the report, written by Grace Githaiga, does argue the need for media laws and regulations on the statute books to align with the country’s new constitution; top amongst which, is the urgent need for a new Kenya Broadcasting Corporation Act. The report provides evidence showing that KBC is both by law and practice, controlled by government, and is used largely to promote the interest of government alone. This, the report further states, goes against the Declaration of Principles of Freedom of Expression in Africa, which espouses for state broadcasters to be transformed into public broadcasters, independent of government and free from political and economic manipulation.

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Published by: OSFJournalism on Oct 30, 2012
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The Communications Commission of Kenya (CCK) was established in February
1999 by the Kenya Communications Act of 1998, and amended by the Kenya
Communications (Amendment) Act of 2008. Before this amendment, licences were
granted without a regulatory framework and thus haphazardly: ‘This was wrong
and explains why some people/organisations have broadcast licences but cannot be
allocated frequencies since the frequencies are simply not available. This is a weakness
in regulation.’83

At the end of 2010 the ministry of information and communications released an
Independent Communications Commission of Kenya Bill 2010, which is expected to
be fnalised by mid 2011.84

This bill seeks to reform the CCK in the spirit of the new

constitution, which says in its article 34(3):

Broadcasting 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.

Section 3(4) of the 2010 Bill would guarantee this independence as provided for in the
constitution:

83 Interview with permanent secretary in the ministry of information, Bitange Ndemo, in Nairobi on 21 February 2008.
84 Email communication to the Kictanet list, from the permanent secretary, ministry of information, 16 November 2010.

54

PUBLIC BROADCASTING IN AFRICA: KENYA

(4) The Commission is independent, and subject only to the Constitution and the

law, and must be impartial and must perform its functions without fear, favour

or prejudice.

(5) The Commission must function without any political or commercial interference.

This section is similar to section 5B of the Kenya Communications (Amendment) Act
of 2008 which says that ‘except as provided for under this Act or any other law, the
Commission shall exercise its functions independent of any person or body’. Section
5A of the Act, however, which is not set to be repealed by the Bill, gives the minister
for information and communications wide-ranging powers: ‘The Minister may issue
to the Commission policy guidelines of a general nature relating to the provisions
of this Act as may be appropriate.’ And section 46K allows the minister to ‘make
regulations generally in respect to all broadcasting services’ in consultation with the
CCK. The minister did so in 2009 when he issued very detailed regulations in regard
to licensing, programme content and programme codes (see below).
Under the Bill the functions of the CCK will remain unchanged as defned
in section 5(1) of the Act: ‘The object and purpose for which the Commission is
established shall be to licence and regulate postal, information and communication
services in accordance with the provisions of this Act.’
Section 46A describes the functions of the commission in relation to broadcasting
services in more detail:

(a) promote and facilitate the development, in keeping with the public interest, of

a diverse range of broadcasting services in Kenya;

(b) facilitate and encourage the development of Kenyan programmes;

(c) promote the observance at all times, of public interest obligations in all

broadcasting categories;

(d) promote diversity and plurality of views for a competitive marketplace of ideas;

(e) ensure the provision by broadcasters of appropriate internal mechanisms for

disposing of complaints in relation to broadcasting services;

(f) protect the right to privacy of all persons …

The Kenya Communications Act of 1998 as amended in 2008 prescribes the
composition of the board of directors in its section 6:

The management of the Commission shall vest in a Board of Directors of the

Commission which shall consist of—

BROADCASTING LEGISLATION AND REGULATION

55

(a) a chairman who shall be appointed by the President;

(b) the Director-General who shall be appointed by the Minister;

(c) the Permanent Secretary in the ministry for the time being responsible for

information and communications or his representative;

(d) the Permanent Secretary in the ministry for the time being responsible for

fnance or his representative;

(e) the Permanent Secretary in the ministry for the time being responsible for

internal security or his representative;

(f) at least seven other persons, not being public offcers, appointed by the

Minister and of whom–

at least one shall have knowledge or experience in matters relating to law;

at least one shall have knowledge or experience in postal services;

at least one shall have knowledge or experience in matters relating to

broadcasting;

at least one shall have knowledge or experience in matters relating to radio

communications;

at least one shall have knowledge or experience in matters relating to

information technology or computer science;

at least one shall have knowledge or experience in matters relating to

telecommunications; and

at least one shall have knowledge or experience in consumer protection

matters.

