Public broAdcAsting in AfricA series

Kenya
A survey by the Africa Governance Monitoring and Advocacy Project (AfriMAP) Open Society Initiative for Eastern Africa (OSIEA) Open Society Media Program (OSMP)

Open Society Foundations 2011 This publication is available as a pdf on the Open Society Foundations website or the AfriMAP website under a Creative Commons licence that allows copying and distributing the publication, only in its entirety, as long as it is attributed to the Open Society Foundations and used for noncommercial educational or public policy purposes. Photographs may not be used separately from the publication. Written by: Grace Githaiga (researcher), Jeanette Minnie and Hendrik Bussiek (editors) Published by: Open Society Initiative for Eastern Africa ISBN: 978-1-920489-20-5 For more information contact: AfriMAP PO Box 678 Wits, 2050 Johannesburg South Africa www.afrimap.org OSIEA PO box 2193 Nairobi, 00202 Kenya www.osiea.org Design and lay-out by COMPRESS.dsl | www.compressdsl.com

Contents
Acronyms Foreword Introduction v vii ix

1

Country Facts
1 2 3 4 5 6 Historical background Government and political structures Basic socio-economic data Main challenges Media and communication landscape Brief history of broadcasting

1
1 3 5 6 7 11

2

Media Legislation and Regulation
1 2 3 4 5 International, continental and regional standards The Constitution of Kenya General media laws and regulations Other laws with an impact on media and freedom of expression Conclusions and recommendations

13
13 18 21 27 29

3

The Broadcasting Landscape
1 2 3 4 5 6 The Kenya Broadcasting Corporation Commercial broadcasters Community and other forms of broadcasting Technical standard and accessibility of services Concentration of media ownership Conclusions and recommendations

32
32 33 38 41 42 44

4

Digitalisation and its Impact
1 2 3 4 Preparedness for switch-over within government and the industry Preparedness for switch-over on the part of consumers Increased competition Conclusions and recommendations

46
47 48 50 51

iv

P U B L I C BROADCASTING IN AFRICA: KENYA

5

Broadcasting Legislation and Regulation
1 2 3 4 The Communications Commission of Kenya Licensing of broadcasters and enforcement of licence conditions Complaints and conflict resolution Conclusions and recommendations

53
53 57 65 65

6

The Kenya Broadcasting Corporation: Overview
1 2 3 4 Legislation Profile of the KBC Organisational structures and staff Conclusions and recommendations

69
69 72 75 78

7

Funding of the Kenya Broadcasting Corporation
1 2 3 Main sources of funding Spending Conclusions and recommendations

81
81 84 84

8

Programming
1 2 3 4 5 6 Programme policies and guidelines Programme schedules News and current affairs Comparison of state and commercial broadcasters Feedback and complaints procedures Conclusions and recommendations

87
87 91 97 101 105 105

9

Broadcasting Reform Efforts
1 2 3 Perceptions of the KBC Current reform efforts Conclusions and recommendations

108
108 111 112

10

Overall Conclusions and Recommendations

114

PUBLIC BROADCASTING IN AFRICA: KENYA

v

Acronyms
ACHPR AKFED AMB AU BBC CCK CNN DP DSTV EAC EATV ECK EU FKE FORD GDP ICCK ICCPR IPPG ITU KANU KBC KES KICT KNA KTN MCK MOA NARC NMG NOFBI NTV OAU ODM PNU RMS African Commission on Human and Peoples’ Rights Aga Khan Foundation for Economic Development African Media Barometer African Union British Broadcasting Corporation Communications Commission of Kenya Cable News Network Democratic Party of Kenya Digital Satellite Television East African Community East African Television Electoral Commission of Kenya European Union Federation of Kenya Employers Forum for the Restoration of Democracy gross domestic product Independent Communications Commission of Kenya International Covenant on Civil and Political Rights Inter Parties Parliamentary Group International Telecommunications Union Kenyan African National Union Kenya Broadcasting Corporation Kenya Shilling Kenya Information Communication Technology Kenya News Agency Kenya Television Network Media Council of Kenya Media Owners Association National Rainbow Coalition Nation Media Group National Optic Fibre Backbone Infrastructure Nation TV Organisation of African Unity Orange Democratic Movement Party of National Unity Royal Media Services

vi

P U B L I C BROADCASTING IN AFRICA: KENYA

SLG STBs UN UNDP UNESCO VoK

Standard Group Limited set-top boxes United Nations United Nations Development Programme United Nations Educational, Scientific and Cultural Organisation Voice of Kenya

Foreword

The report is the result of research that started in 2008 with the aim of collecting, collating and writing up information about regulation, ownership, access, performance as well as prospects for public broadcasting reform in Africa. The Kenya report is part of an eleven-country survey of African broadcast media. The main reason for conducting the research is to contribute to Africa’s democratic consolidation. Many African countries have made significant gains in building democratic systems of governance that are based on popular control of decision-making and in which citizens are treated as equals. Availability and access to information by a greater number of citizens is a critical part of a functioning democracy and a country’s development. The role of a public broadcaster as a vehicle through which objective information and diverse perspectives are transmitted into the public domain cannot be overstated. A number of countries are currently undertaking public broadcasting reforms that aim to improve service delivery and accountability to citizens. Such reforms draw from evolving African and global standards regarding media and broadcast media in particular. The survey instrument that was developed in consultation with media experts from Africa and other parts of the world is largely based on agreements, conventions, charters and declarations regarding media that have been developed at regional and continental levels in Africa. The survey of broadcast media in Africa was initiated by two projects of the Open Society Institute (OSI), the Africa Governance Monitoring and Advocacy Project (AfriMAP) and the Open Society Media Program, working with the African members of the Soros foundation network – in East Africa, the Open Society Initiative for East Africa (OSIEA). The research was carried out by Grace Githaiga, a media researcher with special interest in broadcasting and ICT, based in Nairobi/Kenya. The report was co-edited by Jeanette Minnie, an international freedom of expression and media consultant, and Hendrik Bussiek, a media consultant with extensive broadcasting experience in Africa and globally, who is the editor-in-chief of the project.

viii

P U B L I C BROADCASTING IN AFRICA: KENYA

It is our hope that the research will clear some of the misconceptions about public broadcasters. In its simplest definition a ‘public broadcasting service’ is a broadcaster that serves the public as a whole and is accountable to the public as a whole. Yet in most instances what is referred to as a public broadcaster is in fact a state broadcaster. This research aims to help the process of aiding the transformation of Africa’s public broadcasters into media worthy of the name. Ozias Tungwarara Director, AfriMAP

Introduction

The survey on public broadcasting in Africa starts from the premise that development and democracy cannot thrive without open and free public space where all issues concerning people’s lives can be aired and debated and which gives them room and opportunity to participate in decision-making. Nobel Prize laureate Amartya Sen describes democracy as ‘governance by dialogue’ and broadcasters are ideally placed to facilitate this dialogue by providing the space for it – if their services are accessible, independent, credible and open to the full spectrum of diverse views. Following from this premise, the key objective of the survey is to assess whether and to what extent the various forms of broadcasting on our continent can and do create such a free public space, with special attention given to those services which call themselves ‘public’. A total of eleven country reports look closely at the current status of broadcasting in Benin, Cameroon, Kenya, Mali, Mozambique, Namibia, Nigeria, South Africa, Uganda, Zambia, and Zimbabwe. While this survey may be unprecedented in its scope and depth, it does feed into ongoing discussions among broadcasters, civil society and politicians in Africa on the nature and mandate of genuine public broadcasting. Reform efforts are under way in a number of countries. And at least on paper there is already broad consensus on the need to open up the airwaves to commercial and community broadcasters and for state broadcasters to be transformed into truly public broadcasting services. The Declaration of Principles on Freedom of Expression in Africa adopted by the African Union’s Commission on Human and Peoples’ Rights in 2002, for example, says ‘a State monopoly over broadcasting is not compatible with the right to freedom of expression’ and demands that ‘state and government controlled broadcasters should be transformed into public service broadcasters accountable to the public’. This document and other regional policy declarations serve as major benchmarks for this survey. In particular, these African documents inform the vision and mandate of public

x

P U B L I C BROADCASTING IN AFRICA: KENYA

broadcasting as understood in this study.1 This vision can be summarised as follows: • to serve the overall public interest and be accountable to all strata of society as represented by an independent board; • to ensure full respect for freedom of expression, promote the free flow of information and ideas, assist people to make informed decisions and facilitate and strengthen democracy. The public broadcasters’ mandate is • to provide access to a wide range of information and ideas from the various sectors of society; • to report on news and current affairs in a way which is not influenced by political, commercial or other special interests and therefore comprehensive, fair and balanced (editorial independence); • to contribute to economic, social and cultural development in Africa by providing a credible forum for democratic debate on how to meet common challenges; • to hold those in power in every sector of society accountable; • to empower and inspire citizens, especially the poor and marginalised, in their quest to improve the quality of their lives; • to provide credible and varied programming for all interests, those of the general public as well as minority audiences, irrespective of religious beliefs, political persuasion, culture, race and gender; • to reflect, as comprehensively as possible, the range of opinions on matters of public interest and of social, political, philosophical, religious, scientific and artistic trends; • to promote the principles of free speech and expression as well as of free access to communication by enabling all citizens, regardless of their social status, to communicate freely on the airwaves; • to promote and develop local content, for example through adherence to minimum quotas; • to provide universal access to their services, with their signal seeking to reach all corners of the country.

1

Apart from the African Commission’s Declaration of Principles on Freedom of Expression, these are the African Charter on Broadcasting 2001 as well as the 1995 policy document ‘On The Move’ and 2007 draft policy paper ‘Now is the Time’ by the Southern African Broadcasting Association, in which state/public broadcasters in southern Africa commit themselves to the aim of public broadcasting.

INTRODUCTION

xi

Other broadcasting services can – in one way or the other – also fulfill aspects of this mandate, and the survey, therefore, looks at them as well in order to assess their contribution to the creation of a public space. The facts, figures and informed assessments presented in the survey will, it is hoped, provide a nuanced picture of where broadcasting in Africa at present stands between ‘His Master’s Voice’ of old and the envisaged public broadcasting service of the future. This information should provide a sound basis for advocacy work, both among decision-makers and civil society as a whole. The report starts out with a comprehensive audit of existing media laws and other legislation with an impact on freedom of expression and a critical in-depth assessment of the legal and regulatory framework in which broadcasting presently operates. This is followed by a detailed study of the state broadcaster – its organisation, its finances, its policies, the content it offers. In April 2011 a draft report was publicly presented at a round table meeting in Kenya’s capital Nairobi, attended by participants from public and private broadcasting stations, media associations and other civil society organisations. Participants discussed the findings, corrected assumptions and errors, debated and endorsed conclusions and recommendations and made a number of additions which were incorporated into the final version. The researcher and editors would like to express their gratitude to all those who contributed by sharing their information and insights and providing valuable feedback and constructive criticism. Hendrik Bussiek

1
Country Facts

1

Historical background

Kenya formally became an independent republic on 12 December 1963, with the end of British colonial rule. The first president was Jomo Kenyatta and the ruling party, the Kenyan African National Union (KANU), dominated the politics of the country up to 2002. KANU managed to stay in power through a number of strategies. Under Kenyatta opposition parties were either absorbed or banned and the voices of political and civil opposition effectively silenced through the detention and imprisonment of dissidents. After Kenyatta’s death in 1978, Daniel Toroitich Arap Moi took over as president. Four years later parliament declared Kenya a one-party state. Following a period of protests and repression as well as pressure from the international community, Moi announced in December 1991 that the country was ready for a multi-party system and KANU changed the constitution accordingly. Opposition groups formed an alliance, the Forum for the Restoration of Democracy (FORD), with veteran politician Oginga Odinga as chairman. Mwai Kibaki, a former vice-president, established the Democratic Party of Kenya (DP). However, the opposition soon became fragmented and KANU won the December 1992 general and presidential elections. The party had the necessary resources and the infrastructure and was thus able to repeat its success in the subsequent election in 1997, though with a considerably reduced majority in Parliament. Before the 2002 general elections the opposition managed to forge an unprecedented alliance. The major stumbling block among the various opposition parties such as FORD-Kenya, FORD-People, the Democratic Party, Safina, the Social Democratic Party and others had been that they could never agree to field one presidential candidate to oppose the incumbent Daniel Arap Moi. Now these parties formed the National

2

P U B L I C BROADCASTING IN AFRICA: KENYA

Rainbow Coalition (NARC), ‘a coalition of genuine reformers and opportunists’,2 as Andrew Harding, the British Broadcasting Corporation (BBC) correspondent covering the elections, put it. NARC won 125 out of the possible 210 parliamentary seats, and KANU came a distant second with 64 seats. Together with another seven out of the additional 12 seats decided by the system of proportional representation, NARC achieved a clear majority that entitled it to form the government. Presidential candidate Mwai Kibaki himself won a comfortable 62.2 per cent of the vote (3 646 713) compared to Uhuru Kenyatta’s (the son of Jomo Kenyatta) 31.3 per cent (1 834 468).3 The entire election was given a clean bill of health by international observers and the Electoral Commission of Kenya (ECK). A process of reviewing the Kenyan constitution had started before the elections and one of the recommendations was that a future president would have his/her powers reduced to largely ceremonial responsibilities to avoid the danger of again installing all powerful autocrats. Instead a prime minister would run the actual affairs of government, overseen by Parliament. The opposition parties in NARC had negotiated their alliance with the spirit of the envisaged new constitution in mind. However, this new constitution was not finalised or adopted during their term in office and the following elections in December 2007 were conducted under the unchanged constitution, with NARC fragmented and new formations vying for the vote. Raila Odinga (the son of Oginga Odinga) launched the Orange Democratic Movement (ODM) and President Mwai Kibaki the Party of National Unity (PNU). Both party leaders ran for the office of president. At the end of January 2008 the ECK declared Kibaki the winner of the presidential election with 47 per cent of the votes against Odinga’s 44 per cent.4 Odinga disputed the results and independent exit polls indicated that he had indeed achieved 46 per cent with Kibaki coming in at 40 per cent.5 In the parliamentary elections Odinga’s ODM won 99 seats, leaving Kibaki’s PNU with 43 seats far behind; the rest of the 210 elected seats are shared by smaller parties. The stalemate led to unprecedented post-election violence in which nearly 1 200 people were killed and more than 300 000 displaced. Significantly, some of the violence happened along ethnic lines, with the Kikuyu – the community of which Kibaki is a member – pitted against groups supportive of Odinga, primarily Luo and Kalenjin.
2 3 4 5 Quoted from: Muhammad Bakari, ‘Kenyan Elections 2002: the End of Machiavellian Politics?’ in Alternatives, Turkish Journal of International Relations Vol. 1, Number 4, 2002. Ibid. http://www.communication.go.ke/elections/default.asp. International Republican Institute (IRI) Strategic Public Relations and Research, ‘Kenya election day poll’, www.iri. org, 27 December 2007.

COUNTRY FACTS

3

It was left to regional and international mediation, including that of former United Nations (UN) General Secretary Kofi Annan as chief mediator, to bring about a powersharing settlement and the formation of a government of national unity with Kibaki as president and Odinga as prime minister.

2

Government and political structures

The Republic of Kenya is a multi-party democracy. The three arms of government are the executive, the legislature and the judiciary. According to the National Accord and Reconciliation Act 2008, which forms the legal basis for the present government of national unity, the executive is headed by the president who is the head of state and commander in chief of the armed forces, the prime minister who is the head of government, a vice-president and two deputy prime ministers. This Act was supposed to cease to apply either upon dissolution of the current Parliament or of the coalition, or once a new constitution is enacted, whichever came earlier. The new constitution was promulgated on 27 August 2010 after a referendum, but it provides for a transitional arrangement that keeps the National Assembly as well as the president and prime minister in office until the next elections in 2012. Legislative power is vested in the National Assembly which consists of 224 members. Of these, 210 are elected members representing 210 geographical constituencies, and 12 members are nominated by political parties on a proportional representation basis. There are also two ex-officio members: the attorney-general and the speaker, who is elected by the Assembly. Parliament enacts legislation that governs the country. All bills passed by the National Assembly are presented to the president for his assent and have to be published in the Kenya Gazette before they become law. The new constitution establishes 47 counties, each with its own government in charge of agriculture, health services, public amenities, county trade development as well as county planning and development, among others. In line with this new tier of government, the new basic law provides for a two-chamber parliament with a National Assembly and a Senate. The National Assembly enacts legislation, determines the national expenditure and revenue, and reviews the conduct of the president and his/ her deputy and other state officers. The Senate serves the interests of the counties by debating and approving bills concerning the counties and determining the allocation of national revenue among counties. The new National Assembly will have 350 members: 290 elected in constituencies, 47 women elected in the counties, 12 members nominated on a proportional basis, and

4

P U B L I C BROADCASTING IN AFRICA: KENYA

the speaker as ex officio member. The Senate will have 68 members: 47 directly elected in the counties, 16 women nominated by political parties according to their share of seats in the Senate, two members each representing the youth and persons with disabilities respectively (appointed according to the proportional strength of political parties), and the speaker as ex officio member. The county assemblies are made up of members elected from different wards in the counties. The new basic law provides for an Independent Electoral and Boundaries Commission which sets the boundaries of constituencies and conducts or supervises referenda and elections to any elective body or office established by the constitution. The Commission is elected by the National Assembly and appointed by the president. The new basic law brings back a purely presidential system, with the president being both head of state and head of government, directly elected by registered voters. S/he will have the power to appoint (with parliamentary approval) ministers (called ‘cabinet secretaries’) and other key office bearers such as the attorney-general (who is also a member of the cabinet). The judiciary presently consists of magistrates’ courts, the High Court – which is the superior court of record and has unlimited original jurisdiction in civil and criminal matters – and a Court of Appeal. All judges are appointed by the president. In future, there will be the Supreme Court hearing appeals from the other courts at the apex of the judicial system, followed by the Court of Appeal to deal with appeals from the High Court, the High Court, as well as a labour and an environment/land court. All judges will be appointed by the president on the recommendation of a Judicial Service Commission (which is mainly elected by judges themselves), with the appointment of the chief justice and his/her deputy to be approved by the National Assembly. Among the lower courts are the martial and kadhis’ (sharia) courts with the latter applying Islamic law to Muslim citizens in matters regarding personal status, marriage, divorce or inheritance. It remains to be seen how the new structure of governance under the new constitution will play out in practice, in particular with regard to the re-introduction of a presidential system with a powerful head of both state and government at the helm. Much will depend on the strength of political parties and an active civil society. There are many organisations registered as political parties in the country. Muthoni Wanyeki, the executive director of the Kenya Human Rights Commission, points out that these parties lack membership structures, policy-based platforms and governing codes of conduct:

COUNTRY FACTS

5

Some of them mobilise on the basis of bribery and ethnic sentiments. On closer scrutiny of the stronger parties, one finds that they are actually a few feudal families who circulate among themselves and it is very difficult for ordinary Kenyans to break in without patronage. These major parties are the main culprits as the leaders have in instances made decisions on party nominees for various electoral positions.6

Similar sentiments are echoed by Atieno Ndomo, a political analyst, who says that ‘the electorate has very little say as was seen during the last election’s party nominations where party favourites who were defeated during the nomination exercise were rigged in by the party headquarters officials. The Orange Democratic Party was such a culprit.’7

3

Basic socio-economic data

Kenya has a population of 39.7 million people.8 It is a multi-lingual and multi-ethnic country which consists of over 42 diverse ethnic groups. These can be broadly divided into three main ethno-linguistic groupings: Bantu, Nilotic and Cushites.9 In all, these groups speak 70 different dialects, and they have their own territories, traditions and history. Generally, the name of each language also denotes the culture of its native speakers. Thus, Dholuo for example, refers not only to the language but also to the specific culture of the Luo people. There are also other non-African groups such as Kenyan Europeans, Kenyan Americans, Kenyans of Asian origin and Kenyan Arabs. English and Kiswahili are the official languages, with Kiswahili being the national language. The new constitution provides that the state shall ‘promote and protect the diversity of language[s] of the people of Kenya’ and ‘promote Kenyan sign language, Braille and other communication formats and technologies accessible to persons with disabilities’.10 Kenya is a multi-religious state. Freedom of conscience and worship are enshrined in the constitution. The overwhelming majority of Kenyans – more than 80 per cent – belong to Christian churches (Catholic, Protestant and Pentecostal), followed by Muslims (11 per cent), and traditionalists or naturalists. Other faith communities are Hindus, Buddhists and Bahais.11 The education sector has recorded increased enrolment following the introduction
6 7 8 9 10 11 Interview with Muthoni Wanyeki, Nairobi, 28 January 2008. Interview with Atieno Ndomo, Nairobi, 29 January 2008. http://www.wolframalpha.com/entities/countries/kenya/4v/ln/iu/. Report on Culture, Special Working Document for the National Constitutional Conference, August 2003. The Constitution of Kenya, 2010, article 7(b). The Main Report of the Constitution of Kenya Review Commission, September 2002.

6

P U B L I C BROADCASTING IN AFRICA: KENYA

of free primary education (the first eight years of school) by the NARC government in 2003. The average number of years of schooling now stands at 9.6.12 From January 2008, the government began offering a programme of free secondary education. The adult literacy rate is 74 per cent.13 Kenya’s economy is market-based. The estimated gross domestic product (GDP) per capita for 2008 stood at US$ 1 622.14 The key sectors of the economy are agriculture, tourism, manufacturing, hotels and restaurants, transport and communication, wholesale and retail trade, building and construction, and financial intermediation. Though the country was built on agriculture, the tourism industry has now developed into an almost equally big player. Between 1 and 2 million foreign tourists visit the country each year, bringing in between US$ 800 million and 1 billion annually.15 Kenya is the biggest exporter of tea in the world. With roughly US$ 1 billion in revenues (in 2007), tea accounts for two-thirds of agricultural exports. Flowers have been a major growth area over recent years. In 2007, Kenya exported 90 000 tons of flowers for a total of US$ 700 million. Kenya also ranks number 17 on the international list of biggest coffee exporters.16 The economy has expanded by 5.4 per cent in the second quarter of 2010, due mainly to the performance of the agriculture, manufacturing and financial sectors.17 A report by the World Bank18 points out that information communication technology (ICT) has been a main driver of Kenya’s economic growth over the last decade. Since 2000, the sector has outperformed all other segments of the economy, boosting the country’s average growth over the period from 2.8 per cent (excluding ICT) to 3.7 per cent.

4 Main challenges
4.1 Post-conflict management
Kenya is still suffering from the consequences of the post-election violence of 2008 and little has been done to address the underlying causes. Not all people who were displaced have been resettled. The polarisation along tribal lines needs to be eased through promoting national cohesion and peace-building among the different ethnic groups.
12 13 14 15 16 17 18 Human Development Indicators Kenya, UNDP, http://www.hdrstats.undp.org.en/countries/profiles/KEN.html. http://www.wolframalpha.com/entities/countries/kenya/4v/ln/iu/. Human Development Indicators, ibid. http://www.kenya-advisor.com/kenya-economy.html. Ibid. Gross Domestic Product (Second Quarter 2010), ministry of planning http://www.planning.go.ke/. Kenya Economic Update, December 2010, edition no. 3, World Bank.

COUNTRY FACTS

7

4.2 implementation of the new constitution
The new constitution provides for a host of new institutions and governance structures from counties to a Senate. These and other provisions must be put into practice and made to work to take the country forward. Narrow party-political and personal interests which presently threaten the reform process need to be overcome.

4.3 Agriculture
The agricultural sector is experiencing constant shifts in cropping patterns due to price changes, lack of improved seeds during planting season, the high cost of fertiliser and market inefficiencies. Farmers lack access to inputs, financial services, improved technology and efficient markets, and have overused the land for crop production without rest.19 The weather has also not been favourable since 2007, with dramatically less than expected rainfalls. As a consequence, food prices have reached an all-time high.20

4.4 Poverty and unemployment
According to the United Nations Development Programme’s (UNDP) Human Development Index, 50 per cent of Kenya’s population is categorised as ‘deprived’, with nearly 20 per cent living below the poverty line of US$ 1.25 per day.21 The unemployment rate is estimated to stand at 40 per cent, with young people being the most affected.22 The resulting unhappiness about the low standard of living and lack of perspective among large parts of the population fuel perceptions of real or imagined rivalry, and thus, in turn, tend to reinforce animosities between the various groupings – or be exploited for that purpose by political players. This vicious cycle needs to be broken.

5

Media and communication landscape

Radio is the most accessible and affordable medium in Kenya. A survey to establish radio and television ownership, conducted in February and March 2008, revealed that at least 10.7 million Kenyan homes had access to either a radio or a television set.
19 20 21 22 http://internationalyouthforchange.org/index.php?option=com_content&view=article&id=6&Itemid=5. J. Shikwati, ‘Kenya Economy needs Tough Tax-Justice Stimulus’, African Executive, 19–26, March 2008. Human Development Indicators, ibid. http://www.indexmundi.com/kenya/unemployment_rate.html.

8

P U B L I C BROADCASTING IN AFRICA: KENYA

Some 7.5 million homes had radios while 3.2 million owned television sets. Of the homes with radios, 5.5 million were in rural areas and 1.9 million in towns. 1.8 million television set owners lived in the rural areas and 1.4 million in the urban centres.23 The airwaves were liberalised in the early 1990s, with no broadcasting legislation or regulatory system in place. The Communications Commission of Kenya (CCK) is mandated to manage the radio frequency spectrum, but the awarding of licences and frequencies was carried out selectively, on an ad-hoc basis and with no clear pattern or policy.24 The number of radio stations has grown significantly. As of December 2010, 98 FM radio stations were on air (41 in the capital Nairobi alone). In addition there were 19 TV channels (12 in Nairobi).25 (For more details see chapter 3.) The print-media market has blossomed over the past few years. According to the latest available figures, the circulation of English dailies increased by 10.2 per cent from 2006 to 2007; the circulation of morning papers published in English and Swahili grew by 10.2 and 13.7 per cent respectively. Weekly newspaper circulation also increased by 40.8 per cent in 2007 (compared to a decline of 9.8 per cent recorded the previous year). This increase, however, is to be attributed to 2007 being an election year – periods which have always recorded spikes in readership.26 The market is dominated by two publishing houses, the Nation Media Group (NMG) and the Standard Group. Nation Media Group (NMG) owns the Daily Nation and Sunday Nation, The Saturday Nation, Business Daily, the Kiswahili-language daily Taifa Leo and the weekly The East African, two television stations (Nation TV and e-Africa) as well as two radio stations, easyfm and QFM. The Group is listed on the Nairobi Stock Exchange and the majority shareholder is the Aga Khan Foundation for Economic Development (AKFED). The AKFED empire in East Africa is extensive and includes businesses in a broad range of industries: banking, insurance, real estate, education, health, power generation, airlines, and hotels. The Standard Group Limited runs the daily The Standard with sister publications on Saturdays and Sundays, the Kenya Television Network (KTN) and Radio Maisha. It is owned by former president Daniel Arap Moi, his son Gideon and businessman Joshua Kulei. In addition to the newspapers published by the two conglomerates there are a number of other titles, among them The People Daily, previously owned by politician
23 Audience Research Survey Kenya, prepared by The Steadman Group, Kampala/Uganda, March 2009. 24 African Media Barometer 2005, Windhoek 2005. 25 Calculated from: List of assigned TV broadcast frequencies_2010. http://www.cck.go.ke/licensing/broadcasting/ register.html. 26 Kenya’s Economic Survey 2008, National Bureau of Statistics.

COUNTRY FACTS

9

Kenneth Matiba and acquired by TV Africa Holdings in 2009, and the daily Nairobi Star, owned by businessman Patrick Quarcoo and William Pike of the Radio Africa Group. Table 1:
title Daily Nation The Standard The People Taifa leo Business Daily Nairobi Star The Financial Post Coast Week The East African Sunday Nation Sunday Standard The People on Sunday Taifa Jumapili

Newspapers in Kenya
Publisher Nation Media Group Standard Group Ltd TV Africa Holdings Nation Media Group Nation Media Group Radio Africa Group P.G. Kariuki Coast Week Newspapers Ltd Nation Media Group Nation Media Group Standard Group Ltd TV Africa Holdings Nation Media Group frequency daily daily daily daily daily daily weekly weekly weekly Sundays Sundays Sundays Sundays circulation 180 000 (PE)* 110 000 (PE) 65 000 (PE) 44 000 (PE) 15 000 (PE) 10 000 (PE) 60 000 (PE) 12 000 (PE) 40 000 (PE) 280 000 (ABC)** 150 000 (PE) 38 000 (PE) 000 (ABC)

* Publisher’s estimate ** Audited Bureau of Circulation figure Source: The Status of the Media in Kenya. A report of the Media Council of Kenya, 200485

The ministry of information runs the Kenya News Agency (KNA) which collects information mainly from the rural areas. The ministry’s policy document states that the rural press offices are ‘strategically located to ensure narrow-casting in the coverage of development news to enhance information flow at the grassroots level’. The main consumers of KNA news are the Kenya Broadcasting Corporation (KBC) and Taifa Leo newspaper. In August 2009, the agency launched a weekly newspaper, Kenya Today, carrying stories from rural areas. The department is also setting up 24 information resource centres27 with the assistance of the World Bank, which provided KES 80 million (US$ 986 000) for the purpose.28 The Kenya Information Communication Technology (KICT) Board invested KES 19 million (US$ 230 000) on state-of the art equipment and KES 60 million (US$ 740 000) on local area network (LAN) and bandwidth connectivity.

27 ‘Exciting Times Ahead for State News Agency’, Kenya Today, 16–22 November 2009. 28 http://www.xe.com, 20 January 2011.

10

P U B L I C BROADCASTING IN AFRICA: KENYA

With the expansion of the ICT infrastructure, most of the country is now being serviced by high capacity transmission links. The government has put in place the National Optic Fibre Backbone Infrastructure (NOFBI) meant to cover 80 per cent of all districts in Kenya. It is also establishing ICT villages or digital villages in various parts of the country. The centres are designed to help people access e-mail services, make electronic payments for services, and access information. The services set to be available to all citizens across the country also include access to public information, remote online education, data gathering and registration, and licensing services. The telecommunication sub-sector has continued to witness tremendous subscriber growth supported by heavy investment. The performance has been further boosted by the introduction of wireless technology for providing telephone services by Telkom Kenya and Local Loop Operators. The mobile phone network is growing notably. By the end of 2009, Kenya had 17.6 million active phone users,29 and the figure had grown to 21 million by mid 2010, equivalent to one per adult,30 served by four licensed cellular operators. This growth can be attributed to increased mobile coverage and availability of low denomination calling cards. The four mobile providers are now turning their attention to data services. In comparison, the fixed network is performing poorly. In 2008, Telkom Kenya operated 280 000 landlines31 and the number of conventional payphones decreased from 6 000 booths in 2006 to 5 210 in 2008. Though this reduction poses a threat to Universal Access, increased mobile penetration and access to mobile community pay phones have significantly increased access to voice services.32 Internet usage has grown from 200 000 users in 2000 (0.7 per cent of the population) to 3.6 million in 2009 (8.6 per cent).33 Most Kenyans access the internet through mobile phones and internet cafés as opposed to personal computers, either at work or at home. The Digital Life Survey, a report recently launched by TNS Research International,34 shows that 60 per cent of the people use their handsets, compared to 29 per cent using PCs at home, 33 per cent using PCs at work and 41 per cent accessing the internet in cyber cafés. The leading activities on mobile internet are social networking for 67 per cent of users and accessing e-mails (54 per cent). Fourteen per cent use it for administrative work like filing tax returns and conducting internet banking.35

29 30 31 32 33 34 35

‘Digital Technology is Transforming Kenya’, KenyaToday, 7–13 December 2009. Kenya Economic Update, December 2010, edition no. 3, World Bank Publication. IDG News Service, 27 May 2008. http://www.cck.go.ke/UserFiles/File/SECTOR_STATISTICS_REPORT_Q2_0809.pdf, p. 10. Internet World stats http://www.internetworldstats.com/af/ke.htm. ‘Kenya turns to phones for Internet browsing’, Daily Nation, 3 December 2010. ‘Kenya’s mobile revolution bucks international trend’, The Standard, 3 July 2010.

COUNTRY FACTS

11

6 Brief history of broadcasting
Radio broadcasting in Kenya started in 1928 with a single channel targeting European settlers and providing news mainly from their countries of origin and other parts of the world. In 1953, the first radio broadcast service (African Broadcasting Services) was created for Africans, with programmes in Kiswahili, Dholuo, Kikuyu, Kinandi, Kiluhya, Kikamba and Arabic.36 Regional radio stations were set up in Mombasa (Sauti ya Mvita), Nyeri (Mount Kenya Station) and Kisumu (Lake Station). In 1959 the Kenya Broadcasting Corporation was established by the British colonial administration with the objective of providing both radio and television broadcasting. Television was found likely to be financially self-reliant if it was set up as a fully fledged commercial outfit.37 A consortium of eight European and North American companies was contracted by the colonial administration to establish the national television broadcasting system. By the end of 1962, a transmission station and recording studio had been set up, and television was officially launched the following year. When Kenya gained independence, the new government worried about the threat to national sovereignty posed by the foreign ownership of the broadcasting infrastructure. The Corporation was nationalised in June 1964, renamed Voice of Kenya (VoK) and became a department under the ministry of information, broadcasting and tourism (later renamed the ministry of nformation and broadcasting). Its new role, as the government mouthpiece, was to provide information, education and entertainment. In 1989, the VoK was renamed the Kenya Broadcasting Corporation through the KBC Act, and accorded semi-autonomous status founded on the premise that it would adopt a more commercially oriented stance. Although the Corporation unveiled grandiose plans to expand news coverage and improve local programming content, it was unable to chart an independent editorial position, and it is still widely seen as part of the government propaganda machinery. Gradual liberalisation of the airwaves started in late 1989 when the government licensed the privately owned Kenya Television Network (KTN) to broadcast in Nairobi. This was a joint initiative of Kenya’s ruling party, KANU, and London-based Maxwell Communications, but the British media group withdrew after the death of its founder, Robert Maxwell. Initially, KTN offered a mixture of re-transmissions of the American Cable News Network (CNN) programming and light entertainment, but over time evolved and now features local news bulletins and a few local productions. It was seen
36 Report of the Task Force on Migration from Analogue to Digital Broadcasting in Kenya, September 2007, p. 6. 37 Nixon Kareithi, Encyclopaedia of Radio. The Museum of Broadcast Communications, 2003, http://www.museum.tv/ eotvsection.php?entrycode=kenya.

12

P U B L I C BROADCASTING IN AFRICA: KENYA

as a relief from the conformity previously on offer as it provided a different voice to the government controlled Kenya Broadcasting Corporation (KBC). Currently the network derives most of its revenue from advertising and TV production services. In 1995, Capital FM became the first private radio station to be licensed by the government. In 1996 the KBC established Metro FM, an entertainment station operating on a commercial basis. The KBC also operates a national radio network on AM Medium Wave. From the mid-1990’s, the government fully liberalised the airwaves by issuing broadcasting permits and licences to many private entities. It also authorised foreign radio stations to operate in the country. Liberalisation of the airwaves has resulted in the transformation of broadcasting, with numerous stations now serving as platforms for information and public discussion. They allow ordinary citizens to debate issues they find important, including those of governance. Kenyans also have a wider choice of entertainment and information.

2
Media Legislation and Regulation

1

International, continental and regional instruments

Kenya is party to a number of international, continental and regional legal instruments relating to freedom of expression. Up to 2010, the country was not bound by these legal instruments because it had a ‘dualistic legal system’ in which international and domestic laws were required to be treated as separate legal orders, existing independently of one another. Consequently, international principles were not automatically binding on the state once it had ratified a treaty, and it was necessary for the Kenyan government to domesticate international principles before they could be invoked by citizens. However, this state of affairs is set to change with Kenya’s new constitution adopted in August 2010. Article 2(5) says that ‘the general rules of international law shall form part of the law of Kenya’ and article 2(6) states that ‘any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution’.

1.1

united nations

The following instruments of the UN are relevant to freedom of expression: The United Nations Universal Declaration of Human Rights (adopted in 1948) The Universal Declaration is not a treaty that is ratified by states and thus legally binding. However, scholars now regard it as either having itself become international customary law or as a reflection of such law.38 In either case the inclusion of freedom
38 See, for example, H. Hannum, ‘The Status and Future of the Customary International Law of Human Rights: The Status of the Universal Declaration of Human Rights in National and International Law’, Georgia Journal of International and Comparative Law, 287; H.J. Steiner, P. Alston and R. Goodman, International Human Rights in Context: Law, Politics, Morals: Texts and Materials, Oxford: Oxford University Press (third edition), 2007.

14

P U B L I C BROADCASTING IN AFRICA: KENYA

of expression in the Declaration implies that even states that have ratified none of the relevant treaties are bound to respect freedom of expression as a human right. Article 19 of the Declaration deals with the right to freedom of expression:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

international covenant on civil and Political rights (enacted by the UN in 1966) The International Covenant on Civil and Political Rights (ICCPR) is a treaty that elaborates on many of the rights outlined in the Declaration. Kenya is a party to the ICCPR. The Covenant’s article 19 declares:
1. Everyone shall have the right to hold opinions without interference; 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

the Windhoek declaration on Promoting an independent and Pluralistic African Press (adopted by the General Assembly of UNESCO in 1991) The UN Educational, Scientific and Cultural Organisation’s (UNESCO) Windhoek Declaration, like other non-treaty documents, has moral authority by representing a broad consensus of the international community on the detailed interpretation of the Universal Declaration and other relevant standards as they relate to the press in Africa. Article 9 of the Windhoek Declaration states:
(We) declare that 1) Consistent with article 19 of the Universal Declaration of Human Rights, the establishment, maintenance and fostering of an independent, pluralistic and free press is essential to the development and maintenance of democracy in a nation, and for economic development. 2) By an independent press, we mean a press independent from governmental, political or economic control or from control of materials and infrastructure essential for the production and dissemination of newspapers, magazines and periodicals.

MEDIA LEGISLATION AND REGULATION

15

3) By a pluralistic press, we mean the end of monopolies of any kind and the existence of the greatest possible number of newspapers, magazines and periodicals reflecting the widest possible range of opinion within the community.

1.2 African union
Kenya is a member of the African Union (AU), whose Constitutive Act states that its objectives include the promotion of ‘democratic principles and institutions, popular participation and good governance’ (article 3[g]). The most important human rights standard adopted by the AU or its predecessor, the Organisation of African Unity (OAU), is: The African Charter on Human and Peoples’ Rights (adopted 27 June 1981)39 Article 9 on freedom of expression states:
• • Every individual shall have the right to receive information. Every individual shall have the right to express and disseminate his opinions within the law.

The African Commission on Human and Peoples’ Rights (ACHPR) is the body established under the Charter to monitor and promote compliance with its terms. Declaration of Principles on Freedom of Expression in Africa In 2002, the African Commission adopted this Declaration to provide a detailed interpretation for member states of the AU of the rights to freedom of expression outlined in the African Charter. It states in its article I:
Freedom of expression and information, including the right to seek, receive and impart information and ideas, either orally, in writing or in print, in the form of art, or through any other form of communication, including across frontiers, is a fundamental and inalienable human right and an indispensable component of democracy. Everyone shall have an equal opportunity to exercise the right to freedom of expression and to access information without discrimination.

39 Organisation of African Unity, The African Charter on Human and Peoples’ Rights, adopted 27 June 1981, doc. CAB/ LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986.

16

P U B L I C BROADCASTING IN AFRICA: KENYA

The Declaration goes on to say in article II:
No one shall be subject to arbitrary interference with his or her freedom of expression; and Any restrictions on freedom of expression shall be provided by law, serve a legitimate interest and be necessary in a democratic society.

The Declaration details how such freedom of expression should be realised. Of particular relevance to this study is the statement regarding public broadcasting (article VI):
State and government controlled broadcasters should be transformed into public service broadcasters, accountable to the public through the legislature rather than the government, in accordance with the following principles: • public broadcasters should be governed by a board which is protected against interference, particularly of a political or economic nature; • the editorial independence of public service broadcasters should be guaranteed; • public broadcasters should be adequately funded in a manner that protects them from arbitrary interference with their budgets; • public broadcasters should strive to ensure that their transmission system covers the whole territory of the country; and • the public service ambit of public broadcasters should be clearly defined and include an obligation to ensure that the public receive adequate, politically balanced information, particularly during election periods.

The document also states that freedom of expression ‘places an obligation on the authorities to take positive measures to promote diversity’ (article II), that community and private broadcasting should be encouraged (article V), and that broadcasting and telecommunications regulatory authorities should be independent and ‘adequately protected against interference, particularly of a political or economic nature’ (article VII). The Declaration furthermore provides for freedom of access to information and states that ‘the right to information shall be guaranteed by law’ (article IV). African charter on democracy, elections and governance (2007) This Charter, adopted by African heads of state in 2007, highlights the importance of access to information in a democracy. It states:

MEDIA LEGISLATION AND REGULATION

17

(State parties shall) promote the establishment of the necessary conditions to foster citizen participation, transparency, access to information, freedom of the press and accountability in the management of public affairs. (Article 2[10]) State parties shall ... ensure fair and equitable access by contesting parties to state controlled media during elections. (Article 17 [3])

For the time being, though, these remain noble goals. By September 2009, 29 countries had signed the Charter but only two had ratified it (Mauritania and Ethiopia), and the treaty had thus not yet entered into force (which requires 15 ratifications).

1.3 regional legal instruments
Treaty establishing the East African Community Kenya is a member of the East African Community (EAC), whose founding treaty provides that membership of the community is conditional, among other things, on:
Adherence to universally acceptable principles of good governance, democracy, the rule of law, observance of human rights and social justice. (Article 3[3][b])

Protocol on Management of Information and Communication Kenya is a member of the International Conference on the Great Lakes Region, established in 2000 in response to UN Security Council resolutions calling for an international conference on peace, security, democracy and development in the Great Lakes region. The other members are Angola, Burundi, Central African Republic, Congo (Republic of), Democratic Republic of Congo, Uganda, Rwanda, Sudan, Tanzania and Zambia. In December 2006 heads of state and government of the member states agreed a Pact on Security, Stability and Development in the Great Lakes Region, with several protocols, including a Protocol on Management of Information and Communication which enjoins member states to respect a wide range of principles related to freedom of expression and the media. Among the objectives of the protocol established by article 2 are for member states to:
1. Promote freedom of opinion and expression and the free exchange of ideas in the Great Lakes Region; 2. Promote freedom of the media to receive and to impart information and ideas in the Great Lakes Region; 3. Promote pluralistic media and the new information and communications

18

P U B L I C BROADCASTING IN AFRICA: KENYA

technologies, and expand access to information in the Great Lakes Region; 4. Foster the emergence of independent and responsible media in the Great Lakes Region, namely by promoting media regulation and self-regulation bodies; 5. Promote professionalism in the media, namely through the establishment of adequate financial assistance mechanisms and strategies for strengthening Press professionals’ capacities.

While the principles outlined in these documents have been embraced to varying degrees, at least theoretically, in Kenya’s media regulatory processes, there is usually no explicit reference made to them.

1.4 other documents
African charter on broadcasting (2001) This Charter was adopted by media practitioners and international media and other human rights organisations at a UNESCO conference to celebrate ten years of the Windhoek Declaration. Although it has not been endorsed by any inter-state structures, it represents a consensus of leading African and international experts on freedom of expression and the media. The Charter specifies, amongst other things, that there should be a three-tier system of broadcasting (public, private and community), demands that ‘[a]ll state and government controlled broadcasters should be transformed into public service broadcasters’, and states that regulatory frameworks should be based on ‘respect for freedom of expression, diversity and the free flow of information and ideas’.

2

The Constitution of Kenya

Article 33 of the 2010 Constitution of Kenya guarantees freedom of expression as part of a Bill of Rights:
(1) Every person has the right to freedom of expression, which includes— (a) freedom to seek, receive or impart information or ideas; (b) freedom of artistic creativity; and (c) academic freedom and freedom of scientific research. (2) The right to freedom of expression does not extend to— (a) propaganda for war; (b) incitement to violence;

MEDIA LEGISLATION AND REGULATION

19

(c) hate speech; or (d) advocacy of hatred that (i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or (ii) is based on any ground of discrimination specified or contemplated in Article 27(4). (3) In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.

The prohibited grounds for discrimination listed in article 27(4) are ‘race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth’. It is interesting to note that the first two sub-articles of article 33 closely follow section 16 of the 1996 Constitution of South Africa. The term ‘hate speech’, however, is included in addition (without any definition), and ‘advocacy of hatred’ is defined more broadly. While in South Africa such advocacy must constitute ‘incitement to cause harm’ if it is not to be protected by the right to freedom of expression, the Kenyan provisions also refer to ‘ethnic incitement’ and ‘vilification of others’. Subarticle 3 on the ‘rights and reputations of others’ is another addition and the reference to ‘reputation’ in particular could have negative consequences for freedom of the media. What exactly such a reputation is will often be open to interpretation and in the course of investigative reporting, for example, the reputation of persons is bound to be impacted one way or the other. Article 34(1) and (2) guarantee the freedom of the media:
(1) Freedom and independence of electronic, print and all other types of media is guaranteed, but does not extend to any expression specified in article 33(2). (2) The State shall not— (a) 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; or (b) penalise any person for any opinion or view or the content of any broadcast, publication or dissemination.

Article 34(3) and (4) provide for an independent broadcasting regulator and a vision for state-owned media including a public broadcaster:

20

P U B L I C BROADCASTING IN AFRICA: KENYA

(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. (4) All State-owned media shall— (a) be free to determine independently the editorial content of their broadcasts or other communications; (b) be impartial; and (c) afford fair opportunity for the presentation of divergent views and dissenting opinions.

Article 34(5) provides for the establishment of a statutory media regulator:
Parliament shall enact legislation that provides for the establishment of a body, which shall— (a) be independent of control by government, political interests or commercial interests; (b) reflect the interests of all sections of the society; and (c) set media standards and regulate and monitor compliance with those standards.

The provisions in this article contradict clause IX of the African Commission on Human and Peoples’ Rights’ 2002 Declaration of Principles on Freedom of Expression in Africa, which states that ‘effective self-regulation is the best system for promoting high standards in the media’ and will be further discussed later in this chapter. Article 35 guarantees access to information:
(1) Every citizen has the right of access to— (a) information held by the State; and (b) information held by another person and required for the exercise or protection of any right or fundamental freedom. (2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person. (3) The State shall publish and publicise any important information affecting the nation.

MEDIA LEGISLATION AND REGULATION

21

Finally, article 24 deals with the limitations on these and all other rights listed in the Bill of Rights:
A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

The African Media Barometer (AMB), 40 a self-assessment exercise conducted regularly by representatives of media and civil society on the continent, notes in its 2009 Kenya report that the country is ‘emerging from years of autocracy’. While freedom of expression was also guaranteed in the previous constitution, the report stated that for journalists this freedom is still limited because of ‘official threats’. The report notes, though, that the main threat to the media does not come ‘necessarily because of the law, but because of ownership [of the media] and commercial interests’. On the other hand, citizens themselves ‘have been vocal on call-in shows on FM radio stations, … and have demonstrated a boldness that shows they are asserting their freedom of expression without fear’.

3

General media laws and regulations

There is a range of media laws and regulations on the statute books that need to be brought in line with the new constitution. Article 2(1) of the new basic law affirms the supremacy of the constitution: ‘This constitution is the supreme law of the Republic and binds all persons and all state organs …’. Consequently, article 2(4) states: ‘Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.’
40 African Media Barometer, Kenya Report 2009, Windhoek 2009.

22

P U B L I C BROADCASTING IN AFRICA: KENYA

Until amendments to such laws inconsistent with the new constitution have been passed by the National Assembly, however, they will remain in force. The sixth schedule of the constitution, which refers to transitional provisions, says in its article 7(1): ‘All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.’ This makes it incumbent upon the legislature to review and amend appropriately all legislation that might be not in harmony with the supreme law. Media laws which will thus need to be reviewed, redrafted or repealed include:

3.1 the Media Act 2007 and the Media bill 2010
The Media Act attempts to regulate the media by establishing a statutory Media Council. Section 2 of the Act defines media as ‘both electronic and print media engaged in any production for circulation to the public’, excluding book publishing, and ‘journalism’ as ‘the collecting, writing, editing and presenting of news or news articles in newspapers and magazines, radio and television broadcasts, and in the internet’. In order to qualify as a journalist a person needs to be recognised as such by the Media Council:
[J]ournalist means any person who holds a diploma or a degree in mass communication from a recognized institution of higher learning and is recognized as such by the Council, or any other person who was practicing as a journalist immediately before the commencement of this Act, or who holds such other qualifications as are recognized by the Council, and earns a living from the practice of journalism, or any person who habitually engages in the practice of journalism and is recognized as such by the Council.

Registration of journalists is listed amongst the various functions of the Media Council in section 4. Overall the council has wide-ranging competencies and responsibilities. Among these are to:
(a) mediate or arbitrate in disputes between the government and the media, between the public and the media and intramedia; (b) promote and protect freedom and independence of the media; (c) promote high professional standards amongst journalists; (d) enhance professional collaboration among media practitioners;

MEDIA LEGISLATION AND REGULATION

23

(e) promote ethical standards among journalists and in the media; (f) ensure the protection of the rights and privileges of journalists in the performance of their duties; (g) advise the government or the relevant regulatory authority on matters pertaining to professional, education and the training of journalists and other media practitioners; (h) make recommendations on the employment criteria for journalists; (i) uphold and maintain the ethics and discipline of journalists as set out in this Act and any other relevant law; (j) do all matters that appertain to the effective implementation of this Act; (k) compile and maintain a register of journalists, media enterprises and such other related registers as it may deem fit; (l) conduct an annual review of the performance and the general public opinion of the media, and publish the results thereof in at a least two local newspapers.

Section 5 emphasises 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’. In 2010 government published for comment a ‘Zero Draft’ Media Bill 2010 meant to fulfil the requirements of article 34(5) of the new constitution. The draft adds ‘any commercial enterprise or enterprises’ to the list of institutions from which the Council is supposed to be independent. Presently, according to section 6(1) of the Media Act 2007, the Council comprises 13 members, nominated by the Kenya Union of Journalists (2), the Media Owners Association (3), the Law Society of Kenya (1), the Editors Guild of Kenya (1), schools of journalism (2), the Kenya Correspondents Association (1), the Public Relations Society of Kenya (1), the Kenya Institute of Mass Communications (1), and the Kenya News Agency (1). The Draft Media Bill 2010 in its section 6 seeks to change this direct nomination procedure by media bodies only, obviously in order to comply with article 34(5)(b) of the new Constitution which states that such a council ‘shall … reflect the interest of all sections of the society’. Seven (instead of 13) members are to be appointed by the chief justice who will call for applications to be forwarded to the Judicial Service Commission. The Commission will then convene a committee comprising representatives of the Media Owners Association, the Kenya Union of Journalists, the ministry of justice, National Cohesion and Constitutional Affairs, the State Law Office and the Editors Guild of Kenya. After considering and interviewing the applicants, this committee will shortlist at least

24

P U B L I C BROADCASTING IN AFRICA: KENYA

three persons qualified for appointment as chairperson and nine persons qualified for appointment as members. The shortlisted names will then be forwarded by the Judicial Service Commission to the chief justice who will choose and appoint the chairperson and the members. The main difference between the existing law and the new bill is the stronger involvement of state organs in the appointment procedure. While under the present Media Act it is up to a number of media stakeholders to appoint the members of the council themselves, these are to be vetted in future by a committee which includes government representatives and finally selected by the chief justice, who is appointed by the president with the approval of the National Assembly, i.e. the ruling party or parties. The debate will focus on the question whether this change is in line with the new constitution, which enjoins Parliament ‘to enact legislation that provides for the establishment of a body, which shall be independent of control by government’. Funding comes mainly from monies appropriated by the National Assembly: KES 60 million (US$ 740 000) in 2009 and KES 50 million (US$ 620 000) in 2010. Levies imposed on all media enterprises and annual fees payable by journalists registered by the council (KES 2 000 [US$ 25] each) contribute a total of KES 8 million (US$ 100 000) per year. The funds are spent on salaries, council meetings, administration, training of journalists and media monitoring. The council also plans to go into research and publish annually a ‘Status of Media Report’, as well as to review journalism training curricula. The council establishes a Complaints Commission (section 23 of the Act) consisting of a chairperson ‘who holds or has held a judicial office in Kenya or who is an advocate of the High Court of Kenya of not less than ten years standing’ and four other persons ‘possessing experience and expertise in any one of the following areas, that is, journalism, media policy and law, media regulation, business practice and finance, entertainment, education, advertising or related social issues’. The Bill adds ‘performing arts’ to this list of areas of expertise. Section 26 of the Act says in its sub-section (1):
Any person aggrieved by (a) any publication, or any conduct of a journalist media enterprise or the Council; or (b) anything done against a journalist or media enterprise that limits or interferes with the Constitutional freedom of expression of such journalist or media enterprise, may make a written complaint to the Council setting out the grounds for the complaint, nature of the injury or damage suffered and the remedy sought.