This section clearly does not comply with the new constitution. The Bill therefore aims
to change the composition of the board and the appointment procedure. According
to section 5 of the Bill, seven commissioners are to be appointed by the president
on the recommendation of the Public Service Commission. Seven days after the
commencement of the new act, the minister will call for applications ‘by any qualifed
person or person, organisation or group of persons proposing the nomination of any
qualifed person’. The Public Service Commission will then ‘consider the applications,
interview and shortlist at least two persons qualifed for the appointment as chairperson
and nine persons who qualify for appointment as members’. The president is to choose
the chairperson and the six members from this list and appoint them.
Section 5(3) of the Bill says:

Persons appointed to the Commission must be persons who—

(a) are committed to fairness, freedom of expression, openness and accountability

on the part of those entrusted with the governance of a public service; and

56

PUBLIC BROADCASTING IN AFRICA: KENYA

(b) when viewed collectively—

(i) are representative of a broad cross section of the population of the

Republic; and

(ii) possess suitable qualifcations, expertise and experience in the felds of,

amongst others, broadcasting, telecommunications , law, media, and

economics, or any other related expertise or qualifcations.

Section 6(1) disqualifes certain categories of persons from being appointed as
commissioners:

A person may not be appointed as a Commissioner if he or she—

(a) is not a citizen of the Republic;

(b) is a public servant or the holder of any other remunerated position under the

State;

(c) is a member of Parliament, any county legislature, local authority or any state

offcial;

(d) is an offce-bearer or employee of any party, movement or organization of a

party political nature;

(e) or his or her family member has a direct or indirect fnancial interest in the sector;

(f) or his or her business partner or associate holds an offce in or with, or is

employed by, any person or body, whether corporate or unincorporated, which

has an interest contemplated in paragraph (e); …

Clause VII of the African Commission on Human and Peoples’ Rights’ Declaration of
Principles on Freedom of Expression in Africa states:

1) Any public authority that exercises powers in the areas of broadcast or

telecommunications regulation should be independent and adequately

protected against interference, particularly of a political or economic nature.

2) The appointments process for members of a regulatory body should be open

and transparent, involve the participation of civil society, and shall not be

controlled by any particular political party.

3) Any public authority that exercises powers in the areas of broadcast or

telecommunications should be formally accountable to the public through a

multi-party body.

The Act as it stands now is far from complying with this Declaration. The new Bill,
however, also falls short of these requirements in a number of ways:

BROADCASTING LEGISLATION AND REGULATION

57

• According to article 233(2) of the constitution the Public Service Commission

is appointed by the president with the approval of the National Assembly. If
the president’s choice is approved by the majority of the ruling party only,
the appointments procedure for the CCK will be indirectly controlled by a
political party.

• Although persons or organisations will be invited to nominate candidates –

which means that civil society has a chance to make an input – the procedure
is not open and transparent, given that the Public Service Commission is
not required to publish the list of nominations and to interview candidates
in public.

• The president has the power of fnally selecting the commissioners without

any requirement for transparency.

• The Bill in its list of disqualifcations for appointment attempts to ensure

that the CCK is protected against interference, particularly of a political or
economic nature. The exclusion of the entire public service, however, seems
overzealous and questionable in light of the provision in the constitution
that the commission should be ‘representative of a broad cross section of
the population of the Republic’ – under the presently envisaged provisions
teachers or academics, for example, would have no chance to serve on the
CCK.

• The CCK would be accountable to the Minister (section 16) and not directly

to Parliament.

The 2008 Act in its section 84J provides for a Universal Service Fund ‘to support
widespread access to, support capacity building and promote innovation in information
and communications technology services’. According to section 84K the fund is to be
fnanced mainly from levies paid by licensees and ‘monies as may be provided by
Parliament for that purpose’.

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