MEDIA LEGISLATION AND REGULATION

25

The council refers the complaint to the complaints commission which, according to section 29, may, after hearing the parties involved, dismiss such grievance as ‘devoid of merit or substance’, ‘order an offending party to publish an apology and correction’ and/or ‘issue a public reprimand of the journalist or media enterprise involved’. Although section 26(1)(b) gives the council a mandate beyond dealing with complaints from consumers of media against publications or broadcasting stations and enables it, for example, to take up grievances of journalists who feel harassed by state organs, neither the act nor the bill make any provisions for decisions in this regard. Any party involved can appeal decisions of the complaints commission to the council; if the appellant is then still not satisfied he/she can take the appeal to the High Court. Final decisions shall be ‘enforced as an order of Court’. Section 37 provides for punitive sanctions if such decisions are not complied with: ‘a fine not exceeding fifty thousand shillings [US$ 600], or … imprisonment for a term not exceeding three months, or both’. Section 35(2) stipulates that the media ‘keep and maintain high professional and ethical standards and shall, at all times, have due regard to the Code of Conduct set out in the Second Schedule to this Act’. This code covers all aspects of journalism from ‘Accuracy and Fairness’ to ‘Hate Speech’. Media and human rights organisations throughout Africa make a strong case for voluntary self-regulation of the media in line with clause IX of the African Commission on Human and Peoples’ Rights’ 2002 Declaration of Principles on Freedom of Expression in Africa, which states that ‘effective self-regulation is the best system for promoting high standards in the media’. The situation in Kenya seems to be different. The media industry itself appears to favour a statutory media council – a body whose decisions, if need be, can be enforced as an order of a court of law, rather than relying on media houses to do the right thing of their own accord, as a matter of professional honour. The general feeling is that self-regulation has not been strong and effective enough whenever attempts to establish such voluntary systems were made in the past. In 2001, for example, the then voluntary Media Council of Kenya (MCK) drew up a code of conduct. The major goal at the time was to protect the country’s media from government interference. The council distributed the code, provided training and brought stakeholders together to discuss professional ethics. However, many journalists did not take the time to familiarise themselves with the code. According to a 2005 report 41 they believed that it was useful and important but they rarely
41 Produced by African Women and Child Features Services (AWC) and the Friedrich Ebert Stiftung (FES) to assess the impact of the code of conduct on journalism ethics in Kenya. 2005.

26

P U B L I C BROADCASTING IN AFRICA: KENYA

referred to it. Awareness of its existence did not translate into quality journalism. The widespread neglect of the code was partly attributed to the lack of an enforcement mechanism within media houses that would have ensured adherence. Mitch Odero, a former arbitration chair of the MCK, said in an interview in early 2008, 42 shortly after the Media Act came into force, that increasingly media owners were seeing media as a business and did not concern themselves with ethical and legal issues. ‘Such owners would rather employ untrained persons who will demand less [pay].’ Examples often cited in this regard are FM stations, many of which are by and large manned by untrained people who do not really care about the professional quality of service they provide. ‘These untrained persons know little about ethics and law, and this has led to utter disregard of the basic rules of reportage. There is need for [a] media law …’. In other African countries, such as Zambia and Nigeria, for example, registration of journalists and statutory media councils have summarily been declared incompatible with the guarantee of freedom of expression by the courts.

3.2 the books and newspapers Act 1960
According to section 11(1) of this Act any person who wants to start a newspaper has to be registered with the Registrar of Books and Newspapers and pay a bond of KES 1 million (US$ 12 300)
as security for or towards the payment of any monetary penalty or damages which may at any time be imposed upon or adjudged against him upon his conviction for any offence, under this Act or under any other written law, committed after the execution of the bond, and relating to the printing or publication of that newspaper …

This provision has tended to lock out small players. There are now many new emerging media which are not registered and thus do not provide office addresses or particulars of the places they operate from.

3.3 the films and stage Plays Act 1963
According to this Act no film may be produced in Kenya without approval by a licence office appointed by a government minister (section 4).
42 Interview 13 February 2008.

MEDIA LEGISLATION AND REGULATION

27

3.4 the Kenya broadcasting corporation (Kbc) Act 1989 and the Kenya communications Acts 1998 and 2009
These laws are presently subject to review, with the latter to be replaced by a new piece of legislation published as a bill in 2010. For details see chapters 5 and 6.

4 Other laws which impact on media and freedom of expression
There are other pieces of legislation that also have an impact on a free media and need to be amended to make them compatible with the new constitution of 2010. Among these are:

4.1 the Penal code
Section 66 says:
(1) Any person who publishes any false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace is guilty of a misdemeanour. (2) It shall be a defence to a charge under subsection (1) if the accused proves that, prior to publication, he took such measures to verify the accuracy of the statement, rumour or report as to lead him reasonably to believe that it was true.

According to section 36 such ‘misdemeanour’ is punishable with imprisonment for a term not exceeding two years or with a fine, or with both. Sections 194 to 199 deal with defamation. Section 194 defines ‘libel’ as ‘any defamatory matter concerning another person, with intent to defame that other person’, punishable with a jail term of up to two years and/or a fine. ‘Defamatory matter’ is defined in section 195 as any ‘matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation’. Section 197 provides for a public interest defence by saying that defamation is not unlawful if ‘the matter is true and it was for the public benefit that it should be published’. There has been an alarming increase in libel and defamation suits in recent years. In many instances lawyers take the initiative by advising clients that they ‘can get

28

P U B L I C BROADCASTING IN AFRICA: KENYA

money’43 out of a certain media house. There are no limitations on damages, with the result that lawyers can demand very high amounts based on precedents – between KES 20 and 30 million (US$ 250 000 to 370 000). For example during the Moi regime, courts ruled in favour of a former cabinet minister, Nicolas Biwott, 44 in libel cases. Biwott was awarded KES 20 million (US $250 000) in a defamation suit he had filed against The People newspaper for publishing an article accusing him of corruption. Biwott won four libel cases, bringing his total awards to KES 60 million (US$ 740 000). The extremely high legal costs incurred in the process often threaten the accused media companies with bankruptcy. For this reason, media houses prefer to settle out of court, in keeping with the motto that a bad settlement is better than a good judgment. The bigger organisations retain permanent legal advisers to avoid such claims in the first place. All this has resulted in a dangerous decline in reporting on corruption. The threat of being sued also affects booksellers and librarians, who have taken to seeking legal advice before handling certain publications, thereby inhibiting intellectual freedom and access to information. Section 67 of the Penal Code provides special protection for foreign dignitaries against defamation:
Any person who, without such justification or excuse as would be sufficient in the case of the defamation of a private person, publishes anything intended to be read, or any sign or visible representation, tending to degrade, revile or expose to hatred or contempt any foreign prince, potentate, ambassador or other foreign dignitary with intent to disturb peace and friendship between Kenya and the country to which such prince, potentate, ambassador or dignitary belongs, is guilty of a misdemeanour.

Section 77 deals with subversion and defines ‘subversive means’ in sub-section 3(f), among others, as any means
intended or calculated to bring into hatred or contempt or to excite disaffection against any public officer, or any class of public officers, in the execution of his or their duties, or any naval, military or air force or the National Youth Service for the time being lawfully in Kenya or any officer or member of any such force in the execution of his duties …
43 Oloo Janak, chair, Kenya Correspondents Association (KCA), interview on 12 February 2008. 44 Biwott was an extremely powerful politician during the KANU regime and known to have been close to then President Moi.

MEDIA LEGISLATION AND REGULATION

29

Although ‘comments or criticism made in good faith and with a view to the removal of any causes of hatred or enmity between races and communities’ are not classified as ‘subversive’, this section could be used to silence strongly expressed opinions.

4.2 the national cohesion and integration Act 2008
Section 62 makes it an offence for a person to utter words ‘intended to incite feelings of contempt, hatred, hostility, violence or discrimination against any person, group or community on the basis of ethnicity or race’, and imposes a penalty of ‘a fine not exceeding one million shillings (US$ 12 300) or imprisonment for a term not exceeding five years, or both’.

4.3 the Preservation of Public security Act 1967
Section (2)(d) of this act gives the president the power to derogate from the right to free expression even in times of peace without legislative or judicial oversight. It says that regulations imposed by the president for the preservation of public security may make provision for:
… the censorship, control or prohibition of the communication of any information, or of any means of communicating or of recording ideas or information including any publication or document, and the prevention of the dissemination of false reports.

5

Conclusions and recommendations

The new Constitution of Kenya 2010 guarantees freedom of expression and the media according to international standards and in line with the Declaration of Principles on Freedom of Expression in Africa adopted by the African Commission on Human and Peoples’ Rights (ACHPR) in 2002. Article 34(5), however, provides for a statutory media regulator. The establishment of such a body goes against the principles expressed in the declaration and ignores best practice in Africa and beyond. Clause 9 of the Declaration says:
Any regulatory body established to hear complaints about media content, including media councils, shall be protected against political, economic or any other undue interference. Its powers shall be administrative in nature and it shall not seek to usurp the role of the courts.

30

P U B L I C BROADCASTING IN AFRICA: KENYA

The Media Act 2007, which established a statutory Media Council supported by the media industry, attempted to provide for a semblance of self-regulation of the media combined with the possibility of recourse to the courts to enforce decisions. The Media Bill 2010, while meant to bring this act in line with the new constitution, greatly strengthens the role of government in the council. It could thus be seen as incompatible with the new constitution, which stipulates that such a council should be independent from government. The discrepancy between the revenue received by the Media Council from the state and that generated by fees/levies (a ratio of seven to one) reveals a dangerous dependency of the regulatory body on government funding. Other pieces of legislation with an impact on freedom of expression and freedom of the media need to be harmonised with the new constitution and its Bill of Rights. In particular, the provisions on defamation in the Penal Code pose an immediate threat to freedom of the media because they lend themselves to abuse with the aim of crippling media houses into bankruptcy. This has a chilling effect on independent journalism. The Books and Newspapers Act 1960, which imposes payment of a substantial bond for any new publication, locks out small players from the market or drives them into illegality.

recommendations
Media regulation • While the existence of a statutory media council goes against the Declaration of Principles on Freedom of Expression in Africa and best practice elsewhere on the continent, it needs to be recognised that such a body has been made obligatory by the new constitution – which is unlikely to be changed in the near future. With this in mind, the Media Bill 2010 should be reviewed to ensure that as many elements of self-regulation as possible are included by: – developing a formula for membership of and appointment procedures which guarantee the independence and integrity of the Council and ensure that both the media and the public at large are represented on it; – introducing mechanisms to procure funds from the industry for the Council to avoid dependence on the state. • There should be no registration of journalists by any statutory body. • Publications should not be required to register with a special registrar or to pay any bond before going into business. It is sufficient for them to comply with the Companies Act. The Books and Newspapers Act should therefore be repealed.

MEDIA LEGISLATION AND REGULATION

31

Law reform in regard to legislation affecting the media • The appropriate media lobby groups should initiate an audit of all pieces of legislation affecting the media which need to be reviewed in order to conform to the new constitution. • Foremost among such legal provisions in need of review are: – sections 194 to 199 of the Penal Code, whereby defamation should be de-criminalised and become a matter of civil law, and the amounts of damages imposed must be limited by law. – section 67 of the Penal Code, which gives special protection to foreign dignitaries, must be repealed. – sections 66 (false statements) and 77 (subversion) must be reviewed to avoid any abuse of these provisions. – section 62 of the National Cohesion and Integration Act 2008 with its broad definition of incitement endangers freedom of expression and must be brought in line with the constitution. – section 2(d) of the Preservation of Public Security Act, which empowers the president to limit freedom of expression, must be repealed. Access to information • Freedom of information legislation needs to be developed with the full participation of civil society in order to give effect to the right to access to information as guaranteed in article 35 of the new constitution.

3
The Broadcasting Landscape

1

The Kenya Broadcasting Corporation

The Kenya Broadcasting Corporation (KBC) is the only broadcaster in the country with a nationwide network for both radio and television, including services to remote rural areas which may not make economic sense for commercial broadcasters. However, in some parts of the country transmission is hampered by a lack of electricity. The KBC runs the following channels:

1.1

Public service radio
• National Kiswahili service with a listenership ‘over the past seven days’ of 52 per cent;45 • National English service (listenership 44 per cent); • Regional Eastern service transmitting in Somali, Borana, Rendile, Burji and Turkana (this cluster serves the marginalised and remote areas in Kenya); • Regional Central service transmitting in Meru, Embu, Maasai and Kamba; • Regional Western service transmitting in Luo, Kisii, Kalenjin, Kuria, Teso, Luhya, Suba and Pokot.

1.2 commercial radio
• Metro FM transmitting to the major urban areas of Nairobi, Mombasa, Nakuru, Nyeri, Eldoret and Kisumu; • Coro FM transmitting to Nairobi and the Mount Kenya Region (listenership footprint of 65 per cent);
45 The Steadman Group, Audience Research Survey, Kenya – March 2009, Kampala 2009.

THE BROADCASTING LANDSCAPE

33

• Pwani FM transmitting to the Coastal region (listenership footprint of 44 per cent).

1.3 television service
• Free-to-air KBC, Channel One, serving the entire country (viewership of 68 per cent). (For details see chapter 6.)

2

Commercial broadcasters

Liberalisation of the airwaves began in the early 1990s. There is now a vibrant broadcasting industry in Kenya. Table 2: Commercial radio stations in Kenya
licence holder Stangy Boyz Garissa FM Kalee Ltd Royal Media Services Royal Media Services Royal Media Services Royal Media Services Royal Media Services station Sound Asia Garissa FM Kass FM Chamge FM Hot 96 Mulembe FM Inooro FM Radio Citizen location(s) Nairobi, Mombasa Nairobi Nairobi, Mombasa, Kisumu, Nakuru, Eldoret, Kisii Nairobi, Nakuru, Eldoret Nairobi, Mombasa, Kisumu, Nakuru, Nyahururu, Nyeri, Eldoret Nairobi, Eldoret, Webuye Nairobi, Nakuru, Nyahururu, Nyeri, Eldoret, Meru, Kanyenyeini Nairobi, Mombasa, Kisumu, Nakuru, Nyahururu, Nyeri, Eldoret, Webuye, Machakos, Meru, Chuka, Kanyenyeini, Kitui, Malindi, Garissa, Wajir, Kisii, Kibwazi, Voi, Narok, Kapenguria, Homabay, Maralai, Marsabit Nairobi, Mombasa, Kisumu, Nakuru, Kisii, Homabay Mombasa, Machakos, Kitui, Kibwezi Machakos Meru Malindi Nairobi, Kisii Nairobi Nairobi, Mombasa, Kisumu, Nyahururu, Nyeri, Webuye, Meru, Malindi, Kibwezi, Voi, Kapenguria

Royal Media Services Royal Media Services Royal Media Services Royal Media Services Royal Media Services Royal Media Services Bridge Media Digitopia

Ramogi FM Musyi FM Gold FM Muuga FM Bahari FM Egesa Homeboyz Radio Milele FM

34
licence holder EATN Radio One IPP Nation Media Group GO Communications GO Communications Radio Holdings International station QFM East Africa Radio Easy FM Radio 1 Classic 105 Radio Jambo

P U B L I C BROADCASTING IN AFRICA: KENYA

location(s) Nairobi, Mombasa, Nakuru, Nyeri, Eldoret, Meru Nairobi Nairobi, Mombasa, Kisumu, Nakuru, Nyeri, Eldoret, Meru Nairobi, Mombasa, Nakuru Nyeri, Kitui, Malindi, Kapenguria Nairobi, Mombasa, Kisumu, Nakuru, Nyahururu, Nyeri, Eldoret, Webuye, Meru, Kitui, Malindi, Garissa, Kisii, Kibwezi, Voi, Lamu, Narok, Kapenguria, Maralai Machakos Nairobi, Mombasa, Nakuru, Nyeri, Timboroa, Meru, Kitui, Malindi, Garissa, Voi Nairobi, Mombasa, Kisumu, Nakuru, Nyeri, Eldoret, Webuye, Meru Nairobi, Nakuru, Nyeri, Eldoret, Meru Nairobi, Mombasa, Nakuru, Malindi, Garissa, Voi Kisumu Nairobi, Mombasa, Kisumu, Nakuru, Nyeri, Meru Nairobi, Mombasa, Nakuru Nairobi Nairobi Nairobi Nairobi, Garissa, Mandera, Wajir, Dadhaab Nairobi, Mombasa Mombasa, Malindi, Garissa, Lamu Mombasa Mombasa, Malindi Mombasa, Malindi Mombasa, Nakuru, Eldoret, Timboroa, Meru Machakos Mombasa Kisumu Kisumu Kisumu Nakuru

Radio Holdings International Capital Group Radio Africa Regional Reach Neural Digital Neural Digital Toads Media Group Future Tech Electronics KIMC USIU Kitambo Communications North Eastern Media & Telecomms Lingam Enterprises Pro-Phase Marketing Universal Entertainment Southern Hills Development Agency Feba Radio Sirwo Enterprises Sirwo Enterprises Tony Msalame Productions Osienala Ke-Wi Media TBN Family Media Sauti ya Mwananchi FM & TV

Classic 105 Capital FM Kiss 100 Kameme FM Radio Umoja FM Namulolwe Radio Maisha Radio 316 KIMC USIU Classic 105 Star FM East FM Radio Salaam Rahma FM Kaya FM Baraka FM Classic 105 x-fm Sheki FM Radio Lake Victoria Radio Sahara Radio 316 Sauti ya Mwananchi

THE BROADCASTING LANDSCAPE

35
Webuye, Kapenguria Machakos Machakos Kangema, Narok, Bunyala West Kitui Malindi, Garissa, Lamu Malindi Garissa, Wajir Kericho Kisii Voi Lodwar
46

West Media Ltd Sauti Communications Eastern Broadcasting Corporation Kenya Meteorological Department Eastern Communications Systems Rahma Broadcasting Ltd Sauti Ya Pwani Garissa FM Yepchinit FM & TV Ltd Star Radio & TV Network

West FM Power FM Mbaitu FM Kangema FM Syokimau FM Radio Rahma Setal Radio Frontier Radio Sema FM Q-FM

Dominion Central Links for mwanedu fm Development Abeingo Networking SHG Hossana 89.5 FM

Source: Compiled from: List of assigned broadcast frequencies 2010

The commercial radio market is dominated by six groups: • Royal Media Services (RMS), a multi-media house which owns 12 radio stations. Radio Citizen is their flagship channel and has the widest coverage of all private stations. The company is owned by businessman Samuel Macharia who is said to be politically well-connected. • The Radio Africa Group owns two radio stations and another two through Radio Holdings International. Of these, Radio Jambo has the widest reach, covering most of the country. The group is owned by Ghanaian Patrick Quarcoo. • Other operators with a wide reach are the Capital Group owned by businessman Chris Kirubi (Capital FM), the Nation Media Group, owned by the Aga Khan Foundation (Easy FM), Kalee Ltd, owned by C. Kulei Joshua (Kass FM), and Digitopia (Milele FM). Another prominent media owner has been Rose Kimotho of Regional Reach Ltd. who made history as the first Kenyan woman to start a radio station. Her Kameme FM, broadcasting in Kikuyu, was seen as a symbol of the power of radio in rejuvenating indigenous languages. She also launched K24, a television news station. However, these two stations have since been acquired by TV Africa Holdings (now trading as Media Max Ltd).
46 http://www.cck.go.ke/licensing/broadcasting/register.html. The list includes small vernacular radio stations which are classified by the Communications Commission of Kenya as ‘commercial’.

36

P U B L I C BROADCASTING IN AFRICA: KENYA

The programming formats of commercial radio stations are mainly entertainment with news updates at the top of the hour, sometimes also news briefs on sports and business. Almost all stations have call-in programmes. According to audience research done in 2008, 47 the most favourite private radio stations are: Citizen FM with a listenership of 61 per cent ‘over the past seven days’, Kiss FM (29 per cent), Easy FM (26 per cent), Classic FM (19) and Capital FM (11). Table 3: Commercial television stations in Kenya
licence holder EATN DMTV Royal Media Services Nation Media Group Kitambo Communications Capital Group Lancia Media KTN Baraza Ltd Radio One IPP Stellavision station(s) EATN TV DMTV Citizen NTV Kiss TV GBS Freeview KTN EATV STV location(s) Nairobi, Mombasa, Nakuru, Nyeri, Eldoret, Nyambene Nairobi, Mombasa, Kisumu, Nakuru, Eldoret Nairobi, Mombasa, Kisumu, Nyeri, Eldoret, Rongai, Nyambene, Webuye, Kisii, Nyahururu Nairobi, Mombasa, Kisumu, Nakuru, Nyeri, Eldoret, Nyambene Nairobi Nairobi Nairobi Nairobi, Mombasa, Kisumu, Nakuru, Nyeri, Eldoret, Nyambene, Webuye, Kisii Nairobi Mombasa, Kisumu, Nakuru, Nyeri, Eldoret
48

Source: Compiled from: List of assigned broadcast frequencies 2010

Three television stations dominate the private sector: Nation TV (NTV) owned by the Nation Media Group (Aga Khan Foundation), Citizen TV owned by Royal Media Services (businessman Samuel Macharia), and Kenya Television Network (KTN) owned by KTN Baraza Ltd, part of Standard Group Ltd whose owners are former President Daniel Arap Moi, his son and a businessman Joshua Kulei. By virtue of their cross-media holdings (see below) and their ownership, the channels are seen as wielding significant political power, but also as independent from government control. All these stations are mainly entertainment oriented and dominated by foreign material such as soap operas, Nigerian movies and music, but also offer extensive news bulletins. Citizen TV, which has carved out a niche for itself in the production of local content, has prompted some competitors to also invest more strongly in this area of programming.

47 The Steadman Group, op cit. 48 Ibid.

THE BROADCASTING LANDSCAPE

37

Other stations have introduced an element of specialisation into Kenyan TV by addressing the interests of specific segments of the population. East African Television (EATV), owned by Tanzanian businessman Reginald Mengi, has been particularly successful with the youth due to its promotion of African music. According to audience research in 2008, 49 the most favourite private TV stations are Citizen TV with a viewership ‘over the past seven days’ of 78 per cent, KTN (72) and NTV (70). Station owners, both radio and TV, are known to be quietly influencing editorial decisions, especially on controversial political stories and reports involving major advertisers. The former chief executive of Radio Simba, Sheila Amdany,50 said she had never influenced editorial decisions until the 2007 post-election violence broke out. At the time the station took a stand by airing programmes about peace and reconciliation and Amdany made it a requirement that as the owner she would be informed in advance of who was going to be invited to participate in important programmes such as live discussions. She said this was to ensure that interviewees who were known to be ‘militant’ and capable of inciting audiences were not given a platform to preach hatred when peace was so badly needed. Ondeko Aura51 of Kenya Television Network, on the other hand, denies that owners interfere with editorial decisions: ‘The station makes its own judgement on news items to be carried on air.’ However it is obvious to viewers that KTN essentially supports the main opposition party ODM and that it did the same during and after the 2007 election.52 The former executive director of the Media Council of Kenya (MCK), Esther Kamweru,53 points out that the ministry of information has on more than one occasion exercised unwarranted influence over decision making in the broadcasting sector. For example, she reported that the director of Kass FM was ‘cautioned’ by the ministry during the post-election violence period in early 2008. Companies with big advertising budgets have great clout over particular media organisations and the content they offer. A key example is Safaricom, the country’s leading mobile phone provider. In July 2007, The Leader, a now defunct weekly newspaper owned by Royal Media Services, published a story entitled ‘Who Gets Safaricom billions’, in which the company was accused of unethical corporate business practices – bordering on corruption, as the Parliamentary Committee on Public Investments later noted. The company retaliated by withdrawing all advertising and
49 The Steadman Group, op cit. 50 Interview with CEO Sheila Amdany in Nairobi, 29 January 2008. Radio Simba was acquired by the Standard Group in early 2009. 51 Assistant news editor, Kenya Television Network, interview 21 February 2008. 52 Robert Muhanji, an ordinary viewer, interview 21 February 2008. 53 Interview on 30 January 2008.

38

P U B L I C BROADCASTING IN AFRICA: KENYA

sponsorships from RMS’ print, radio and television outlets and the media house stood to lose KES 5 million (US$ 60 000) per week. The adverts were reinstated after RMS management had apologised profusely. The magazine Expression Today reported the case in a story titled ‘Move over governments, here come the corporations’.54

3

Community and other forms of broadcasting

3.1 community broadcasting
Community broadcasting is recognised as the third sector of broadcasting in Kenya besides public and private broadcasting. The sector has been growing since the first community radio station was licensed in 2004. Table 4: Community broadcasting in Kenya (geographically based)
licence holder Koch FM SIDAREC (Pumwani) Pamoja Development (Kibera) St Paul’s University (Limuru) Kenyatta University (KU) Kenya College of Comms Tech Maseno University Community Broadcasting Services SDA Baraton University Masinde Muliro University Daystar University Wajir Community Radio Mang’elete Unjiru TV Star Radio and TV Bondo CMC Shinyalu Multimedia Centre Mugambo Telecentre Konoinia Youth Group Dominion CMC station Koch FM Ghetto FM Pamoja 99.9 FM Light FM KU 99.9 FM MMUK Equator FM Radio Mambo 91.7 FM Baraton University MMUST FM 103.1 Shine FM Wajir Radio Radio Mang’elete UTV Star TV Maendeleo/ Sauti FM Shinyalu FM Mugambo Yetu Konoinia FM (yet to go on air) Mwenedu FM
55

location(s) Nairobi Nairobi Nairobi Nairobi Nairobi Nairobi Kisumu Webuye Kapsabet Kakamega Machakos Wajir Kibwezi Machakos Kisii Rarieda Kakamega Tigania Nairobi Taita

Source: Compiled from: List of assigned broadcast frequencies 2010, sponsored their establishment

the last mentioned five stations named by UNESCO Kenya which has

54 Expression Today, March 2008. 55 http://www.cck.go.ke/licensing/broadcasting/register.html.

THE BROADCASTING LANDSCAPE

39

The first community broadcaster to go on air in February 1994 – after waiting for over five years to be granted a licence – was Mang’elete Community Radio. The station was part of an East African Community Media Project coordinated by EcoNews Africa.56 It serves the semi-arid Makueni District and broadcasts in Kikamba, interspersed with Kiswahili, for 16 hours per day (06h00 to 22h00). The station was developed by the Mang’elete Community Integrated Development Project (MCIDP), which brings together 33 poor rural women groups. Originally these started out as radio listening groups for the purpose of exchanging information on nutrition, reproductive health, agriculture and other developmental issues. The idea was that the establishment of a radio station of their own would enable them to acquire more information and knowledge as well as enhance their participation. In 200757 Koch, Sidarec, Sarakasi Trust, Pamoja Development and St. Paul’s Theology University were allocated one frequency (99.9 FM) in Nairobi. They broadcast within a radius of 3km to avoid overspill. Over the past three years, licences have been issued to an additional seven stations. A unique style of ‘broadcasting’ in Kenya is the one conducted by the Migori clan in the Migori area, known as wheelbarrow station broadcasting. Because the group lacks resources to obtain equipment for a community radio station it records its programmes on cassettes in the local language Dholuo. These are played back on speakers mounted on a wheelbarrow which moves from place to place in the area where the Migori clan lives. Community radio stations serve those whose concerns rarely receive attention in other forms of media: ‘They are everything to everyone in the community.’58 The broadcasts are informative and educational and at the same time entertain. The stations also run news bulletins, news briefs and current affairs programmes, which vary in frequency from daily to weekly. Meshack Kamba points out a special feature of his Radio Mang’elete: ‘In particular we provide a forum for local artists to record and air their music.’59 As non-profit projects, these community stations depend on volunteers to do the day-to-day work. Once they have acquired enough on-the-job training and experience, these volunteers usually move on to paying posts in the private broadcasting sector. While this makes community radios a training ground for commercial radio and creates chances for people to become employed, it also means that the sector is subject to a regular turn-over of staff and the attendant loss of skills. Another challenge is the ownership structure. Ideally community radios should
56 57 58 59 EcoNews Africa, various reports, 2002–2007. Communications Commission of Kenya (CCK), Annual Report 2006/2007. EcoNews Africa, various reports, 2002–2007. Interview with Meshack Kamba, Radio Mang’elete, Nthongoni, 28 February 2008.

40

P U B L I C BROADCASTING IN AFRICA: KENYA

be governed by representatives of the communities who will sit on the station’s local management committee (LMC). In some stations this is already the case, while others are still struggling to form governance structures representative of the communities they serve. Yusuf Maleli of Mang’elete Radio,60 for example, points out that wrangles among and within the 33 women’s groups who own the station are a constant threat to the development of the station as a lot of time is spent trying to resolve or avert conflict. There are two community TV stations in Kenya: Star TV, based in Kisii, and Uunjiru TV, based in Machakos.

3.2 religious broadcasting
In addition to geographically defined community broadcasters the country has seen a proliferation of religious-based broadcasters, both radio and television. Table 5: Religious broadcasting in Kenya
station Radio Waumini Radio Akicha Biblia Husema Hope FM IQRA FM Radio Amani Jesus is Lord Radio Fish FM Radio Maria Wikwatyo 105.3 Sayare SIFA Sema FM The just liveth Radio Injili Light & Life FM Kisima FM Imani Radio location(s) Nairobi, Kitui Lodwar Nairobi, Nakuru, Eldoret, Timboroa, Machakos, Lokochokio Nairobi, Mombasa, Tomboroa Nairobi Nakuru Nakuru, Timboroa Eldoret Murang’a Kitui Eldoret, Kericho, Kisii, Kapenguria, Lotwar Garissa, Mandera, Wajir, Voi, Lamu, Lodwar, Marsabit Kericho Kericho Kericho Kericho Kisii Kapenguria

licence holder Kenya Episcopal Conference Kenya Episcopal Conference Biblia Husema Studios Christ Is The Answer Ministries IQRA Catholic Diocese of Nakuru International Children’s Mission Word of Truth Ministries Radio Maria Kenya Seventh Day Adventist Sauti ya Rehema RTV Network Transworld Radio Yepchinit FM & TV Ltd Faith Ministries & Churches Intern’l African Gospel Church Christ Co-workers Fellowship SDA Nyamira Conference International Christian Ministries

60 Interview with Yusuf Maleli, in charge of news, Radio Mang’elete, Nthongoni, 28 February 2008.

THE BROADCASTING LANDSCAPE

41
Family TV SYR TV BHB TV Hope channel (TV)
61

Future Tech Electronics Sauti Ya Rehema RTV Biblia Husema Studios Seventh Day Advenstist-EAU

Nairobi, Mombasa, Nakuru, Eldoret Eldoret, Timboroa, Rongai, Machakos Timboroa Kitui, Kisii

Source: Compiled from: List of assigned broadcast frequencies 2010

These stations are difficult to categorise. They do not qualify as community radios because they do not fulfil the requirements of access and participation by the communities they serve. At the same time, as many of them argue, they are not commercial stations since they do not make profits and survive on donations. As the table shows, in some areas such as Kericho religious radios stations seem to have almost a monopoly on the FM airwaves.

3.3 international broadcasters
Quite a number of international broadcasting services have been granted FM radio frequencies and station Al Jazeera holds a television licence. Historically these broadcasters have played an important role in balancing the propaganda broadcast by the KBC and they continue to do so. Table 6: International broadcasters in Kenya
licence holder Radio France International China Radio International British Broadcasting Corporation International Broadcasting Bureau STV Holdings station Radio France China Radio BBC World Service Voice of America Al Jazeera (TV)
62

location(s) Nairobi, Mombasa Nairobi Nairobi, Mombasa, Timboroa Nairobi Nairobi

Source: Compiled from: List of assigned broadcast frequencies 2010

4 Technical standard and accessibility of services
One of the mandates of the Kenya Broadcasting Corporation (KBC) as the supposedly public broadcaster is to provide universal access to radio and television for all citizens in the country. Kenya’s topography, however, poses challenges when it comes to setting up transmitters in remote parts of the territory. Even with high altitude areas spread
61 http://www.cck.go.ke/licensing/broadcasting/register.html. 62 Ibid.

42

P U B L I C BROADCASTING IN AFRICA: KENYA

out in various locations that are ideal for transmitter sites, some low altitude areas still remain with very poor signal reception. Multiple booster stations every few kilometres would be required to fill the gaps.63 In several cases the KBC is serving other broadcasting organisations as a common carrier by offering its masts as sites for transmitters at minimal costs. Mobile phone service providers also use this service. The private and community radio stations all broadcast on FM as do the KBC’s services Coro, Pwani FM and Metro. The KBC’s other radio stations such as the English and Kiswahili services transmit mainly on AM – which puts them at a serious disadvantage in their competition with operators in the other two sectors. Forty-three FM frequencies throughout the country have been allocated to the KBC64 but are not yet being used.

5

Concentration of media ownership

Clause 14(3) of the African Commission on Human and Peoples’ Rights’ Declaration of Principles on Freedom of Expression says:
States should adopt effective measures to avoid undue concentration of media ownership, although such measures shall not be so stringent that they inhibit the development of the media sector as a whole.

Concentration of media ownership in Kenya has in recent years become a major point of concern. The National Information and Communications (ICT) Policy issued by the ministry of information ad communicationss in January 2006, for example, said in its section 4.11:
In order to promote diversity of views and freedom of expression, concentration of ownership of print and electronic media in a few hands will be discouraged. Limits to cross-media ownership will be set through regulations to be issued from time to time and through competition laws.

63 Njoki Njeru, Technical Services KBC, interview 19 March 2008. 64 Calculated from: List of assigned TV broadcast frequencies 2010, http://www.cck.go.ke/licensing/broadcasting/ register.html.

THE BROADCASTING LANDSCAPE

43

The Kenya Communications (Broadcasting) Regulations which became law in January 2010 have now put the issue of media concentration firmly on the public agenda. The regulations say in section 10:
(1) No persons other than the public broadcaster shall be directly or indirectly, entitled to more than one broadcast frequency or channel for radio or television broadcasting in the same coverage area. Provided the Commission shall prescribe a timeframe for existing stations to comply with this requirement. (2) The shareholding of a licensee shall at all times comply with the Government’s Communications Sector Policy, as may be published from time to time.

The regulations caused an outcry. Media lawyer Paul Muite, for example, is quoted as saying in January 2010 they ‘were aimed at giving the government a hand in media control’ and warning that their effects ‘would be disastrous for democracy’.65 On the other hand, critics of cross-media ownership and media concentration have long pointed out the dangers of too much clout being held by just a few players. They cite the hypothetical example of a certain media organisation with different media outlets making a concerted effort to propagate a certain idea and, with their combined muscle, being able not just to influence public opinion but to sway it the way they wish. Patrick Ochieng of the Ujamaa Centre in Mombasa says that ‘audiences might only have one side of a story and therefore lack the full range of information required for them to make a reasoned argument or judgement’.66 If implemented the regulations would indeed lead to dramatic changes in the media landscape, given the current high degree of concentration. Nation Media Group (NMG), for example, owns several newspapers, two television stations and two radio services. The Standard Group Limited (SLG) owns The Standard newspaper, the Kenyan Television Network (KTN) and Radio Maisha. Royal Media Services (RMS) runs 12 radio services and Citizen Television. The Radio Africa Group owns four radio stations (Kiss FM, Classic FM, East FM and Radio Holdings International), two television stations (Kiss TV and Classic TV) as well as a daily newspaper, The Nairobi Star. TV Africa Holdings now owns Stellavision, K24 TV, Kameme FM, and the People Daily. Presently there is no time frame in place for existing stations to comply with the requirements of the regulations.

65 ‘Muite speaks against new media laws’, Capitalfm News, 10 January 2010, http://www.capitalfm.co.ke/news/ Kenyanews/Muite-speaks-against-new-media-laws.html. 66 Interview with Patrick Ochieng, 10 April 2008.

44

P U B L I C BROADCASTING IN AFRICA: KENYA

6 Conclusions and recommendations
The African Commission on Human and Peoples’ Rights’ Declaration of Principles on Freedom of Expression says in its clause 5:
1) States shall encourage a diverse, independent private broadcasting sector. A State monopoly over broadcasting is not compatible with the right to freedom of expression. 2) The broadcast regulatory system shall encourage private and community broadcasting in accordance with the following principles: • there shall be equitable allocation of frequencies between private broadcasting uses, both commercial and community … • community broadcasting shall be promoted given its potential to broaden access by poor and rural communities to the airwaves.

The development of both the commercial and the community broadcasting sector in Kenya over recent years has been impressive although the granting of licences has happened in ad hoc and opaque manner (further analysis in chapter 5). The clearly dominant sector, though, is commercial broadcasting. Private radio and television stations are owned and controlled by powerful media organisations and business persons many of whom are also active in print media. Most commercial stations provide similar content, mainly entertainment programmes which attract advertisers. Concentration of ownership in the broadcasting industry as well as cross-media ownership endanger media diversity as postulated by the Declaration on Freedom of Expression whose clause 3 assigns governments an important role in this regard:
Freedom of expression imposes an obligation on the authorities to take positive measures to promote diversity, which include[s] … availability and promotion of a range of information and ideas to the public.

Community broadcasting is now recognised as a third sector of broadcasting but is not actively promoted by the state in any way. The proliferation of religious-based radio stations is a point of concern, especially in regions where they seem to be the only easily accessible source of information.

THE BROADCASTING LANDSCAPE

45

recommendations
• A policy on media concentration needs to be developed and existing legislation amended (see chapter 5) with the objective to avoid or reduce overconcentration of ownership in the media. Such a policy should recognise the realities on the ground and introduce anti-monopoly measures in a way which does not endanger the economic viability of the present media houses while at the same time creating greater diversity of ownership. • Opportunities should be explored for promoting the establishment of commercial radio stations whose programming is oriented towards more diverse broadcasting and services in languages other than English. Existing commercial radio and television stations should be encouraged to offer more public service content. • The creation of a media development agency should be considered. Such a body would promote community broadcasting and other small local media and be funded by contributions from the media industry and government. • The Kenya Broadcasting Corporation should invest in the expansion of its FM transmitter network to utilise all the frequencies allocated to it as soon as possible.

4
Digitalisation and its Impact

The International Telecommunications Union (ITU), a United Nations agency tasked with coordinating global telecommunications and services, has set a deadline of 17 June 2015 for broadcasters in Europe, Africa, the Middle East and the Islamic Republic of Iran to migrate to digital television broadcasting technology, on both the transmission and the reception side. Deadlines for the digitalisation of radio have not yet been determined. The ITU sees the digitalisation of broadcasting as a means of establishing a more equitable, just and people-centred information society, leapfrogging ‘existing technologies to connect the unconnected in underserved and remote communities and close the digital divide’.67 The switch-over from analogue to digital broadcasting will expand the potential for a greater convergence of services, with digital terrestrial broadcasting supporting mobile reception of video, internet and multimedia data. Digitalisation of television is seen as a means of enhancing the viewer’s experience by enabling better quality viewing through wide-screen, high definition pictures and surround sound, as well as interactive services. It also allows for innovations such as handheld TV broadcasting devices (Digital Video Broadcasting–Handheld, or DVB-H), and will mean greater bandwidth for telecommunication services.68 Importantly, it will also allow for the creation of many more television channels through greater spectrum efficiency.

67 ‘Digital broadcasting set to transform the communication landscape by 2015’, June 2006, http://www.itu.int/ newsroom/press_releases/2006/11.html. 68 Ibid.

DIGITALISATION AND ITS IMPACT

47

1

Preparedness for switch-over within government and the industry

The government of Kenya aims to complete the process of migration from analogue to digital television broadcasting by 2012 and has set 1 July 2012 as the switch-off date for analogue broadcasting – three years before the deadline set by the ITU. In 2007, the Communications Commission of Kenya (CCK) stopped assigning television frequencies in order to prepare the country for digital broadcasting.69 In the same year the government established the Task Force on the Migration from Analogue to Digital Broadcasting composed of broadcasting experts and representatives from the information and communications ministry, National Communications Secretariat, Communications Commission of Kenya, Media Owners Association, Kenya Broadcasting Corporation, Media Council of Kenya and Association of Practitioners in Advertising (APA). Within six months the task force developed a comprehensive report70 which, among other things, recommended the establishment of a common transmission platform for all broadcasting services to optimise available resources. The report proposed that the Kenya Broadcasting Corporation (KBC) be licensed as a signal distributor and that KBC should form a separate company for the purpose of signal distribution. The reason given was that a government entity like the KBC would focus mainly on free-toair services while a private entity was more likely to give preference to pay-TV and leave out millions of ordinary Kenyans who cannot afford a subscription fee. In addition, the report proposed, interested investors, including current broadcasters, could also be licensed to offer signal distribution services. Following these recommendations government decided that the KBC would establish a subsidiary known as SIGNET to carry out the broadcast signal distribution mandate.71 Currently, a public-private partnership arrangement is being worked out whereby private sector investor(s) will eventually partner with SIGNET in order to inject the capital needed to fast-track the digital infrastructure roll-out. The mandate of SIGNET includes taking over the functions previously carried out by individual broadcasters. For test purposes broadcasters who are members of the Media Owners Association (MOA) have been providing the KBC with their output. On 6 December 2010, however, the MOA suspended its cooperation and accused the KBC of making their content available to foreign broadcasters, who in turn charge audiences for their services.72 The MOA also accused the KBC and the government of
69 Kenya’s Economic Survey 2008, p. 233. 70 Policy and Regulatory Considerations in the Transition to Digital Broadcasting, Report of the Task Force on Migration from Analogue to Digital Broadcasting in Kenya, September 2007. 71 Email communication with Rosemary Mwangi, Digital Migration Secretariat, 7 December 2010. 72 MOA press conference, 6 December 2010, Nairobi.

48

P U B L I C BROADCASTING IN AFRICA: KENYA

not acting in a transparent manner and called on government to disclose its policy on digital migration. The report of the task force further recommended that in order to reduce the cost of migration, the existing transmitting sites and infrastructure be used for digital transmission. The laying of large capacity fibre optic cables is necessary in order to connect these sites.73 Another task force recommendation was that the government, in consultation with the Communications Commission of Kenya (CCK), should establish a Digital Migration Secretariat to manage the migration process within a specified timetable and develop an appropriate switch-over strategy. According to this secretariat, no research has yet been conducted to assess the preparedness of the broadcasting industry for the switch-over.74 It can be assumed, however, that most existing broadcasters already have state-of-the-art digital TV studios and that only transmission is analogue. KBC’s production studios use integrated technology (both digital and analogue).

2

Preparedness for switch-over on the part of consumers

Most consumers in Kenya do not know the difference between analogue and digital broadcasting. They will have access to a range of new services and will be faced with new costs and the pressure to change quickly to services they may not be familiar with. The Task Force on Migration from Analogue to Digital Broadcasting in Kenya anticipated this scenario and proposed that in the migration process the government should give priority to the concerns of consumers who are likely to be the most affected. The task force underscored that the decisions of consumers will affect the success of the migration, and therefore recommended that the government institute measures to ensure availability of set-top boxes and digital transmission countrywide at the time of the switch-over. The task force further recommended that a campaign be conducted to inform consumers on the need for and the benefits of the migration. This consumer education process should include the difference between analogue and digital services, set-top boxes, the period of migration, switch-over dates, policy issues, financial implications, quality of service and reception problems. Following this recommendation, the Digital Migration Committee has on several occasions placed paid advertisements in the local
73 Interview with Dr Bitange Ndemo, permanent secretary in the ministry of information and communication, 21 February 2008. 74 R. Mwangi, op.cit.

DIGITALISATION AND ITS IMPACT

49

daily newspapers, explaining digital migration in a question and answer format.75 What is not clear though is whether ordinary citizens have engaged with such information and whether these adverts have contributed to their understanding. Consumers are mainly concerned about the financial implications of the switchover: how much the necessary equipment will cost and whether the cost will be within their purchasing power. The task force recommended that the Kenya Bureau of Standards and the CCK define the  minimum standards for set-top boxes to be used in Kenya. This is a measure to ensure that the market is not flooded with low quality equipment but subject to some form of quality control. The KBC has appointed agents to sell set-top boxes. These boxes have been retailing for KES 7 00076 (US$ 85). The sale of the set-top boxes, however, got off to a rocky start. Kenya introduced Digital Video Broadcasting-Terrestrial (DVP-T) in December 2009. This was seen as the easier and cheaper option compared to the much more modern and higher quality HDTV.77 A year later, however, the government decided to go for the more advanced DVB-T2 version, which has far more improved features to transmit the signals. Importation of DVP-T set-top boxes was stopped and 30 000 viewers in Nairobi, who had already bought these boxes, now have to buy the newer, more advanced version which is compatible with the DVB-T2 standard.78 The process could be further complicated by the call of the minister of information and communications in December 2009 to explore the possibility of manufacturing and assembling set-top boxes in the country. The University of Nairobi’s engineering department is said to have embarked on producing affordable set-top boxes. However, information on this initiative is still scarce. To keep the price for set-top boxes at an affordable level, government has agreed to a request by the ministry of information and communications to grant a tax waiver for the devices. For the 50 per cent of Kenyans classified as ‘deprived’ by the UNDP’s Human Development Index the current price of KES 7 000 (US$ 85) for a set-top box seems unaffordable. Presently, however, there is no indication that the government might consider a subsidy scheme beyond the above measures to help ensure that the poor have access to television in the digital age.

75 76 77 78

‘What Kenyans need to know about migration to digital TV broadcasting’, Digital Kenya Secretariat. Interview with Elizabeth Okodo, a sales agent, 19 December 2009. ‘Kenya Welcomes Digital TV’, Kenya Today, 12–20 December 2009. ‘Sale of TV set top boxes halted to allow new version’, Business Daily, 2 December 2010.

50

P U B L I C BROADCASTING IN AFRICA: KENYA

3

Increased competition

The possible effects that digital television and the potential availability of more channels may have on competition in a market that is presently characterised by concentration of ownership are still open to conjecture, according to media academic Joyce Mwaura:
In a country like Kenya where there are problems around access for new operators and competitors, and a high concentration of media control in a small number of hands, digitisation could open up space for a wider diversity of voices and images. But it could also lead to the opposite.79

Patrick Ochieng of Ujamaa Multi-Media Centre in Mombasa thinks digitalisation is likely to result in the consolidation of big multi-media organisations that control chains of production and distribution.80 His fear is that a single powerful organisation with a large number of channels at its disposal will be able to control information and shape opinion. Rosemary Mwangi of the Digital Migration Secretariat points out that the licensing process will ensure that all tiers of broadcasting categories are given consideration (public, commercial and community). The secretariat expects competition to set in and content to be key in future: ‘We therefore foresee a situation where the determining factor will be the quality of content. Broadcasters will have to be keen on what content they air with the objective of retaining their audience.’81 She does not exclude mergers, though, because some broadcasters may not have or be able to produce sufficient content. However, Ms Mwangi says, legislation and licence conditions will adequately address any anti-competitive behaviour that may emerge. Fees will be structured in such a way that different licence categories are charged differently. Esther Kamweru, former director of the Media Council of Kenya and a member of the task force on digital migration, says that digitalisation opens up an opportunity to ‘rectify the errors’ in the current system. In her opinion there is need for increased competition and the production of more local content. This, in turn, will create more employment opportunities and help to develop different sectors of the cultural industries.82

79 80 81 82

Interview with Joyce Mwaura, Kenya Institute of Mass Communication Radio, Nairobi, 10 April 2008. Interview with Patrick Ochieng, 10 April 2008. Email communication with Rosemary Mwangi, Digital Migration Secretariat, 7 December 2010. Interview with Esther Kamweru, director, Media Council of Kenya, Nairobi, 30 January 2008.

DIGITALISATION AND ITS IMPACT

51

4 Conclusions and recommendations
The deadline of 1 July 2012 for the switch-over from analogue to digital broadcasting which the government set itself seems very tight, given the fact that digital migration will require capital investment both at national and individual broadcaster level as well as new legislation and regulation for the licensing of television operators. Policies on the set-top boxes necessary to enable reception of digital television signals still seem unclear, with no decision on tax incentives for the cheaper sale of such devices having been made and no visible consideration being given to a subsidy scheme to ensure that the poor will also continue to have access to television in the digital age. The process of developing legislation for a new Independent Communications Commission of Kenya began in early 2011. After its establishment this commission will have to work on further draft legislation or regulations for licensing procedures in the new technological environment. This is a lengthy process which has to be completed well before the switch-over date. The likely impact of the digitalisation of the television market has not been thoroughly assessed.

recommendations
• Government should be urged to: – Develop a clear roadmap towards the deadline of 1 July 2012 in consultation with all stakeholders – broadcasters, signal distributors and consumers in particular. If this deadline is too tight, a new, more realistic date should be set as soon as possible to make rational planning possible. – Step up public awareness for the digital migration process, targeting the general public, media practitioners and other professionals. – Embark on a consumer awareness programme to warn the public against purchasing soon to be obsolete analogue television sets. – Develop a suitable subsidy scheme for set-top boxes (STBs) to avoid the risk of vulnerable communities being permanently switched off due to the unaffordability of such devices. Set suitable specifications for imported STBs. In addition government should waive import duties on them.

52

P U B L I C BROADCASTING IN AFRICA: KENYA

Devise measures to ensure that importers offer television sets that are digital, ready to receive signals without STBs, to prevent people from investing unnecessarily in equipment that will soon be obsolete. – Ensure protection for vulnerable media such as community television stations when setting fees payable to the signal distributor. – Consider zero-rating tax on digital broadcasting equipment to enable broadcasting houses to purchase more digital equipment. This facility could be granted for a limited period. • The media industry and other stakeholders should prepare themselves for the development of a new licensing regime for television and develop suitable models. • The new Independent Communications Commission of Kenya, once established, should organise a round table with all stakeholders – broadcasters, signal distributors and consumers – to discuss a framework for a new licensing regime for television in the digital age.

5
Broadcasting Legislation and Regulation

1

The Communications Commission of Kenya

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 finalised 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

P U B L I C 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 defined 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 finance 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 officers, 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 qualified person or person, organisation or group of persons proposing the nomination of any qualified person’. The Public Service Commission will then ‘consider the applications, interview and shortlist at least two persons qualified 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

P U B L I C 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 qualifications, expertise and experience in the fields of, amongst others, broadcasting, telecommunications , law, media, and economics, or any other related expertise or qualifications.

Section 6(1) disqualifies 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 official; (d) is an office-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 financial interest in the sector; (f) or his or her business partner or associate holds an office 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 finally selecting the commissioners without any requirement for transparency. • The Bill in its list of disqualifications 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 financed mainly from levies paid by licensees and ‘monies as may be provided by Parliament for that purpose’.

2

Licensing of broadcasters and enforcement of licence conditions

The Kenya Communications (Amendment) Act of 2008 in its section 46B(1) names three categories of broadcasting: public, private and community. According to section 46D of the Act political parties are not eligible for the granting of a broadcasting licence.

58

P U B L I C BROADCASTING IN AFRICA: KENYA

2.1 Public broadcasting
‘Public broadcaster’ is defined as meaning the Kenya Broadcasting Corporation established by the KBC Act, and section 46E of the Act ‘designates’ the KBC as ‘the public broadcaster’ that ‘shall provide public broadcasting services’.

2.2 Private broadcasting
‘Private broadcaster’ means ‘a person licensed by the Communications Commission under this act to provide commercial broadcast services’. Section 46G of the Act states that licences for private broadcasters
may include conditions requiring the private broadcaster to— (a) provide coverage in such areas as may be specified by the Commission; (b) in the case of television, include drama, documentaries and children’s programmes that reflect Kenyan themes.

The Kenya Communications (Broadcasting) Regulations 2009, issued by the minister for information and communications, go into more detail and state in section 12 that a commercial free-to-air broadcaster is to
(b) provide a diverse range of programming that reflects the identity, needs and aspirations of people in its broadcasting area; (c) where the commercial broadcaster provides national coverage, be required … to provide programming that reflects the identity and needs of the people of Kenya; … (e) not acquire exclusive rights for the non-commercial broadcast of national events identified to be of public interest as may be determined by the Commission from time to time.

2.3 community broadcasting
According to the act ‘community broadcasting service’
means a broadcasting service which meets all the following requirements— (a) is fully controlled by a non-profit entity and carried on for nonprofitable purposes;

BROADCASTING LEGISLATION AND REGULATION

59

(b) serves a particular community; (c) encourages members of the community served by it or persons associated with or promoting the interests of such community to participate in the selection and provision of programmes to be broadcast in the course of such broadcasting service; and (d) may be funded by donations, grants, sponsorships or membership fees, or by any combination of the aforementioned.

‘Sponsorships’ as one source of funding is not specifically defined in the Act and is commonly understood to mean financial support for certain programme slots. The provision does not seem to include the possibility for community broadcasters to finance themselves also through advertisements, often an important source of income for this sector. The Broadcasting Regulations in their section 13(1), however, instruct the CCK to ‘allow community broadcasting licensees to advertise, on their stations, adverts that are relevant and specific to that community within the broadcast area’. This means that the local butcher or food store may advertise but not, for example, a mobile phone provider. The Regulations further state in section 13(3) and (4) that:
(3) A community broadcaster shall ensure all the funds generated from the operations of a community broadcasting station are reinvested in activities benefiting the Community. (4) The Commission shall monitor community broadcasters to ensure that the funds generated from operations of a community broadcasting station are re-invested in activities benefiting the community.

The language here is not clear and the precise meaning of the provision therefore open to interpretation. Usually a community broadcaster will use the funds generated firstly for covering its running costs and programming. Only a profit (if any) could be ploughed back into the community. ‘Community’ is defined as ‘a geographically founded community or any group of persons or sector of the public having a specific, ascertainable common interest’. This definition would include religion-based broadcasting stations. It is doubtful, however, whether many of the existing religious stations allow for any meaningful participation of members of their community in the ‘selection and provision of programmes to be broadcast’ or whether they do indeed re-invest their profits (if there are any) into their communities.

60

P U B L I C BROADCASTING IN AFRICA: KENYA

Before granting a licence to a community broadcaster, the CCK has to consider whether all the requirements listed above are fulfilled. According to section 46F of the Communications Act it can also set a number of licence conditions for this sector:
A licence granted under this section may contain conditions requiring the licensee to— (a) ensure that a cross section of the community is represented in the management of the broadcasting service; (b) ensure that each member of the community has a reasonable chance to serve in the management of the broadcasting service; (c) ensure that members of the community have a way of making their preferences known in the selection and provision of programmes; (d) conform to any conditions or guidelines as the Commission may require or issue with regard to such broadcasting service.

These conditions are in line with best practices but it is doubtful whether all existing community broadcasters – and religious stations in particular – fulfill all these conditions, especially in regard to the participation of the community in management and programming. The Broadcasting Regulations in section 13 say in regard to content:
A Community broadcaster shall— (a) reflect the needs of the people in the community including cultural, religious, language and demographic needs; (b) deal specifically with community issues which are not normally dealt with by other broadcasting services covering the same area; and (c) be informational, educational and entertaining in nature; (d) provide a distinct broadcasting service that highlights community issues.

2.4 licence conditions for all broadcasters
Section 46H of the Broadcasting Act gives the Commission the power to set ‘standards for the time and manner of programmes to be broadcast by licensees’. To this end, the CCK shall:
(a) prescribe a programming code; (b) review the programming code at least once every two years; (c) prescribe a watershed period programming [sic] when large numbers of

BROADCASTING LEGISLATION AND REGULATION

61

children are likely to be watching programmes; and (d) ensure compliance with the programming code prescribed under this section.

The same section also opens the door for voluntary self-regulation of the broadcasting industry by saying that
the programming code … shall not apply where a licensee is a member of a body which has proved to the satisfaction of the Commission that its members subscribe and adhere to a programming code enforced by that body by means of its own mechanisms and provided further that such programming code and mechanisms have been filed with and accepted by the Commission.

The power of the CCK to prescribe a programme code was heavily opposed by media groups and subsequently the Act was amended by adding a section 46S to establish a Broadcasting Content and Advisory Council with these functions:
(a) (i) administration of [the] broadcasting content aspect[s] and the provisions of the Act, (ii) the mechanisms for handling complaints under the Act, (b) monitor compliance with broadcasting codes and ethics for broadcasters, and (c) have such other functions and powers as the Board may determine.

The Council consists of: • The permanent secretary in the ministry of information and communications and six other members appointed by the minister: – two members nominated by the Commission (one of whom is recommended by the Inter-Religious Forum); – one member appointed by the Media Council of Kenya and another by the Media Owners Association; – one member nominated by the Law Society of Kenya, and – one member, who cannot be a civil servant, nominated by the attorney-general. Out of the seven members of this Council only two are nominated by non-state bodies. Section 46(1) provides a list of standards to be adhered to by all broadcasters:

62

P U B L I C BROADCASTING IN AFRICA: KENYA

All licensed broadcasters shall— (a) provide responsible and responsive programming that caters for the varied needs and susceptibilities of different sections of the Kenyan community; (b) ensure that Kenyan identity is developed and maintained in programmes; (c) observe standards of good taste and decency; (d) gather and present news and information accurately and impartially; (e) when controversial or contentious issues of public interest are discussed, make reasonable efforts to present alternative points of view, either in the same programme or in other programmes within the period of current interest; (f) respect the right to privacy of individuals; (…) (i) ensure that advertisements, either in terms of content, tone or treatment, are not deceptive or are not repugnant to good taste; (j) ensure that derogatory remarks based on ethnicity, race, creed, colour and sex are not broadcast.

The Broadcasting Regulations, in their sections 19 to 36, go into much more detail with regard to broadcasting content. Section 24, for example, deals with ‘reporting on controversial issues’ and says in sub-section (b):
… a person or organisation whose views on any controversial issues of public interest have been criticised during a broadcast, and who wishes to reply to such criticism is given an opportunity by the licensee to reply to such criticism within a reasonable time.

Such a broadly framed provision could discourage broadcasters from engaging in frank criticism of politicians and other influential members of society, for example, given the expectation of a constant flood of replies which would have to be broadcast regardless of their validity. Section 35 gives the CCK the power to ‘require a licensee to commit the minimum amount of time, as may be specified in the licence, to broadcast of local content or as may be prescribed from time to time by the Commission by notice in the gazette’. If a broadcaster is unable to comply with such local content quota, ‘the Commission shall require such broadcaster to pay such an amount of money, as may be prescribed by the Commission into the Fund’ – this presumably being the Universal Service Fund provided for by the 2008 Broadcasting Act in its section 84J, but not defined anywhere in the Regulations.

BROADCASTING LEGISLATION AND REGULATION

63

2.5 licensing procedure and enforcement of conditions
The Broadcasting Regulations say in section 6(1)(c) that the Communications Commission shall ‘develop a frequency plan which sets out how the frequencies available for broadcasting services in Kenya will be shared equitably and in the public interest among various tiers of broadcasting’. Section 13(2) specifically states that the ‘Commission shall, through the frequency plan, ensure that an equitable number of frequencies or channels are reserved for community broadcasting’. The Commission has to ‘provide information relating to the availability of broadcasting frequencies, the application requirements and the selection criteria for issuance of a licence’ (section 3[2]), and to publish applications received for broadcasting licences in the Gazette and invite the public to comment before it issues a licence’ (subsection [5]). It is not clear whether these requirements have ever been followed. A person applying for a commercial broadcasting licence has to comply with section 4(1) of the Regulations and submit a business plan including:
(a) evidence of technical capacity in terms of personnel and equipment to carry out the broadcasting services; (b) evidence of relevant experience and expertise to carry out the broadcasting services; (c) evidence of the capacity to offer broadcasting services for at least eight continuous hours in a day; (d) programme line-up or schedule for the broadcasting services [for] which the licence is sought …

Section 5(1) outlines the requirements for an application by a community broadcaster:
(a) information on the service for which the community broadcasting licence is sought …; (b) the minutes of the meeting where it was resolved to establish a community broadcasting station; (c) proof of the sources of funding and sustainability mechanisms; (d) weekly programme schedules for the broadcasting services [for] which the licence is sought …

Sub-clause (c) could result in a community radio initiative needing start-up funding from a donor, for example, being caught in a vicious circle. Donor organisations often want to be sure that a licence has been granted before considering support for the initiative while the applicants may not get such a licence without proof of assistance.

64

P U B L I C BROADCASTING IN AFRICA: KENYA

Section 10 deals with ‘ownership and control’ and stipulates that ‘no persons other than the public broadcaster shall be directly or indirectly entitled to more than one broadcast frequency or channel for radio or television broadcasting in the same coverage area’. (For discussion of this clause see chapter 3.5) The Regulations do not determine the duration of licences for the various sectors of broadcasting services. If a licensee ‘fails to use the assigned broadcasting frequencies within one year after assignment by the Commission’, the Commission ‘may’ revoke the licence (section 46J[c] of the Act). The Regulations tighten this provision by saying in section 3(7) that the Commission ‘shall’ revoke a licence if a licensee does ‘not establish the necessary broadcasting infrastructure’ within 12 months. While the imposition of such strict time lines makes sense in view of the scarcity of FM frequencies in certain cities and towns, it may be hindering the development of community radios in rural areas. In 2006, for example, the CCK licensed a community radio broadcaster in northern Kenya intended to cover four small towns. The initiative was ill resourced, the  target communities  in the region are very poor and have little knowledge of fund raising. The group thus relied on donors and other well-wishers to provide start-up funds. However, these did not materialise and one year later the CCK repossessed the frequency. In 2010 Marsabit, one of the locations in question, was still covered by two FM stations only, Radio Citizen and Transworld Radio, with four frequencies allocated to the KBC not utilised, and Moyale, another of the intended target communities, has no FM reception at all (three frequencies have been granted to the KBC but remain unused). Section 46J of the Act empowers the CCK to revoke a licence where the licensee ‘(a) is in breach of the provisions of the Act or regulations made thereunder; (b) is in breach of the conditions of a broadcasting licence’. This could mean that a broadcaster who breaches the Programme Code, for example, could lose its licence without any prior warning or request from the CCK to take remedial steps before the ultimate punishment of closing down the station is handed down. Overall, the Regulations in section 44 impose severe sanctions for contraventions of any kind:
Any person who contravenes any provision of these Regulations commits an offence and is liable on conviction to a fine not exceeding one million shillings [US$ 12 500] or to imprisonment for a term not exceeding three years, or both.

BROADCASTING LEGISLATION AND REGULATION

65

3

Complaints and conflict resolution

The Kenya Communications (Amendment) Act 2008 says in its section 46L:
All broadcasters shall establish and maintain a procedure, by which persons aggrieved by any broadcast or who challenge that a broadcaster is not complying with this Act, may file complaints.

The procedure must be approved by the CCK. The Regulations stipulate in section 39(3)(a) that ‘the first opportunity to resolve a complaint should be given to the broadcaster’. Section 40(1)(b) says that ‘broadcasters must inform their listeners or viewers at least once a day of the existence of a complaints handling procedure and how they can lodge a complaint regarding the broadcast station’. If a listener or a viewer is not content with the handling of a complaint by the broadcaster he/she can appeal to the Commission. If the outcome of that appeal is still not satisfactory, the matter can be taken before a court of law (section 46L of the Act). In addition to complaints brought by listeners and viewers, the Regulations in section 42(1) also stipulate that ‘the Commission may, on its own motion, investigate a matter where in its view a broadcaster has breached the provisions of the Act, Regulations or the Programme Code’.

4 Conclusions and recommendations
The 2010 Constitution in its article 34(3) provides for broadcasting regulation which is ‘independent of control by government, political interests or commercial interests’. The broadcasting regulator is the Communications Commission of Kenya (CCK) set up under the Kenya Communications Act of 1998, amended by the Kenya Communications (Amendment) Act of 2008. Both these pieces of legislation do not comply with the precepts of the new constitution, in particular with regard to the appointment procedures for the board of directors. An Independent Communications Commission of Kenya Bill (2010) seeks to guarantee the CCK’s independence but still falls short in a number of respects. The appointment process for commissioners is not sufficiently ‘open and transparent’ and could still be controlled by a political party – which is in breach of the Kenyan constitution and clause VII of the African Commission on Human and Peoples’ Rights’ Declaration of Principles on Freedom of Expression in Africa.

66

P U B L I C BROADCASTING IN AFRICA: KENYA

The Kenya Communications (Amendment) Act and the Kenya Communications (Broadcasting) Regulations (2009) issued by the minister for information and communications recognise the three-tier-system of broadcasting: public, private and community. Both documents state that frequencies available must be shared equitably and in the public interest among the various tiers and that an equitable number of frequencies or channels are to be reserved for community broadcasting. The current practice of assigning frequencies does not seem to conform with these prescribed objectives. Most of the provisions in these pieces of legislation follow best practices, but there are some sections which raise questions: • It is doubtful whether all existing community broadcasters, and religious stations in particular, fulfill all conditions set by law, especially with regard to the participation of the community in management and programming. • The possibility for community broadcasters to secure financial sustainability is limited by a narrow definition of advertising. • The Act provides for a programme code but also allows for voluntary selfregulation of the broadcasting industry by exempting those broadcasters that are members of a body which enforces its own code. The regulations, on the other hand, prescribe in detail standards for broadcasting content which must be adhered to by all. A Broadcasting Content and Advisory Council established by an amendment to the Communications Act tasked with the administration of the programme code is controlled by state appointees. • If a broadcaster is in breach of the Act or the Regulations, including the prescribed standards, the organisation – simply and summarily – stands to lose its licence and has to close shop. There is no requirement for the CCK to issue a warning or ask for remedial steps to be taken before issuing the ultimate penalty. In addition, breaches of the Act or the Regulations can be punished with a fine or imprisonment of up to three years. • While the Act and Regulations go into considerable detail in terms of licence conditions and their enforcement, there is no reference to the duration of licences for the various sectors of broadcasting services. • The Regulations set strict limits for ownership and control of private broadcasting services: no-one is to be entitled to more than one frequency or channel for radio or television broadcasting in the same coverage area. If indeed enforced, such a limitation is likely to endanger the economic viability of existing media houses. The Regulations are silent, though, on crossownership between print and broadcast media.

BROADCASTING LEGISLATION AND REGULATION

67

• Mention is made of the fact that requirements for local content may be included in licence conditions, but the CCK is not enjoined to develop a general local content policy which would specify quota applicable to the various broadcasting sectors.

recommendations
Regulatory autonomy and independence • The new Independent Communications Commission of Kenya (ICCK) as envisaged by the Independent Communications Commission of Kenya Bill (2010) should be enabled to live up to its title: it must be a truly autonomous and independent regulatory body which reports to Parliament and not to the minister responsible for information. • The Commission should be representative of Kenya’s diversity with regard to, among others, profession, gender, ethnicity and faith. • The appointment procedure for members of the Commission should be open and transparent, involve the effective participation of civil society/nonstate actors, and should not be controlled by any particular political party. The appointments body should invite the public through advertisements to nominate candidates, and publish the full list of persons nominated as well as the short-list of candidates to be interviewed in public. • The Public Service Commission should not have a role in appointing members of the ICCK. • The security of tenure of members should be guaranteed to limit the influence of political authorities on their decisions. Media concentration • The Commission should urgently embark on a thorough enquiry into media concentration, including cross-media ownership, in Kenya. The enquiry should take the form of public hearings including all stakeholders and interested civil society groups/non-state actors. The policy to be drawn up on the basis of this enquiry should promote effective competition while at the same time recognising realities on the ground. Anti-monopoly measures should be carefully crafted so as not to endanger the economic viability of existing media houses nor serve to maintain the current monopolistic ownership, but to create and encourage greater diversity of ownership.

68

P U B L I C BROADCASTING IN AFRICA: KENYA

Licensing issues • The Commission should review its Frequency and Channel Plan to make sure that frequencies are indeed shared equitably between the various sectors of broadcasting. This plan must be made available to the general public. The allocation of platforms for digital television must follow the same principle. • The Commission should set realistic and reliable broadcast licensing periods designed to allow for longer-term planning and encourage investors in the broadcast industry who may be wary of committing themselves while facing the risk of political interference in frequent renewals. • The Commission should publish information on the availability of broadcasting frequencies regularly. Applications for frequencies should similarly be made public and any interested person be invited to comment. • The Broadcasting Regulations must be reviewed. It is not up to the responsible minister to make such detailed prescriptions for the sector. Regulatory provisions like these should either be made by law or issued by the Commission. A review of the Regulations needs to address specifically: – their detailed provisions on a programme code and professional standards – these matters should be the responsibility of the broadcast media themselves; – the limitation on revenue sources for community broadcasting which endangers their financial sustainability. • The Commission should – after extensive public consultations – draw up a table of local content quota for the various sectors of broadcasting. • The broadcasting industry should call for the amendment of provisions in the Broadcasting Act establishing the Broadcasting Content and Advisory Council to accommodate effective participation of civil society/non-state actors with the objective to set up an independent body.

6
The Kenya Broadcasting Corporation: Overview

1

Legislation

The Kenya Broadcasting Corporation (KBC) is the largest broadcasting organisation in the country and wholly owned by the state. The KBC is governed by the Kenya Broadcasting Corporation Act 1989 (as amended on several occasions, the last time in 2009). The preamble of the Act states clearly that the KBC is established
to assume the Government functions of producing and broadcasting programmes or parts of programmes by sound or television.

In line with this definition of the broadcaster’s function the board of directors is appointed by government or consists of government officials as stipulated in section 4(1) of the Act:
There shall be a Board of Directors of the Corporation which shall consist of— (a) a chairman of the Board appointed by the President; (b) the managing director of the Corporation; (c) the Permanent Secretary in the Ministry for the time being responsible for information and broadcasting; (d) the Permanent Secretary in the Office of the President; (e) the Permanent Secretary in the Ministry for the time being being responsible for finance; (f) not more than seven members appointed by the Minister, not being employees

70

P U B L I C BROADCASTING IN AFRICA: KENYA

of the Corporation, of whom not more than three shall be public officers and of whom— (i) at least one shall have specialization or experience in matters connected with radiocommunication and radiocommunication apparatus; (ii) at least one shall have specialization or experience in radio or television programme production; (iii) at least one shall have specialization or experience in the print media; (iv) at least one shall have specialization or experience in financial management and administration.

According to section 5(1) the managing director is also appointed by the minister for information and communication and thus answerable to the minister rather than the board. This undermines the board’s authority over the managing director and largely ensures that the minister’s vision and wishes are implemented. The role of government is further strengthened by the right of the minister under section 53 to ‘make regulations for the better carrying into effect’ of the Act after consultation with the board. Section 16(1) empowers the government to second ‘public officers’ to the KBC who ‘shall’ be employed by the corporation. Notwithstanding its character, prescribed by law, as a government-controlled entity, the KBC shall – according to section 8(1) of the Act:
(a) provide independent and impartial broadcasting services of information, education and entertainment, in English and Kiswahili and in such other languages as the Corporation may decide; … (f) conduct the broadcasting services with impartial attention to the interests and susceptibilities of the different communities in Kenya; … (j) keep a fair balance in all respects in the allocation of broadcasting hours as between different political viewpoints.

The Broadcasting Regulations 2009 in section 11(1) repeat sub-clauses (a) and (f) almost word for word:
A Public Broadcaster [defined as the KBC] shall— (a) provide independent and impartial broadcasting services of information, education and entertainment in English and Kiswahili and such other languages as the broadcaster may decide; (b) conduct the broadcasting services impartially and consider to the interests and susceptibilities of the different communities in Kenya.

THE KENYA BROADCASTING CORPORATION: OVERVIEW

71

According to the Act, the KBC’s board is supposed to formulate policies and give strategic direction for the advancement of the Corporation. It is also charged with overseeing financial management, approve the hiring of senior managers, sign off on all projects, and give directions laying down the general standards of taste, impartiality and accuracy of the content of all programmes, including advertisements. In view of these tasks ‘the board needs to be knowledgeable, comprising people with an education and with skills in areas indicated in the KBC Act section 4(1) in order to steer KBC ahead and to greater heights’, says a former KBC insider, Hezekiel Oira.85 He points out that the requirements specified in the Act for board members to possess special skills have not always been followed: ‘KBC has even at some point had board members who had no inkling of specific tasks of the broadcaster. Many are the times when the board has had members who are retired civil servants and politicians who did not make it to Parliament.’ Board member and director of information and public communications in the ministry of information, Ezekiel Mutua, on the other hand, feels that every member of the board is appointed on the basis of specific strengths which are of benefit to the KBC.86 The board’s role, he adds, is to assist the KBC in policy formulation and day-to-day management so that the broadcaster can achieve its mandate. Mutua calls theirs a ‘hands-on’ board that is involved in the day-to-day activities of the Corporation. Board members, he says, visit transmission stations and studios and also participate in training in order to clearly understand media operations. Such a hands-on approach and involvement in the day-to-day is bound to create conflicts between board and management and goes against the principles of good corporate governance. It is also in breach of section 11(1) of the KBC Act which clearly states that ‘the control and executive management of the Corporation shall be vested in the managing director’. It is claimed that some board members have at times demanded the holding of board meetings even when there was no specified agenda. The allegation is that board meetings are seen as a source of income because the KBC pays an allowance of KES 20 000 (US$ 250) per sitting. Section 12 of the first schedule of the Act attempts in its section 12(1) to protect the Corporation against conflicts of interests by saying that if
a director is directly or indirectly interested in any contract, proposed contract, or other matter and is present at a meeting of the Board at which the contract, proposed contract or other matter is the subject of consideration, he shall, at the
85 Interview with Hezekiel Oira, at the time corporation secretary, 19 March 2008 (he left KBC in late 2010). 86 Interview with Ezekiel Mutua, KBC board member and director of information, Nairobi, 25 May 2008.

72

P U B L I C BROADCASTING IN AFRICA: KENYA

meeting and as soon as practicable after the commencement thereof, disclose the fact, and shall not take part in the consideration or discussion of, or vote on, any question with respect to the contract or other matter, or be counted in the quorum of the meeting during the consideration of the matter.

2

Profile of the KBC

The KBC’s radio and television signals cover the whole of the national territory. In the case of TV, however, some low altitude areas still have very poor reception. Improving quality would require multiple booster stations every few kilometres to fill the gaps. For radio, the transmission network uses medium wave (MW) as well as frequency modulation (FM) in major towns. The process of expansion is under way. MW plays a major role for grassroots and countrywide reach – some 95 per cent of the geographical coverage of the English Service and Idhaa (the Swahili service) is through MW. The KBC currently broadcasts in 19 different languages, including those of marginalised communities which would not ordinarily attract or make ‘economic sense’ to commercial broadcasters. It is precisely for this reason that a public broadcaster is important, says Dr Bitange Ndemo, permanent secretary in the ministry of information and communication: ‘The dynamics of entrepreneurship will simply not apply and the government is undertaking to support KBC.’87

2.1 radio
There are two national public services, each broadcasting for 19 hours a day: • KBC Idhaa ya taifa88 (Swahili service): According to the KBC’s website the station targets farmers, teachers, mechanics, carpenters and other skilled workers. In terms of age brackets, listeners between 20 and 44 years old are targeted as the primary group, while the secondary target group is 30–45 years of age.89 The station offers news, news headlines, current affairs, business news and sports, commercial programmes and lots of entertainment. Formats vary from breakfast shows featuring African music, mid-morning youth entertainment shows with light talk show elements, audience call-in

87 Interview with Dr Bitange Ndemo, permanent secretary in the ministry of information and communication, 21 February 2008. 88 Swahili term meaning national service. 89 www.kbc.co.ke.

THE KENYA BROADCASTING CORPORATION: OVERVIEW

73

and text messaging segments, lunch-time music presentations, afternoon salaams 90 shows, agricultural programmes, programmes highlighting traditional values and outside broadcasts. According to Idhaa head, Sophie Kilei, the station is ‘issue oriented’ with ‘free style chat show programming throughout the day’. The key idea is ‘to provide listeners with necessary information without overdoing it’.91 • KBC English Service: The KBC gives a very specific list of its target audiences for this service: ‘fully qualified professionals, managers, government officers, lecturers, secondary school teachers and large-scale farmers as well as middle and junior managers, senior supervisors and clerks, qualified technicians and nurses, primary school teachers and medium-sized farm managers’. Also mentioned are mechanics, carpenters, part-time technicians, on-training graduates and untrained teachers, junior clerks and owners of small farms. The service primarily targets the age group of 18–35, with 35–49 yearolds as the secondary group, and offers specialised public-responsibility programming for young people (9–18). The English Service is described as providing a ‘comprehensive range of programming in the categories of information, education and music … [the] English Service refocused its programming to be trendy and commercially viable’.92 Formats vary from breakfast shows featuring infotainment and soul music, mid-morning shows with African ‘golden’ music and light talk shows including audience call-ins and text messaging, to midday and lunch-time shows offering ‘melodies and instrumentals’, Kenyan pop music and discussions, afternoon shows and easy listening sundowner classics. There are also late night love ballads, news, talk shows, R&B, drama, features, outside broadcasts (OB), children and youth variety shows, women’s programmes, programmes targeting disabled listeners, environmental and legal programmes as well as special programmes during national and international holidays and celebrations. It should be noted that although these stations are supposed to be ‘public service’ broadcasters, they deliberately target not the entire population but specifically those age groups which are seen as commercially viable. This orientation could be deemed to be in violation of their public mandate.

90 Salaams is Swahili for greetings. 91 Interview with Sophie Kilei, head of Idhaa ya Taifa, Nairobi, 19 March 2008. 92 www.kbc.co.ke.

74

P U B L I C BROADCASTING IN AFRICA: KENYA

Three regional services broadcast in a total of 17 languages: • Western Service: for Luo, Kisii, Kalenjin, Kuria and Teso speakers; • Eastern Service: broadcasts in the Somali, Boran, Rendile, Burji and Turkana languages; • Central Service: offers programming in languages spoken in Kenya’s Eastern Province and the Rift Valley. The broadcasts range from one and a quarter hours to three and a half hours daily for the different services which share the same studios. The Corporation operates three commercial services: • Metro FM: a 24-hour reggae station which – according to the KBC – has ‘become a big player on the entertainment scene’.93 • CORO FM: a Kikuyu language station, mainly serving Central Kenya, parts of the Rift Valley, Ukambani, Masailand and other regions. It says on its website: ‘Here at CORO FM, we provide a wide range of programmes that cover every aspect of life so to enrich the life of listeners. … We do take time to update our listeners on the daily occurrences. Our news is geared towards satisfying the needs of all. From small business men, farmers, students and holders of white colour [sic] jobs.’94 • Pwani FM: serves the coastal region and offers news and news updates at the top of the hour as well as Taarab and Congolese music, pop music and local bands. There are also late-night English language programmes featuring blues music.

2.2 television
• Channel One is the public service television station of the KBC and has countrywide coverage. According to its Guiding Principles ‘the station honours family values and provides wholesome entertainment. … The station’s policy is guided by informing, educating and entertaining the public.’ The KBC’s website also says: ‘The station strongly believes in patriotism. Channel One transmits ‘live’ national holidays, government events, parliamentary proceedings and international events, highlighting

93 Ibid. 94 Ibid.

THE KENYA BROADCASTING CORPORATION: OVERVIEW

75

Kenyans. It is also the home of sports.’95 Each week Channel One broadcasts about three documentaries, 18 current affairs programmes, 30 religious programmes, and about 65 entertainment programmes.

3

Organisational structures and staff

3.1 structures
The KBC has a staff contingent of 890 members excluding artistes,96 marketing freelancers and part-timers. Between 2005 and 2008, the Corporation reduced its workforce drastically from 1 300 to the present number.97 Staff are spread across the country with the majority based at Broadcasting House in Nairobi. The internal organisational structure is headed by the board, followed by the managing director who oversees a directorate made up of three sections: the legal, the public relations and the audit sections. The KBC has nine departments: human resources, finance and administration, ict, units for audits and procurement, radio services, television services, news and editorial, technical, and sales. The KBC runs regional offices in the cities of Mombasa and Kisumu and local ones in the towns of Mt. Kenya, Kericho, Nakuru, Embu, Busia, Bungoma and Kakamega. Main offices like Nakuru, Mombasa and Kisumu are staffed with journalists as well as technical, advertising and administration staff. Smaller offices usually employ one producer and a technician as well as some administration staff. The news department is headed by the editor-in-chief who is in charge of both radio and television news, current affairs programmes and documentaries. The newsroom is separated into divisions for radio and television whose respective heads lead teams of various line editors. Reporters and translators report to these line editors. The editorial departments (news, radio, television) are guided by a senior management committee chaired by the managing director. This committee determines editorial policy on matters such as public morality, legal issues and government directives. Logistics for the coverage of news events is the responsibility of the controller. S/he runs the diary and oversees the production of programmes. Where national issues are concerned, joint meetings with managers drawn from the editorial departments are conducted and decisions made collectively.
95 Ibid. 96 An artiste is a person who is not an employee of the Corporation, who is invited or engaged to participate in the production and broadcasting of programmes or parts of programmes by sound or television for the Corporation. 97 Interview with Hezekiel Oira, op.cit.

76

P U B L I C BROADCASTING IN AFRICA: KENYA

Henry Makhoha, the controller of KBC Radio, says KBC has a five-year Strategic Plan (2007–2012) with guidelines that set out editorial and policy perspectives and objectives for each department.98 The document has been signed by government. ‘Performance contracts have also been signed between the KBC board and the government.’99 Performance contracts were introduced by government in 2003 as a management tool to create accountability to the public for targeted results. They focus on performance and quality of service, involvement of service consumers, evaluation of quality of service delivery, and ranking of institutions by excellence in performance. Former corporation secretary Hezekiel Oira points out that the document refers to KBC as a ‘profit-making organisation’ – ‘a misleading term, given that a public broadcaster is meant to render services to the public’.100 According to Makhoha the KBC also sets targets for itself. Overall targets must be achieved by the end of each financial year in June: ‘This is seen as a way of making the broadcaster professional, and the management effective. There is proper planning, work is outlined clearly, and reporting-back mechanisms are in place. The management has also developed a tracking mechanism where monitoring is done on a daily basis.’ The marketing department is in charge of advertising and sponsorships. From time to time there is a conflict of interests between those of the department and the ‘public service’ mandate of the broadcaster, for example if a client has already bought airtime and a national/state function needs to be covered at the same time, leading to a loss of income for the Corporation. Overall, the structure of the KBC is fashioned along the lines of the civil service. Officers do not make decisions independently but have to have them approved by a superior, a process that may involve a lot of bureaucratic red tape. According to Oira ‘some managers therefore lack confidence in implementing decisions’. The KBC has in the past attempted to design a modern organogram that would be responsive to change. The Federation of Kenya Employers (FKE) was contracted to help with this reform effort but ended up again producing a civil service design. FKE was contracted on the basis of the state’s procurement rules which stipulate that the lowest bidder should be awarded a tender. ‘Unfortunately the lowest bidder might not necessarily be the most qualified,’ says Oira.

98 The document was not available. 99 Interview with Henry Makhoha, controller of KBC Radio, 6 March 2008. 100 Interview with Hezekiel Oira, op cit.

THE KENYA BROADCASTING CORPORATION: OVERVIEW

77

3.2 staff
The entry requirement for newsroom and production staff is a diploma in any area of mass communication. Preference is given to graduates of the Kenya Institute of Mass Communication (KIMC) because it is affiliated to the ministry of information and communication and conducts formal training for the KBC.101 For those in management, the minimum requirement is a bachelor or similar degree from a recognised university. The KBC Act in its section 8(2)(h) obliges the broadcaster ‘to do anything for the purpose of advancing the skill of persons employed or to be employed by the Corporation’. Pius Mutuku Mueke, a senior human resources officer at the KBC, says that the corporation’s in-house training courses are informed by the training needs of the different departments.102 However, staff members who requested not to be named for fear of victimisation talked of favouritism, especially when training involved financial gain such as per diem allowances, and a lack of proper procedures for choosing the most appropriate people for training. The training often did not focus on future market trends or needs, which had resulted in the KBC lagging behind in terms of technology and current broadcasting concepts. Some members of staff also felt that the broadcaster lacked mentors and coaches. The salaries for senior managers and heads of departments at the KBC range from KES 75 935 to 147 335 (US$ 927 to 1800) plus a housing allowance of between KES 40 000 and 60 000 (US$ 500 to 740) per month. Middle and junior managers, reporters and technicians earn between KES 24 815 and 90 335 (US$ 303 to 1103) plus a housing allowance ranging from KES 20 000 to 35 000 (US$ 250 to 430). Junior and support staff are paid between KES 8115 and 34 055 (US$ 99 to 416) together with a housing allowance of KES 6 000 up to 16 000 (US$ 75 to 200). The managing director and his/her deputy negotiate their terms of employment with the minister of information and communication outside these set structures. These low salaries result in a high staff turnover as other stations offer better pay packages: ‘This [happens] especially after staff have undergone training which KBC provides in conjunction with international organisations [such as] the BBC and Deutsche Welle (DW).’ 103 Peter Aoga, an economist with the Kenya Civil Society Alliance, says: ‘It is clear that staff are not left with any savings, which then can be interpreted in economic
101 Interview with Pius Mutuku Mueke, 19 March 2008. 102 Ibid. 103 Ibid.

78

P U B L I C BROADCASTING IN AFRICA: KENYA

terms that they are not earning a living wage. A lot of them might be living in debt, a situation that could result in employees who are unhappy with the earnings and conditions of work, and therefore do not find the job exciting. Their output could also be low.’104 Staff interviewed on the general working conditions of the KBC complained about inadequate facilities such as computers and access to the internet, congestion in the newsroom, and a lack of transparency in the provision of training opportunities and sometimes also in relation to promotions. Many spoke about low morale among staff. Some agreed that the KBC needs to rationalise further and reduce staff numbers. Its large workforce allowed for duplication of duties. There was also a lack of commitment on the part of some who ended up using the broadcaster’s facilities, for example telephones, for their personal benefit. A leaner organisational structure, they said, would improve the Corporation’s performance.

4 Conclusions and recommendations
The Kenya Broadcasting Corporation – both by law and in practice – is a broadcaster owned and controlled by the government and serving the interests of the government. The KBC’s board of directors is appointed by government and includes government officials. The minister for information and communication appoints the managing director and is entitled to make regulations on how the broadcaster is to carry out its work. Government can also second public officers to the KBC. This type of governance goes against the objectives expressed in clause VI of the in African Declaration of Principles on Freedom of Expression, which states, among others:
State and government controlled broadcasters should be transformed into public service broadcasters, accountable to the public through the legislature rather than the government, in accordance with the following principles: • public broadcasters should be governed by a board which is protected against interference, particularly of a political or economic nature; • the editorial independence of public service broadcasters should be guaranteed; […]

104 Peter Aoga, interview, Nairobi, 23 March 2008.

THE KENYA BROADCASTING CORPORATION: OVERVIEW

79

Even more importantly, the present governance model – and the absence of editorial independence in particular – clearly contravenes the country’s new constitution which says in its article 34(4) that
All State-owned media shall— (a) be free to determine independently the editorial content of their broadcasts or other communications; (b) be impartial; and (c) afford fair opportunity for the presentation of divergent views and dissenting opinions.

The KBC’s mandate – as formulated in the Kenya Broadcasting Corporation Act – is ‘to assume the Government functions of producing and broadcasting programmes or parts of programmes by sound or television’. In line with this mandate, the KBC is organised much like the civil service with its strict hierarchies and top-down lines of command. Attempts to design a modern organisational structure for the broadcaster have failed so far. A performance contract between the Corporation and the government defines the KBC as a profit-making organisation. This may explain why the two national radio services (English and Swahili), according to their own PR material, deliberately target not the entire population but those age groups which are seen as commercially viable. By so doing they are failing to fulfil their public mandate. KBC’s television station Channel One also defines itself – at least partly – as a commercially oriented broadcaster. The salaries of KBC staff – the middle and lower levels in particular – are totally inadequate and out of kilter with those in the wider broadcasting industry. In-house training does not seem to focus on future broadcasting trends or needs, resulting in the KBC lagging behind in skills development.

recommendations
• A new Kenya Broadcasting Corporation (KBC) Act must be passed as a matter of urgency to bring the broadcaster in line with the new constitution by transforming the present state broadcaster into a public broadcaster that serves the public interest. The act must outline clear governing structures designed to shield the broadcaster from political, commercial and other partisan interference and undue influence brought to bear by other powerful forces in society.

80

P U B L I C BROADCASTING IN AFRICA: KENYA

• The KBC should be governed by a board established and acting according to the following principles: – Appointment procedures should be open, transparent and free from political interference and allow the public to nominate board members of their choice. – The board should be representative of Kenya’s diversity with regard to, among others, profession, gender, ethnicity and faith and include members with the necessary skills and competencies. – The appointment procedure for members of the board should be open and transparent, involve the effective participation of civil society/non-state actors, and should not be controlled by any particular political party. The appointments body should invite the public through advertisements to nominate candidates, and publish the full list of persons nominated as well as the short-list of candidates to be interviewed in public. – Persons who are office bearers with the state or political parties or have business interests in the media industry should not be eligible for board membership. – The role of the board role should be clearly set out in law and its main responsibility should be to ensure that the public broadcaster is protected against undue political or commercial influences and fulfils its mandate in the public interest. – The board should appoint the managing director and other senior managers. The management should be directly accountable to the board. – The board should not interfere in the day-to-day decision making of the broadcaster especially in relation to broadcast content and respect the principle of editorial independence. • The new KBC Act should guarantee editorial independence for the KBC. • The new KBC Act should design a modern organisational structure which cuts out old-fashioned civil service hierarchies. • Management and journalists at the KBC need training on the concept of public broadcasting, focusing on: – principles and values of public broadcasting; – the role of journalists and management in a public broadcaster; – challenges facing public broadcasters in the era of commercialisation and competition; – the role of public broadcasting in the digital era.

7
Funding of the Kenya Broadcasting Corporation

1

Main sources of funding

The Kenya Broadcasting Corporation Act (1989, amended in 2009) says in its section 37:
The Government may make grants to the Corporation as are necessary for the purposes of the Corporation and for carrying this Act into effect.

Section 38, however, obliges the corporation to operate as a commercial enterprise with prescribed annual returns:
It shall be the duty of the Corporation to conduct its business according to commercial principles and to perform its functions in such a manner as to secure that … its net operating income is not less than sufficient to secure an annual return on the value of the net fixed assets in operation by the Corporation of such percentage as the Minister may from time to time direct.

Sections 8(1)(h), 8(2)(i) and 8(2)(j) allow the KBC to :
(1)(h) provide facilities for commercial advertising and for the production of commercial programmes at such fee or levy as the Corporation may determine; (2)(i) accept for broadcasting, with or without charge, advertisements and announcements which do not conflict with the general policy of the Corporation;

82

P U B L I C BROADCASTING IN AFRICA: KENYA

(j) make available to broadcasting organizations the use of its sound and television studios upon such terms as the Corporation may determine for the purpose of preparing programmes for broadcasting …

The Broadcasting Regulations 2009 in section 11(2), however, modify these provisions (without repealing them) by saying:
The public broadcasting service shall be supported by revenues from the exchequer, grants, donations and its commercial services but shall not draw from advertising and sponsorship.

This means that the KBC is not allowed to carry advertisements in or accept sponsorships for programming on its public service stations such as the national English and Swahili and the regional radio services as well as television Channel One. These are now supposed to be funded mainly by the government and crosssubsidisation from its commercial services. In the 1990s, the government stopped funding for most of its parastatals including the KBC. In the case of the state broadcaster the resulting scramble to make up for the shortfall was exacerbated by the concurrent entry of private service providers into the largely unregulated broadcasting environment. KBC’s shrinking market share due to stiff competition from commercial stations drastically reduced its advertising revenue when it was more vital for its survival than ever. There were no policies to give the national broadcaster any protection against commercial competition. The ministry of information and communications has provided support for the KBC on an ad hoc basis.105 Over the past few years it granted more than KES 400 million (US$ 4.9 million) for various purposes and projects. The bulk of the money (KES 300 million), as directed by government, went into paying the Kenya Power and Lighting Company for its services; KES 90 million were used to set up transmission stations in Kibwezi and Makueni, and KES 40 million to purchase vehicles for the coverage of elections in 2007.106 In the same year government funded the setting up of transmission stations in various marginalised areas. For KBC management this meant an extra burden being placed on the Corporation because staff needed to be hired to operate these transmitters, and additional electricity bills and running costs had to be paid for. Government also funded the rationalisation of staff that saw the workforce reduced from 1 300 to 840.
105 Interview with Dr Bitange Ndemo, permanent secretary, ministry of information and communication, Nairobi, 21 February 2008. 106 Hezekiel Oira, op.cit.

FUNDING OF THE KENYA BROADCASTING CORPORATION

83

The KBC has been earning revenue by selling airtime through advertising, casual announcements and greetings as well as renting out space on its masts for transmitters of private broadcasters. Out of the total advertising spend on radio, television, print and outdoor media of KES 31.4 billion (US$ 387 million) in 2009,107 the KBC’s share came to around KES 800 million (US$ 9.9 million). The KBC seems to be finding it difficult to source more income from advertisements. Its single greatest challenge in this regard is that the public perceives the national broadcaster and the government as two sides of the same coin. The station has been trying to recover from this negative perception greatly reinforced when it played a highly partisan role in the 2007 general election and post election period of 2008. Some advertising agencies for example were not willing to give the KBC any business for the better half of 2008, accusing it of biased coverage in the December 2007 elections and their aftermath.108 Further income is generated by joint ventures such as the one with Multichoice’s Digital Satellite Television (DSTV), in which the KBC has a 40 per cent shareholding, or by leasing out frequencies to private broadcasters such as Ghetto FM. Such frequency arrangements, however, are no longer allowed under the Broadcasting Regulations 2009: section 11(3) stipulates that the KBC ‘shall not lease or transfer frequencies or channels assigned to it for use in public broadcasting’. Technically, the KBC is insolvent. The Corporation’s approximate annual revenue is KES 800 million (US$ 9.9 million) while annual operating expenditure stands at KES 1.2 billion (US$ 14.8 million)109 – which means a massive shortfall of KES 400 million (US$ 4.9 million). ‘KBC is constantly operating on a deficit hence the snowballing debts and a constant financial burden,’ according to then corporation secretary Hezekiel Oira. ‘KBC needs a further KES 845 million (US$ 10.4 million) annually to cater for its public service broadcasting responsibility.’ The Corporation’s debts are substantial: KES 20 billion110 (US$ 250 million) in 2009, according to the responsible ministry. For example, the KBC owes the Kenya Power and Lighting Company over KES 500 million (US$ 6.2 million). As of May 2009, a massive KES 8.2 billion (US$ 101 million) were owed to the government of Japan for the installation of medium wave (MW) transmission stations.111 This project was part of an agreement concluded between the two governments 20 years earlier in 1989. By now, MW is an obsolete technology and changing from MW to FM is causing
107 ‘Ad spending grows to Sh 32bn as economy picks up’, Business Daily, 26 October 2010. 108 Interview with Henry Makhoha, controller of KBC Radio, 6 March 2008. 109 Official figures are not available. Figures provided in interview with Hezekiel Oira, KBC’s former corporation secretary, Nairobi, 19 March 2008. 110 George Khaniri, assistant minister, ministry of information and communication, in a speech delivered at Kenya’s Digital Launch, 9 December 2009. 111 Report on the Financial Status of the KBC, in the National Assembly Official Report, 21 May 2009, p. 18.

84

P U B L I C BROADCASTING IN AFRICA: KENYA

additional costs for the KBC. The KBC has urged the government to take over this loan. The government has agreed to negotiate with its Japanese counterpart on how to deal with the debt with a view to having it written off. If section 11(2) of the Broadcasting Regulations (2009) is really enforced, the KBC will to a large extent depend on grants from government. In the opinion of former corporation secretary Oira this might have its advantages: the KBC – at least its public broadcasting services – would be freed from the pressures of competition and the resulting influence over programming. ‘KBC has to contend with funding challenges. Advertisers come and ask for audience ratings. They want to see where they can get more audiences to advertise their products or services. As a result, there has been a proliferation of Mexican soaps showing on KBC, which may not have any cultural value for Kenya. But that is what the advertisers want, and KBC needs the funds.’112

2

Spending

Research for this study was not able to establish any details on the budget such as the amount of allocations to the various departments, the ratio of administrative and actual programming costs, or any information in this regard contained in the strategic plan or in financial reports. All these documents are not made available to the public and are considered confidential.113

3

Conclusions and recommendations

The African Commission on Human and Peoples’ Rights’ Declaration of Principles on Freedom of Expression says in its clause VI that ‘public broadcasters should be adequately funded in a manner that protects them from arbitrary interference with their budgets’. This is certainly not the case in Kenya. The KBC Act obliges the Corporation to achieve annual returns on the value of its assets according to the direction of the minister, thus turning the supposedly public broadcaster into a state enterprise expected – going by the letter of the law – to generate income for the state coffers. The KBC relies almost entirely on income from advertising and sponsorship. This dependence opens it up to interference from commercial interests as it is torn between
112 Hezekiel Oira, op.cit. 113 Phone interview with Hezekiel Oira, KBC’s former corporation secretary, 7 July 2008.

FUNDING OF THE KENYA BROADCASTING CORPORATION

85

its need for sufficient funding and its mandate to serve the public. Support from the government is granted on an ad hoc basis and is allocated mainly for technical projects or paying off debts. Funding is also obviously inadequate, given that the KBC is not able to pay its running costs and is drowning in debt. The exact state of the Corporation’s financial affairs and its real financial needs cannot be assessed because this kind of information is being kept secret. The Broadcasting Regulations 2009 (which have not yet taken effect) stipulate that the KBC’s public broadcasting services be no longer funded by advertisements and sponsorship but mainly by government grants and cross-subsidisation from its commercial services. Experience in other countries has shown that such a model does not generate sufficient income, especially in smaller economies.

recommendations
The basic precondition for any successful reform of funding is the passing and implementation of a new KBC Act, which would transform the state into a credible public broadcaster offering quality programming designed to meet diverse audience needs. • In view of the present financial status of the KBC it is recommended that: – the new board established by the new act commission a thorough audit of the corporation’s financial status by an independent accounting firm and make this audit public; – on the basis of a new programme policy, the organisational structure of the KBC be reviewed and reformed, in particular regarding administrative processes and expenses; – on the basis of the new programme policy and organisational structure, a business plan be developed which reflects the financial needs of the KBC and potential sources of revenue. • Any new funding model must provide stable, predictable multi-year funding and allow the broadcaster to plan and implement the necessary investment in programming and operational improvements. • In regard to revenues from the government, it is recommended that: – an independent panel of experts determine the amount of subsidies needed by the KBC over a three-year period to fulfil its public broadcasting mandate;

86

P U B L I C BROADCASTING IN AFRICA: KENYA

Parliament fund the public broadcaster directly (and not through a ministry or department) on the basis of the amount determined by the panel of experts. • It is further recommended to consider and research the possible introduction of a licence fee for public broadcasting services in Kenya. • As it seems unrealistic to discontinue all advertising on KBC public broadcasting services it is recommended that: – the KBC develop clear and strict guidelines on soliciting advertisements and conditions for accepting advertisements and programme sponsorships that will safeguard the broadcaster’s editorial independence and clearly separate the responsibilities of editorial and marketing departments; – the new independent broadcasting regulator embark on a process of public consultation with the objective to set appropriate limits to advertising and sponsorship on the KBC. After the enactment of new legislation for the KBC and the establishment of a new board, the government should take over all debts on the Corporation’s books to enable the broadcaster to make a new start with a clean slate.

8
Programming

1

Programme policies and guidelines

1.1 the Kbc
The mandate of the Kenya Broadcasting Corporation (KBC) is
to provide the audience with innovative, high quality programmes, enhance development of local cultural values by facilitating the dissemination, preservation and conservation of authentically indigenous values. It is also to contribute to the economic, educational, cultural and social well being of Kenyans, as well as to promote the ‘universal access to information for all’ through provision of free to air services.114

In November 2007 the KBC management published a ‘Customer Service Charter’ which defines the ‘vision’ of the KBC as becoming ‘a world class broadcaster’ with the mission ‘to transmit high quality, informative, educative and entertaining broadcasts in [the] public interest’. Its proclaimed values are
professionalism; honesty; fairness and impartiality; respect for national, cultural, religious, economic and family values; innovativeness, creativity and diversity, upholding responsible corporate citizenship …

Among the broadcaster’s ‘core functions’ the Charter lists the following:
• To conceptualize, design, produce and broadcast high quality, informative and entertaining Radio and Television programmes to all parts of the country …

114 www.kbc.co.ke.

88

P U B L I C BROADCASTING IN AFRICA: KENYA

• • • •

To conduct the broadcasting services with impartial attention to the interests and susceptibilities of the different communities in Kenya. To provide comprehensive, accurate and impartial news coverage to all sections of the country. To promote nationalism and a cohesive society. To provide live Radio and TV coverage of national functions and other important events.

In September 2008, the board of the KBC adopted a Journalistic Standards and Practices Guideline (Editorial Policy),115 which affirms the broadcaster’s commitment to upholding the highest editorial and ethical standards in the provision of news and programmes for radio and television. The people’s right to information and to exercise freedom of expression places on the Corporation the responsibility to be fair, accurate and factual in its presentations. The document is said to be a statement of the values and standards that KBC has strived to uphold over the years and meant to inform editorial operations in the present and future. The policy contains news guides where such values as accuracy, fairness, integrity and credibility are espoused. With regard to truth and accuracy, for example, the guideline indicates that information put out must conform with reality and should not in any way be misleading or false. Accuracy – getting the facts right – is said to be more important than speed. In terms of fairness, information should reflect equitably the relevant facts and significant points of view. As regards integrity, the guideline stipulates that KBC must aim to be blameless in the way it puts out information and avoid slanting or distorting facts. As a national station, its credibility is said to be critical and therefore its reports should be well grounded and backgrounded. On news gathering, the guideline says that the KBC must aim to witness events and gather information first hand, with the exception of that which has been gathered by the official Kenya News Agency. The agency is government-owned and based in the ministry of information and communications. While this unquestioning reliance on government-produced news may be at odds with the high premium placed on credibility, it is in line with the objective of the KBC, stipulated in the KBC Act, ‘to assume the Government functions of producing and broadcasting programmes or parts of programmes by sound or television’. Issues of national security, the guideline states, must be treated with a lot of care. If a reporter should happen to come across material that has national security implications,
115 The Kenya Broadcasting Corporation Journalistic Standards and Practice Guideline, May 2008.

PROGRAMMING

89

due regard must be had to the Official Secrets Act as well as considerations as to the value of the story vis-à-vis its possible implications. Such cases must be referred to senior officers at the KBC. A section on parliamentary broadcasting prescribes that the KBC should make use of parliamentary material only in news and factual programmes or for educational purposes. It prohibits use of parliamentary material for light entertainment, fictional or drama programmes, programmes of satire or party political broadcasts. The guideline says in regard to religious broadcasting that the KBC should reflect the worship, thought and action of the principal religious traditions of the nation and that religious programmes should not attack other denominations and faiths. Such programmes should also not be vehicles for recruitment campaigns for a particular denomination or sect, and contributors to such programmes should not ask audiences for donations, or make claims of exceptional powers, for example those of healing. On election and referendum reporting, the guideline affirms KBC’s commitment to impartiality and points out that the KBC Act obliges the broadcaster to cover all parties equitably, and to ensure that reports are not influenced by political parties and politicians. Therefore, the broadcaster must ensure that it gives all the major political parties equitable airtime during campaigning, and its reports should not be seen to favour particular candidates. Significant minor parties must also be given some coverage during the campaign period. Notwithstanding all these carefully crafted guidelines and standards, in reality the minister of information and communication exercises a lot of control over the KBC and the broadcaster has to contend with the government’s yearning for positive coverage. A former assistant minister in the department, Koigi Wamwere, explained how the government sees the broadcaster’s role:116 ‘KBC should primarily serve the interests of the people and tell the government what the people want. Secondly, it should tell the people what the government has been doing.’ He added that when private media ignore news or information from the government, ‘KBC should accord the government preferential status and allow it to be heard. KBC cannot make the same demands on the government that private broadcasters do.’

1. 2 commercial and community broadcasters
Royal Media Services (RMS), one of the larger media houses which owns 11 radio stations and Citizen TV, developed policy guidelines and editorial objectives which were adopted by the directors and management in 2009. The guidelines borrowed
116 ‘Noisy Politicians still want to script at KBC’, Expression Today, April 2007, p. 31.

90

P U B L I C BROADCASTING IN AFRICA: KENYA

from various codes including the Media Council of Kenya Code of Ethics.117 The point of departure for the guidelines is that ‘Royal Media Services (RMS) outlets have a crucial role to play in empowering Kenyans and creating a sense of hope in themselves and their country’. RMS sees itself as a social institution which discharges crucial duties by carrying information, debates and comments on society. It therefore recognises its responsibility to allow different views to be expressed. The guidelines point out that RMS cannot yield to any pressure from anybody or any institution that might want to prevent the free flow of information, free access to sources and open debate on any matter of importance to society. RMS regards it as its duty to put out information on what goes on in society, and to uncover and disclose matters that ought to be subjected to debate or criticism, as well as protect individuals against injustices or neglect committed by public authorities and institutions, private concerns and others. RMS outlets, the guidelines say, stand for racial, ethnic, religious and communal harmony and tolerance: they aim to help audiences of all races and nations to see events in perspective, to understand their inter-relationships. RMS supports the principles of democracy as they are most widely understood, that is, good governance, transparency and accountability; it supports and promotes the protection and enhancement of human rights and civil liberties; promotes the conservation and protection of the environment; supports the interests of the underprivileged and disadvantaged groups or persons, and will work to combat injustice without fear or favour; will seek to be sensitive to gender issues, the interests of the rural population and minorities. The guidelines say specifically that the coverage of women’s issues should not be confined to mundane and cosmetic domestic issues. The guidelines point out that news management and programming are the ‘power house’ of the group. Being a reflection of its social obligation to its audiences, RMS news should aim to appeal to a wide spectrum of listeners and viewers within the context of editorial and marketing parameters, and no one sector of the community, profession or editorial objective should dominate. News should be authoritative without being didactic; encourage the intelligent expression of African thought; and avoid such ‘non news’ content as empty statements of a general nature, occasions or press releases where publicity for individuals, groups or organisations is the sole determinant objective. News stories should contain facts not generally known; not be spiteful, prejudiced, propagandist or extremist; avoid the bizarre and offensive and always maintain standards of decency and good taste. Wording should be temperate and non-inflammatory. In particular, news, views or comments relating to ethnic
117 Interview with Mutegi Njau, Royal Media Services, training editor, Nakuru, 27 November 2009.

PROGRAMMING

91

or religious disputes/clashes should be aired after proper verification of facts and presented with due caution and restraint in a manner which is conducive to the creation of an atmosphere congenial to national harmony, reconciliation, amity and peace. Sensational, provocative and alarming news are to be avoided. News programmes or comments should not be produced or edited in a manner likely to inflame the passions, aggravate the tension or accentuate the strained relationships between communities concerned. Where programme producers or editors receive a report, photograph, radio or television programme, or video containing defamatory or derogatory imputations or comments touching on the public conduct or character of an individual or organisation, they should, before using the information, check with due care and attention, their factual accuracy with the person or organisation concerned to elicit comments or reaction and publish the same. If responsibility is disclaimed, this determination should be explicitly stated beforehand. The guidelines point out that RMS promotes a policy of zero-tolerance to corrupt practices. With this in mind, its journalists, producers, programme directors, broadcasters and editors must be free of obligation to any interest other than the public’s right to know the truth. Producers, editors, journalists, directors and employees are expected to conduct themselves in a manner that protects them from conflicts of interest, real or apparent. In addition, journalists and editors must not allow their political affiliations or views to influence their editorial judgment. Another major television network, KTN, is said to have editorial policies and guidelines in place as well. However, members of staff interviewed for this research (who requested not to be named) had not seen them. Since no copy was available, it was not possible to review their content.

2

Programme schedules

2.1 Kbc television channel one
Channel One is KBC’s public television service. The following table gives an overview of the types of programmes aired by the channel and their respective airtimes.

92

P U B L I C BROADCASTING IN AFRICA: KENYA

Table 7

Types of programmes on KBC’s TV Channel One in an average week118
total minutes per week 1 465 2 560 950 755 850 240 760 150 155 140 210 135 90 340 555 725 Percentage 14.5 25.4 9.4 7.5 8.4 2.4 7.5 1.5 1.5 1.4 2.4 1.3 0.9 3.4 5.5 7.2

Programme genres News bulletins local News bulletins international118 Current affairs Documentaries/features Drama/comedy/serials Movies Music shows Talk shows (mainly political/social/topical issues) Chat shows (mainly human interest and lifestyle topics) Educational programmes Children’s programmes Youth programmes Women’s programmes Sports programmes Faith programmes Others

Source: Own research. Programme schedules were analysed for the week of 23 to 29 March 2009.

There were 129 programmes in English and 44 in Kiswahili. There were 112 programmes produced locally and 66 foreign productions, a ratio of 2:1. Local news are the pre-dominant feature on Channel one, making up 14.5 per cent of weekly airtime. The main bulletins are broadcast from 13h00 to 13h30 at midday and 21h00 to 21h45 in the evening. International bulletins are aired as ‘fillers’ for night time viewing from midnight to 05h30. The main offerings on weekday mornings are Good Morning Kenya (08h00 to 09h00), a current affairs programme where two or three current/topical issues, either political or social, are discussed; a slot for documentaries from 10h00 to 11h00; and a ‘soapie’ from 11h00 to 12h00. Afternoons offer a mix of magazine shows and entertainment shows (e.g. Club 1, a musical show targeting the youth, from 17h00 to 18h00) as well as live coverage of Parliament whenever the house is in session. In the evening the channel broadcasts soapies and movies as well as the occasional discussion programme. Music shows feature music in Kiswahili, English, Lingala and most of the other local Kenyan languages, as well as in other African languages. Specific audiences like children, youth and women are accorded a total of 4.6
118 During the week under review the international news bulletins came from the BBC and China TV. Both services have since been discontinued and replaced by France 24, the French international broadcaster.

PROGRAMMING

93

per cent of airtime per week. A special programme for women, Diva, highlights women’s achievements and provides all-round information from careers to business to fashion or politics from a feminine angle. Sunday mornings are dominated by faith programmes. Topical political and social issues are covered in programmes like: • Moving the Masses (90 minutes): aims to create civic engagement • Mwamko Mseto – Variety of Awakenings (30 minutes): a drama programme depicting the spins and twists of the Kenyan lifestyle • Seeds for Greatness (30 minutes): an informative talk show • Straight Talk Africa (70 minutes): a Voice of America produced international call-in talk show for Africans • Angaza – Highlight (30 minutes): a religious talk with young Christian leaders, interspersed with gospel music • Dunia wiki hii – The World This Week (20 minutes): a current affairs programme on global events • XY (30 minutes): a human interest and lifestyle talk show. Educational programmes include: • Chakula Bora (30 minutes): deals with nutritional matters • Kiswahili Tukienzi (20 minutes): teaches the use of the Kiswahili language • Discovering Science (30 minutes).

2.2 Kbc idhaa ya taifa (radio)
KBC IDHAA ya Taifa is KBC’s main public radio service and broadcasts in Kiswahili. Popular music, featuring a variety of local and other East African productions, especially from Tanzania and the Democratic Republic of Congo, is clearly the predominant genre on Idhaa radio. These programmes are popular in particular with audiences in rural areas who do not receive signals from the FM radio stations in cities and towns. From midnight to early morning the station broadcasts non-stop music shows without talk.

94

P U B L I C BROADCASTING IN AFRICA: KENYA

Table 8

Types of programmes on KBC’s Idhaa ya Taifa Radio in an average week
total minutes per week 910 180 245 40 2375 870 160 885 310 15 60 195 400 525 2910 Percentage 9.0 1.9 2.4 0.4 23.6 8.6 1.9 8.8 3.1 0.1 0.6 1.9 4.0 5.2 28.5

Programme genres News bulletins Current affairs Documentaries/features Drama Music shows – popular Music shows – special interest Talk shows (mainly political/social/topical issues) Shows with mix of music, talk, games, information Educational programmes Culture/media/arts programmes Youth programmes Sports programmes Faith programmes Infomercials Others

Source: Own research. Programme schedules were analysed for the week of 23 to 29 March 2009.

Fifteen-minute news bulletins are aired at 7h00, 9h00, 13h00, 16h00, 19h00 and 21h00. In between there are news headlines at the top of every other hour. Current affairs programmes include: • Darubini (28 minutes every weekday morning): a round-up of reports from KBC and Kenya News Agency reporters from all over the country • Mseto wa Malimwengu (30 minutes on Sundays) • Uraia (55 minutes) and Bunge/jibu lako (15 minutes): talk shows that focus on topical social or political issues. Educational programmes include: • Je huu ni ungwana (30 minutes): discusses issues of public morals, behaviour and conduct – for example, talking loudly on mobile phones in public spaces • Ukarabati wa Lugha (60 minutes twice a week): builds Kiswahili vocabulary • Amani na Usalama – Safety and Security: discusses road safety and traffic issues such as accidents with representatives of the police • Uliza Ujibiwe – Questions and Answers: an Islamic religious programme with a sheikh in the studio answering questions from listeners.

PROGRAMMING

95

The station does not offer any specific children’s or women’s programmes and only very few radio dramas. The amount of programming targeting the youth (0.6 per cent of the week’s offering) is minuscule and this will make the station unattractive for young people in areas where they can receive FM radio.

2.3 Kenya television network
Kenya Television Network broadcasts predominantly in English. A typical weekday on KTN takes off at 06.h30 with Sunrise Live, a two-and-a-halfhour current affairs show that covers a variety of topical issues from the business, sports, politics and other social fields, with a news bulletin incorporated in the magazine. From 09h00 to 12h00 the station switches over to CNN, followed by entertainment for an hour. At 13h00 there is Lunch Time News for 25 minutes, followed by a soap opera, a business programme (Financial Markets Live) at 14h00 for 30 minutes (sponsored by Equity and Kenya Commercial Banks) and a Classic TV movie from 14h30 to 16h00. From 16h00 to 18h00 KTN targets children and young people starting with cartoons followed by a kid’s show (Fun Factory – 16h10 to 17h00) and a magazine for youth (Straight-up – 17h00 to 18h00) which is presented by young people and discusses issues of interest like fashion, music and entertainment. The evening block begins with a Kiswahili news bulletin at 19h00 and has two more bulletins in English at 21h00 and 23h00. In between the station airs dramas, comedies, soaps and features. At midnight KTN switches to CNN again until 06h30. Local news bulletins account for 1 360 minutes per week (13.5 per cent of programming) while dramas and soaps come to a total of 3 000 minutes (30 per cent). KTN does not offer any talk show, educational or women’s programmes. In the week analysed119 a total of 132 programmes were in English and 14 in Kiswahili. The majority of programmes in English are foreign productions. In all, 52 programmes were locally produced and 94 were foreign productions, a ratio of a little under 1:2. During the period under review, there was no local drama on offer. The bulk of local productions mainly fall in the category of news and current affairs.

2.4 radio citizen
Radio Citizen is a nationwide FM network broadcasting in Kiswahili. The station offers five programme blocks each weekday:

119 The schedules were analysed for the week of 23 to 29 March 2009.

96

P U B L I C BROADCASTING IN AFRICA: KENYA

• • • • •

05h00–10h00: Jambo Kenya (Hello Kenya) 10h00–13h00: Chapa Kazi (Keep Working) 13h00–16h00: Mambo Mseto (Variety of issues and concerns) 16h00–20h00: Drive On 20h00–24h00: Good Evening Kenya.

These shows include current affairs segments such as: • Yaliyotendeka (15 minutes daily): current affairs commentary • Ulimwengu wa fulusi (13 minutes): business news • Swala Kuu (30 minutes): live debates dealing with family issues with listeners calling in • Mjadala wa Jambo Kenya (60 minutes): debates on key issues in Kenya • Bunge la wiki (30 minutes once a week): covering debates in parliament. On weekdays the station also runs three quiz shows a day: Chemsha Bongo (Brain teaser), Tafsiri ya maneno (translate music lines), and Fumbo. Saturday mornings are dedicated to educational programmes for students both in primary and secondary school. A literature examination set-work book is analysed, students are given tips on how to write a well-composed essay and are encouraged to send their work in to the station. In the language section, they are taught new Kiswahili vocabulary in emerging fields like the internet and communication, business and development. These educational programmes include Fasihi fasaha (a five-minute school set-work book review), Mambo chwara (bad habits to drop – 10 minutes), and Amini usiamini (amazing facts – 10 minutes). The rest of the weekend is given over to variety shows and music for specific audiences like reggae, classics and rumba. These shows are highly interactive, play popular music and have ‘celebrity’ presenters – like, for instance, Roga Roga (literal translation, ‘bewitch’) hosted by veteran broadcaster Fred Machoka. On Sundays, there is the Chemsha Bongo game show, the grand finale of the quiz during the week, where participants are invited to the studio and asked questions on sports, politics and general knowledge. Candidates are eliminated at each stage of the game and a prize of KES 3 000 (US$ 37) is awarded to the last person remaining. No other local station offers a game show like this. All features, documentaries and other talk programmes broadcast during the day are repeated back-to-back from midnight to 05h00 am under the title Citizen Express. Radio Citizen’s news services are broadcast for 15 minutes each at 07h00, 09h00 and 13h00 in bulletins called Dira (compass) ya Citizen, and at 16h00, 17h00 and 21h00 as Jarida (journal) ya Citizen.

PROGRAMMING

97

In addition, Radio Citizen airs Voice of America (VOA) news bulletins on Tuesdays from 19h15 to 19h45, a live link from Washington DC, broadcast in Kiswahili. The stories concentrate on East Africa, and are sent in by East African journalists and compiled in the USA.

3

News and current affairs

3.1 Kbc television
The Presidential Press Services (PPS), the Vice Presidential Press Services (VPPS) and – more recently, since the creation of that position in 2008 – the Prime Minister’s Press Services are the suppliers of the main items on the president, vice-president and prime minister if the country broadcast on the KBC’s Channel One. The stories are produced by the respective units and delivered to the broadcaster ready for transmission. They tend to be longer than other news items. The newsroom does not have any control over the accuracy and fairness of the content and is not allowed to edit them, except for grammar and minor mistakes, and this is done in consultation with the respective press service. The only editorial decision left to the broadcaster is where to position the items in the bulletin – usually in a prominent place. The 19h00 news bulletin during the week from 1 to 7 August 2009 was monitored for this research. It was the time of a visit from US Secretary of State Hillary Clinton and most stories therefore were related to this event. The remaining items covered events like the eviction of squatters from a forest in Rift Valley and the trial of 2007 post-election violence suspects. There were lengthy quotes from government officials and parliamentarians but no voices of ordinary people or experts. Most items did not offer any background information or connection to previous stories. However, KBC Channel One carried some more creative stories. For example there was an item on a historical building, Jumba la mtwana (house of slaves), in a coastal town and a feature on Buruburu, a suburban neighbourhood in Nairobi. There was also an agricultural feature which was well-researched, gave background and included quotes from ordinary people (farmers), experts (director of agriculture) and a government field officer. The KBC keeps away from controversy. For example, there was a difference of opinion about the resettlement of the Rift Valley squatters between the prime minister and parliamentarians from the region. This controversy was not mentioned. Instead the KBC broadcast an item produced and delivered by the prime minister’s press unit with administrative statements of what was to be done by whom, when and why.

98

P U B L I C BROADCASTING IN AFRICA: KENYA

The former corporation secretary of the KBC conceded in an interview for this study that politicians exert pressure on the newsroom: ‘They try to interfere with the editorial content and with newsworthiness. Internally, the management would want KBC to be more professional and credible.’120 Dr Bitange Ndemo, the permanent secretary in the ministry of information and communication, denies categorically that the government interferes with or has an impact on the editorial independence of the KBC. When asked why the KBC appears to be leaning towards government and the official line, in particular in its news coverage, Ndemo insisted that all editorial decisions are made exclusively by individuals and staff at the KBC.121 On weekday mornings KBC Channel One broadcasts Good Morning Kenya, a talk show on the most topical issue of the day. In the week under review, for example, the programme tackled the issue of food crises in Kenya and the government ban on school-holiday tuition. Many of the topics discussed raised strong feelings amongst viewers and elicited lots of text messages and phone calls.

3.2 Kbc radio idhaa ya taifa
KBC radio news bulletins are made up of an average of ten stories. These are straight items over the weekend, but contain sound bites and reports from the field during the week. Generally, the KBC airs more stories from the rural areas and remote parts of the country than other broadcasters. This is because the Corporation receives stories from the government-run Kenya News Agency (KNA), which has offices in all the districts of Kenya. For this study Radio Idhaa’s 19h00 Habari (news) programme was analysed during the week from 1 to 7 August 2009. Stories on the three main political leaders, the president, vice-president and prime minister, were provided by their respective press units. These items tend to be lengthy, with equally long sound bytes even when the information they convey does not warrant such extensive treatment. Information sources and people quoted are mostly politicians and government officials, even when the stories are from remote areas. One bulletin monitored contained stories featuring the vice-president, deputy prime minister, internal security minister, environment minister, health services minister, water minister and the agriculture minister. Radio Idhaa ya Taifa broadcasts a current affairs programme, Darubini (telescope),
120 Interview with Hezekiel Oira, former corporation secretary, KBC, Nairobi, 19 March 2009. 121 Interview with Dr Bitange Ndemo, permanent secretary, ministry of information and communication, Nairobi, 21 February 2008.

PROGRAMMING

99

a half-an-hour round-up of reports from KBC and KNA field reporters every weekday.122 Generally more than half of the stories cover the activities or statements of politicians and government officials based in Nairobi. For example, in one edition monitored ten out of 12 stories were Nairobi-based, featuring two ministers, the speaker of the National Assembly and five commercial companies in the capital. The remaining two stories were about a traffic accident and the opening of a cattle auction. The stories were presented without giving any interpretation or background. In an interview for this study, Evelyn Mwakina, KBC’s radio chief news editor, underlines the fact that the public broadcasting service is about providing services for the benefit of the country. The KBC is aware of what the public wants, she says, even though at times people do not understand that the KBC will not broadcast ‘sensational programming’ such as that aired by some commercial stations. In her view public broadcasting has the power to set the agenda and citizens expect the KBC to give them the ‘real thing’: ‘Professionalism and ethics demand that the public broadcaster gives to the public what the public can stand and to avoid sensationalism. KBC avoids instigating hatred and bad feelings that would make Kenyans uncomfortable and aims to keep the country cohesive with objective news.’123

3.3 Kenya television network (Ktn)
KTN’s 19h00 news bulletin KTN Leo (KTN Today) was monitored during the week from 1 to 7 August, 2009. Stories mostly originated from Nairobi and the surrounding areas, as well as from Mombasa. This is where the majority of KTN’s audience is based. The newsroom obviously follows the principle of newsworthiness and avoids being driven by the interests of politicians. One bulletin, for example, carried items on an air crash in Nairobi, tuberculosis, the tourist peak season at a game reserve, elections for the post of mayor of Nairobi, and a human interest story (man lost without trace for 27 years). In general, the items were well-researched, provided background information and explained probable implications. Examples are a story on the plight of an HIV-positive woman who was discriminated against and another one on a women’s group that manufactures commercial products using aloe vera. KTN does not shy away from controversy. During the week under review it covered two hotly debated issues, the eviction of illegal squatters from a Rift Valley forest, and the trial of suspects accused of 2007 post-election violence. In the squatter story,
122 Darubini was analysed from August 10 to 14, 2009. 123 Interview with Evelyn Mwakina, KBC Radio news editor, Nairobi, 20 March 2008.

100

P U B L I C BROADCASTING IN AFRICA: KENYA

attacks and counter attacks between Prime Minister Raila Odinga and Rift Valley parliamentarians were aired side by side. KTN’s Sunrise programme is a current affairs magazine aired from 06h00 to 09h00 on weekdays. It comprises a news bulletin, business news, a topical feature, sports news, traffic updates, a press review, a ‘sunrise diary’ and a ‘quote for the day’. Items are rotated on an hourly basis. If there are fresh stories, they will be incorporated, otherwise previous content is repeated. The show offers live discussions, usually with a good balance in the composition of guests invited. On one morning during the week under review,124 the creation of a local tribunal to try 2007 post-election violence suspects was discussed by a member of parliament who argued in support of such a local tribunal and the vice-chair of the Kenya Human Rights Commission who provided a different opinion. Both sides were given equal time to voice their views. Some of the programmes on KTN receive financial support from private companies. For example, the news headlines at the beginning of KTN’s news bulletins are sponsored by Safaricom. KTN says that it does not allow these sponsors to influence or interfere with its editorial independence. However a source that requested not to be named felt that even without direct interference by sponsors there is a degree of self censorship: ‘You may criticise but cannot go overboard. You quietly do not want to step on the toes of the sponsors.’

3.4 radio citizen
Radio Citizen news programmes are in Swahili and the news programme is known as Jarida (journal) la Citizen. Items are short and rarely go into any detail, giving very little background information to the story or its implications. The bulk of material on Radio Citizen news is political, with very few human interest or development stories. Most items focus on the president, his deputy and the prime minister. Radio Citizen’s Ripoti za Waandishi (journalists’ reports) is a round-up of reports on current affairs sent in by the station’s regional correspondents, aired each weekday from 19h15–19h30.125 These reports usually originate from different provinces. One edition, for example, carried stories on environmentalists engaged in tree planting at Mt. Kenya (Central Province), Sudanese arrested in Busia (Western Province), a casual workers strike in Mtwapa (Coast Province), three people hospitalised for jigger infestation in Kisii (Nyanza Province) and girls avoiding circumcision in Narok (Rift Valley). The
124 125 The period of analysis was 10 to 14 August 2009.

PROGRAMMING

101

newsmakers were ordinary citizens living and working in the respective areas. Many stories provide some depth and background, as in the case of a report on an indigenous community in Rift Valley which had declared that it would not agree to be counted in Kenya’s national census. The item contained information on the community and its living conditions in the forest, how it has been marginalised and discriminated against, and that its refusal was based on government’s failure to recruit young people from the community as census officers.

4 Comparison of state and commercial broadcasters
According to audience research done in 2008, listeners and viewers in Kenya are generally more satisfied with the offerings of commercial broadcasters.

4.1 radio
As the following table shows, while satisfaction levels with KBC radio are high, those for commercial stations are significantly higher. This applies particularly in regard to information, local news and coverage of events in all parts of the country – precisely those areas where the KBC should easily score higher ratings if it was really fulfilling its mandate as a public broadcaster. Table 9
index Promote local music Provide information that is educative Provide adequate local news that is relevant for my information needs Promote local drama Provide news from all parts of the country, including rural areas Reflect local cultures and way of life

Level of listener satisfaction with radio content (%)
Kbc radio – strongly or somewhat agree 79 78 76 74 70 69 commercial radio stations – strongly or somewhat agree 88 88 94 79 86 65

Source: The Steadman Group, Audience Research Survey, Kenya – March 2009, Kampala 2009

The same pattern is repeated when respondents are asked about their opinion on the diversity of radio programmes (Table 10). Part of the reason for higher satisfaction ratings of commercial stations in regard to ‘local languages’ may be the fact that the KBC’s local language programmes are mainly broadcast on the technically inferior

102

P U B L I C BROADCASTING IN AFRICA: KENYA

MW and not FM as is the case with private stations. While the KBC seemingly offers a wide variety of programmes with many separate, specialised slots and private stations rather follow the modern concept of block programming, listeners obviously have the impression that the content aired by commercial stations within these blocks is more varied. Table 10 Level of listener satisfaction with diversity of radio programmes (%)
index Provide enough programmes in local languages understood by the audience Offer entertainment for all kinds of people Provide programmes not only for the general public but also for minority audiences Provide adequate programmes to cater for children Offer a wide variety of programmes Kbc radio – strongly or somewhat agree 68 68 65 commercial radio stations – strongly or somewhat agree 79 82 75

67 69

73 82

Source: The Steadman Group, Audience Research Survey, Kenya – March 2009, Kampala 2009

The sharpest differences in listener satisfaction between the KBC and commercial radio stations are noted when it comes to impartiality and credibility. As Table 11 shows, only around half of all listeners say that they trust the information offered by KBC radio, compared with nearly 80 per cent who believe what they hear on commercial radio stations. Table 11 Level of listener satisfaction with impartiality and credibility of radio stations (%)
index Provide accurate information that I trust and believe Are impartial in news and current affairs, that is, they do not take sides Kbc radio – strongly or somewhat agree 50 46 commercial radio stations – strongly or somewhat agree 79 79

Source: The Steadman Group, Audience Research Survey, Kenya – March 2009, Kampala 2009

The lack of trust in the KBC also shows when listeners are asked about their perception of the overall independence of radio stations. On average about three quarters of respondents think commercial stations are independent, compared to less than half who share that opinion with regard to KBC’s radio stations. Surprisingly, even the level of perceived independence from advertisers is significantly higher for commercial

PROGRAMMING

103

stations than it is for the state broadcaster. The figures also suggest, and this is worth noting, that one quarter of respondents seem to be of the opinion that government exerts influence on the programming of commercial radio stations as well. Table 12 Level of listener satisfaction with independence of radio stations (%)
index Encourage informed discussion and debate on issues of public interest Provide a platform for information and debate on different or contending view points on public issues Are independent from advertisers, ie programming content is not influenced by advertisers Are independent from the government, ie programming content is not influenced by the government of the day Provide programming that holds those in power accountable to the public Kbc radio – strongly or somewhat agree 64 62 commercial radio stations – strongly or somewhat agree 82 80

47

68

46

75

49

73

Source: The Steadman Group, Audience Research Survey, Kenya – March 2009, Kampala 2009

4.2 television
The level of viewer satisfaction with television content, as shown in Table 13, is relatively high for both state and commercial television, with commercial TV stations scoring higher in the crucial areas of news and information. Table 13 Level of viewer satisfaction with television content (%)
index Promote local music Provide information that is educative Provide adequate local news that is relevant for my information needs Promote local drama Provide news from all parts of the country, including rural areas Reflect local cultures and way of life Kbc tv – strongly or somewhat agree 78 75 73 77 71 70 commercial tv stations – strongly or somewhat agree 83 86 91 82 84 76

Source: The Steadman Group, Audience Research Survey, Kenya – March 2009, Kampala 2009

104

P U B L I C BROADCASTING IN AFRICA: KENYA

With regard to the diversity of viewing on offer, commercial TV stations again achieve higher ratings (Table 14). Table 14 Level of viewer satisfaction with diversity of television programmes (%)
index Provide enough programmes in local languages understood by the audience Offer entertainment for all kinds of people Provide programmes not only for the general public but also for minority audiences Provide adequate programmes to cater for children Offer a wide variety of programmes Kbc tv – strongly or somewhat agree 64 69 63 commercial tv stations – strongly or somewhat agree 70 82 73

68 68

75 81

Source: The Steadman Group, Audience Research Survey, Kenya – March 2009, Kampala 2009

As in the case of radio, only around one half of viewers polled say they trust the information offered by KBC TV, compared to nearly 80 per cent who say the same for commercial television stations (Table 15). Table 15 Level of viewer satisfaction with impartiality and credibility of television stations (%)
index Provide accurate information that I trust and believe Are impartial in news and current affairs, that is, they do not take sides Kbc tv – strongly or somewhat agree 52 49 commercial tv stations – strongly or somewhat agree 78 77

Source: The Steadman Group, Audience Research Survey, Kenya – March 2009, Kampala 2009

The lack of trust in the KBC is again reflected when viewers are asked about their perceptions of the independence of television stations (Table 16). On average three quarters of all respondents think that commercial stations are independent compared to less than half who have that perception of KBC’s TV stations. As in the case of radio, quite a number of respondents (30 per cent) think that government in one way or another influences the programming of commercial TV stations as well.

PROGRAMMING

105

Table 16 Level of viewer satisfaction with independence of television stations (%)
index Encourage informed discussion and debate on issues of public interest Provide a platform for information and debate on different or contending view points on public issues Are independent from advertisers, i.e. programming content is not influenced by advertisers Are independent from the government, i.e. programming content is not influenced by the government of the day Provide programming that holds those in power accountable to the public Kbc tv – strongly or somewhat agree 64 59 commercial tv stations – strongly or somewhat agree 79 79

47

67

45

70

49

74

Source: The Steadman Group, Audience Research Survey, Kenya – March 2009, Kampala 2009

5

Feedback and complaints procedures

KBC management is aware that some parts of the audience have lost faith in the broadcaster but says that while the Corporation is doing its best, it is difficult to change people’s attitudes.126 Procedures have been put in place to encourage and facilitate feedback and deal with complaints and suggestions from the audience. The Corporation’s complaints charter provides for a complaints committee which, ideally, is supposed to meet every two weeks. In practice, this is not the case but meetings are said to ‘happen regularly’..127 The KBC keeps a confidential file of complaints. The public relations office is responsible for following up on implementation but it has a high staff turnover due to low remuneration. Staff interviewed for this research, who requested not to be named, expressed the need to empower the office to carry out its role of receiving and responding to feedback from the public. Instead, they said, ‘it only writes speeches for the bosses’.

6 Conclusions and recommendations
KBC programmes are a reflection of the KBC’s mandate to be a provider of government information. Its organisational structure follows the civil service model.
126 Interview with Hezekiel Oira, former corporation secretary, KBC, Nairobi, 19 March 2009. 127 Ibid.

106

P U B L I C BROADCASTING IN AFRICA: KENYA

In terms of quantity of information, the KBC has more local and more representative public interest programmes. The Corporation has the advantage of having regional offices that gather information from the grassroots. A mixed blessing is that they get, and use without checking, information from the government-controlled Kenya News Agency (KNA). Commercial stations do not have this kind of infrastructure. Many of them do offer public-interest programming. They would like to offer more, but the production of such programmes is expensive and they need to cover their overhead costs as well as survive in a competitive market. The KBC has a wider range of languages in its programming than private stations, as demanded by its mandate as a public broadcaster. KBC TV programming besides the news bulletins, however, is dominated by foreign productions. KBC news bulletins comprise to a large extent of items and stories produced and delivered by the government. These are broadcast without any editing. The result is that the bulletins are characterised by government voices and officialdom. Items which are outside the expected political mainstream are the exception and controversial issues are avoided. The news coverage of the private stations monitored for this study (which seem to be representative for the entire commercial sector) is more varied and guided by newsworthiness rather than political considerations. Consequently the trust in commercial stations is significantly higher than in KBC channels because the KBC’s organisational and political association with government has eroded its credibility. Despite this, the Corporation still has the capacity to become a source of news and information credible to all sectors of society, broadcasting in people’s own language(s) and reflecting their principal concerns. At the moment though, it has to balance between the ideals of a truly public broadcaster independent from political and commercial influences on the one hand, and the requirements of the law, on the other, establishing it as a provider of government information serving under the thumb of politicians desperate for positive coverage. The programme schedules of the commercial broadcasters reviewed are wellstructured and easily recognisable for the audiences: viewers and listeners know what they can expect at any time of the day. In contrast, the schedules of the KBC follow the old-fashioned model of ‘boxes’ for the various offerings, which seem to reflect the structure of editorial desks.

PROGRAMMING

107

recommendations
New legislation for the KBC as recommended in chapters 6 and 7 is a pre-condition for any major improvement of the KBC’s programming and boosting of its credibility. As soon as a new KBC Act is in place and implemented, the new independent board should: • Conduct research and reform the existing programme schedules to bring them in line with modern broadcasting in order to attract audiences and keep them loyal to the station; • Reorganise the Corporation to enable editors and programme producers to implement the new schedules; • In a process of public consultation, consider a policy on local content for its television channel with the objective of increasing local productions; • Develop a strategy to allocate more broadcast time to the various languages in Kenya; • Encourage partnerships for co-productions with independent producers; • Urge the government to discontinue the practice of having dedicated press units and leave the job of producing news and current affairs stories to the KBC, with the funds previously spent on this purpose to be channeled to the broadcaster; • Ensure that the newsroom treats and selects information from government institutions such as the Kenya News Agency with the same professional care it exercises with regard to that from any other sources; • Seek to extend the countrywide network of KBC reporters to decrease the broadcaster’s dependency on government sources; • Develop a policy to cater for people with special needs, for example, the use of sign language in certain programmes; • Initiate a comprehensive training programme for KBC staff to enable them to fulfil the mandate of a public broadcaster in the age of digital television.

9
Broadcasting Reform Efforts

1

Perceptions of the KBC

The point of departure for any meaningful reform of the KBC is a careful assessment of the status quo and the shared vision of what a truly public broadcaster should look like. With this in mind, the views of some key players both inside and outside the Corporation were sought for this study. Wachira Waruru, KBC’s managing director from 2003 to 2006 and former chairman of the Media Council of Kenya, points out that the KBC still suffers from its past and continues to be judged on its performance during the KANU and Daniel Arap Moi era up until 2003, not on how it operates at present.128 The Corporation, he thinks, should be ‘protected’ from the commercial interests that drive most private media to boost its public service role: ‘The public broadcaster needs to be cushioned to support marginalised communities.’ Waruru recommends government funding if the KBC is to remain a public broadcaster. He faulted the KBC Act for directing the Corporation to ‘conduct its business according to commercial principles and to perform its functions in such a manner as to realise its core activities as a public broadcast service’. In his opinion the KBC’s biggest problem is the lack of resources, given that it does not receive any funding from government for operational expenses and can only request funds for specific purposes like expanding its coverage.129 Waruru, appointed KBC chief when the first coalition government came into power in 2003, was surprisingly transferred to the Kenya Film Corporation in 2006. His attempts to professionalise the KBC and to restore a sense of balance in the newsroom had obviously not gone down well with some politicians, creating a view that he was an outsider rather than one of their own. Some charged that he favoured the opposition
128 ‘Why KBC Needs Protection’, Daily Nation, 19 June 2009. 129 Ibid.

BROADCASTING REFORM EFFORTS

109

and gave it more airtime than the government in the name of balanced news coverage: ‘That is typical of the complaints I received from politicians during my tenure at KBC. Whenever I asked for specific bulletins to watch to determine how I had favoured one side against another, no one ever came forward. Any attempt at objectivity was perceived as an act of hostility.’130 Njuki Githethwa,131 at the time of the interview for this study the community media programme officer at EcoNews Africa, cites the removal of Waruru as managing director as an example of the fact that ‘efforts to democratise KBC have been thwarted’. He feels that the KBC has still not moved from the mentality shaped by the single party state: ‘KBC is not balanced in its coverage of news and there is an element of withholding vital information and censorship’. This is of major concern because the KBC is largely a service for audiences in the rural areas who have limited choices in terms of other stations. Githethwa thinks that civil society organisations ‘expect balanced coverage of news and opinions, modern designs and output of KBC as a true public broadcaster. Given the opportunity they will push for policy guidance for public broadcasting that is efficient and all inclusive.’ He thinks that government should not fear the democratisation of the KBC. ‘In fact their worry should be in KBC being made irrelevant.’ Muthoni Wanyeki,132 the executive director of the Kenya Human Rights Commission, points out that for a brief period after 2002, a concerted effort was made to transform the KBC into a public broadcaster, and coverage did become markedly less biased towards government. The broadcaster got new management who seemed professional: ‘Interest in KBC returned when it began to win back audiences – as the opinion polls showed at the time – and generated revenue to finance its operations through a series of reforms. However the KBC also had to compete for advertising.’ Wanyeki recommends that the KBC be reformed through legislation that sets it up as a public broadcaster, de-linking it from the executive, with clear procedures for appointing its board, and with a complaints desk/commission. Lawrence Mute,133 a commissioner with the Kenya National Commission on Human Rights, feels that the KBC experienced its greatest moment during the referendum on a new constitution in 2005: ‘It was as if KBC was trying to be as independent as it could be as circumstances allowed. Government allied politicians blamed the KBC for government’s loss on the referendum. And compared to other media organisations, say [the commercial TV station] Citizen, KBC was more objective.’ During the 2007 general elections, however, Mute goes on to say that the ‘KBC toed the government
130 131 132 133 Ibid. Interview with Njuki Githethwa, Nairobi, 30 January 2008. Interview with Muthoni Wanyeki, Nairobi, 28 January 2008. Interview with Lawrence Mute, Nairobi, 20 March 2008.

110

P U B L I C BROADCASTING IN AFRICA: KENYA

line’. He is of the opinion that Parliament should be asked to fund the KBC for it to carry programming that may not be commercially viable, but which is of benefit for the public, for example, dramas, historical programmes, and reading of novels for the blind. ‘This may not be exciting to advertisers, but is very relevant to Kenyans.’ He gives the example of US Public Radio which has programmes that sound obscure but are very interesting. Mitch Odero,134 at the time of the interview the arbitration chair at the Media Council and a veteran journalist, agrees that the ‘KBC needs to operate like the BBC where programmes can be aired not on the basis of commercial value but for public value’. Presently, it has to solicit advertising and is open to interference from big advertisers. In future, he says, the KBC should be fully funded by tax payers. Only then will it be serving the interests of the public and not advertisers: ‘At the moment there is no distinction between, say, KBC and Citizen TV.’ A study of the BBC World Trust135 on the role of the media in the 2007 elections and the ensuing period of post-election violence points out that the KBC has been unable to match trust and respect with its reach and penetration. If it had, it would have been in an ideal position to develop public debate and inform public understanding across political and community lines. It could have focused national debate on the underlying political causes of the tension driving the conflict, and played a critical role in facilitating a genuine democratic discourse that might have convinced frustrated, angry or fearful people that their voices were being heard and reflected in a national public debate, not simply a polarised political one. ‘Given the political climate of recent months and years, such a role by an independent, credible public service broadcaster could potentially have made a major difference, particularly outside of the main urban centres.’ The European Union (EU) election observers in their report136 also found that the KBC failed to fulfil even its minimal legal obligations as a public service broadcaster set out in the Kenya Broadcasting Corporation Act as well as in international and regional standards. Henry Makhoha,137 controller of radio at the KBC, on the other hand, defends his Corporation. The negative image, he thinks, is not of the KBC’s own making: ‘Competitors of the KBC and people’s attitudes portray KBC as government controlled.’ He says that this negative campaign has overshadowed the positive aspects of the public service. The KBC’s former company secretary Hezekiel Oira138 is of the opinion that changing the perceptions of audiences is a difficult task. Unless legislation is reformed
134 Interview with Mitch Odero, 13 February 2008. 135 Policy Briefing #1 The Kenyan 2007 elections and their aftermath: The role of media and communication, BBC World Service Trust, April 2008. 136 EU Election Observation Mission: Kenya, 27 December 2007, General Elections. 137 Interview with Henry Makhoha, controller of Radio KBC, 6 March 2008. 138 Interview with Hezekiel Oira, former corporation secretary, KBC, Nairobi, 19 March 2009.

BROADCASTING REFORM EFFORTS

111

to enable the KBC to operate as a true public broadcaster, current audience attitudes towards it may remain the same.

2

Current reform efforts

In 1997 an Inter Parties Parliamentary Group (IPPG) initiated reforms geared towards creating a level playing field for all parties participating in the 1997 general elections. Of key significance was the requirement for the KBC to give equal treatment to the ruling party and the opposition during the official campaign period. It had previously given only favourable coverage to the ruling party while wholly ignoring, or reporting unfavourably on, the opposition. The topic of broadcasting reform again moved high up on the public agenda as a result of the conduct of the media during the run-up to the 2007 elections and the post-election violence of 2008. The vernacular FM stations in particular were accused of fanning sectarian violence and calls were subsequently made to rein in such stations through legislation. The KBC has frequently been criticised for conducting itself like a state broadcaster and not like a public broadcaster. There are continuous calls for the KBC to be transformed into a true public broadcaster. Several attempts were made over the past few years to promulgate new broadcasting legislation, but it took until December 2008 for Parliament to pass the Kenya Communications (Amendment) Act 2008. The amended law provoked enormous controversy and street protests only in early 2009 – after the fact, when the law was already in place. This seems typical for the sluggish engagement of the media fraternity in media issues, as the African Media Barometer (AMB)139 says in its 2009 report:
Civil society and lobby groups are active in advancing media causes but there is no reciprocity on the part of the media. This is partly because of media self-censorship, cautiousness in the interests of media owners [sic], and other limitations. … [M]edia practitioners do not engage meaningfully. They hardly even read media laws. At best, they only ‘cover’ events discussing media law but do not participate in the events. In this regard, they behave like ‘fire extinguishers’ who rush to the ‘scene’ of the issue when it has exploded in their own face. A good example is the street protests early in 2009 over the Kenya Communication Amendment Act of 2008, which by the time journalists took action, had already reached the final stage of presidential assent.
139 African Media Barometer, op.cit, pp. 20–22.

112

P U B L I C BROADCASTING IN AFRICA: KENYA

The AMB further noted:
The Communication Commission of Kenya (CCK) has in the last four years or so invited stakeholders to discussions on draft policies and legislation, for example, on broadcast legislation. Here it has been noted that media stakeholders make only [a] ‘technical appearance’ with little commitment and professional input. There is a fallacy that law making is for lawyers, and media practitioners take a backseat.

Two years earlier, in 2007,140 the AMB had identified major obstacles to meaningful change, a list which still seems to be valid even in 2011:
• Lack of awareness by parliamentarians on the relationship between freedom of information, mass media, democracy, governance and national development … Media owners focus on business interests and this precludes [an] objective view of the role of mass media in society. Lack of partnership between media and civil society. … Partnerships would …. focus on sharing of resources and expertise, collaborative lobbying and collaboration with the government on policy issues.

• •

3

Conclusions and recommendations

The Kenya Broadcasting Corporation is widely seen as a state broadcaster that acts as a mouthpiece for government. Reform efforts, especially during the period from 2003 to 2006, have failed because politicians across the spectrum apparently prefer the status quo. Of particular concern is the role of the major media houses, which seem to be content with the current state of affairs and are hesitant to tackle the issue of farreaching reforms because these could mean questioning their commercial (monopoly) standing. Also, of course, they have no interest in changing the KBC into an independent, i.e. more attractive – and thus more competitive – broadcaster. As a result media lobby groups and practitioners who are dependent on these commercial media houses will not engage fully in the reform efforts. In view of the new constitution which demands an independent and impartial KBC (see chapter 6), however, there is now a window of opportunity for a major and
140 African Media Barometer, op.cit, p. 29.

BROADCASTING REFORM EFFORTS

113

meaningful reform effort to transform the state into a truly public broadcaster. The observation of the BBC report141 in respect of the violence in early 2009 should be taken to heart: If the KBC had played its role as a public broadcaster, ‘it would have been in an ideal position to develop public debate and inform public understanding across political and community lines. … Given the political climate of recent months and years, such a role by an independent, credible public service broadcaster could potentially have made a major difference, particularly outside of the main urban centres.’

recommendations
There is an urgent need to identify civil society groups that recognise the pivotal role of public broadcasting in shaping a peaceful and democratic future for Kenya and are willing to form an ‘Alliance for Broadcasting Reform’. Such an alliance should: • Develop policy papers for the reform of the broadcasting regulator and the KBC as well as a draft bill for new KBC legislation; • Involve other civil society groups such as churches, trade unions and human rights organisations in the development of campaigns, with the aim of bringing about a broad-based coalition for broadcasting reform; • Lobby parliamentarians on the essential role of free media in a functioning democracy and the importance of democratic broadcasting reform; • Initiate panel discussions on broadcasting issues throughout the country; • Urge the KBC to allow and facilitate free debate on the role and future of the Corporation on its airwaves.

141 Policy Briefing, op.cit.

10
Overall Conclusions and Recommendations

In 2010 Kenya enacted a new basic law which guarantees freedom of expression and the media according to international standards and is in line with the Declaration of Principles on Freedom of Expression in Africa adopted by the African Commission on Human and Peoples’ Rights (ACHPR) in 2002. The Declaration says in its clause I(1):
Freedom of expression and information, including the right to seek, receive and impart information and ideas, either orally, in writing or in print, in the form of art, or through any other form of communication, including across frontiers, is a fundamental and inalienable human right and an indispensable component of democracy.

Article 34(5) of the new constitution, though, seems to be at variance with the principles expressed in the Declaration and ignores best practice in Africa and beyond. The article provides for a statutory media regulator. Clause 9 of the Declaration, on the other hand, stipulates the following with regard to media regulation:
Any regulatory body established to hear complaints about media content, including media councils, shall be protected against political, economic or any other undue interference. Its powers shall be administrative in nature and it shall not seek to usurp the role of the courts.

The Media Act 2007, which established a statutory media council supported by the media industry, attempted to provide for a semblance of self-regulation of the media combined with the possibility of recourse to the courts to enforce decisions. The Media Bill 2010, while meant to bring this act in line with the new constitution,

OVERALL CONCLUSIONS AND RECOMMENDATIONS

115

greatly strengthens the role of government in the council. It could thus be seen as incompatible with the new constitution, which stipulates that such a council should be independent from government. Some legal provisions in other pieces of legislation, either old or new, are at variance with the overarching guarantee of freedom of expression and freedom of the media espoused by the new constitution (see below). The development of both the commercial and the community broadcasting sector in Kenya over recent years has been impressive. The clearly dominant sector, though, is commercial broadcasting. Private radio and television stations are owned and controlled by powerful media organisations and business persons, many of whom are also active in the print media field. Concentration of ownership in the broadcasting industry as well as cross-media ownership endanger media diversity. Community broadcasting is now recognised as a third sector of broadcasting but is not actively promoted by the state in any way. The proliferation of religious-based radio stations is a point of concern, especially in regions where they seem to be the only easily accessible source of information. The switch-over from analogue to digital broadcasting will bring further challenges to the broadcasting industry. The deadline of 1 July 2012 which the government set itself seems very tight, given the fact that digital migration will require considerable capital investment on the part of all broadcasters as well as new legislation and regulation for the licensing of television operators. As far as consumers are concerned, there are no clear policies yet on the provision of set-top boxes necessary for the reception of digital television signals to ensure that the poor will also continue to have access to television in the digital age. The Communications Commission of Kenya (CCK) will play a key role in developing all the necessary regulations for the digital era. It was set up under the Kenya Communications Act of 1998, amended by the Kenya Communications (Amendment) Act of 2008. Both these pieces of legislation do not comply with the precepts of the new constitution, which says that broadcasting regulation should be ‘independent of control by government, political interests or commercial interests’. The Independent Communications Commission of Kenya Bill (2010) seeks to guarantee the Commission’s independence but still falls short in a number of respects, especially in regard to the appointment process for commissioners, which does not protect the body against control by government and political interests. The Kenya Communications (Amendment) Act of 2008 and the Kenya Communications (Broadcasting) Regulations, 2009, issued by the minister for information and communication, recognise the three-tier-system of broadcasting: public, private and community. Most of the provisions in these pieces of legislation follow best practices, but there are some sections which raise questions, in particular

116

P U B L I C BROADCASTING IN AFRICA: KENYA

when reference is made to a ‘programme code’ and a government-dominated ‘broadcasting content and advisory council’ tasked with the administration of that code and entitled to impose penalties for the breach of the code. Proposed limitations for the ownership and control of private broadcasting are also questionable. The Kenya Broadcasting Corporation – both by law and in practice – is a broadcaster owned and controlled by the government and serving the interests of the government. The KBC’s board of directors is appointed by government and includes government officials. The minister responsible for broadcasting and information appoints the managing director and is entitled to make regulations on how the broadcaster is to carry out its work. This type of governance is wholly incompatible with the objectives expressed in clause VI of the African Declaration of Principles on Freedom of Expression, which states, among others:
State and government controlled broadcasters should be transformed into public service broadcasters, accountable to the public through the legislature rather than the government, in accordance with the following principles: • public broadcasters should be governed by a board which is protected against interference, particularly of a political or economic nature; • the editorial independence of public service broadcasters should be guaranteed; […]

Even more importantly, the present governance model – and the absence of editorial independence in particular – clearly contravenes the country’s new constitution, which stipulates that all state-owned media must be independent and impartial. The KBC’s mandate – as formulated in the Kenya Broadcasting Corporation Act – is ‘to assume the Government functions of producing and broadcasting programmes or parts of programmes by sound or television’. In line with this mandate, the KBC is organised much like the civil service, with its strict hierarchies and top-down lines of command. The KBC presently relies almost entirely on income from advertising and sponsorship. This dependence opens it up to interference from commercial interests. Support from the government is granted on an ad hoc basis. Funding is also obviously inadequate, given that the corporation is not able to pay its running costs and is drowning in debt. The Broadcasting Regulations 2009 (which have not yet taken effect) stipulate that the KBC’s public broadcasting services be no longer funded by advertisements and sponsorship but mainly by government grants and cross-subsidisation from its

OVERALL CONCLUSIONS AND RECOMMENDATIONS

117

commercial services. Experience in other countries has shown that such a funding model does not generate sufficient income, especially in smaller economies. Both the present and future funding models contradict the Declaration of Principles on Freedom of Expression which says in its clause VI that ‘public broadcasters should be adequately funded in a manner that protects them from arbitrary interference with their budgets’. The programmes of the KBC are a reflection of its mandate to be a provider of government information and its organisational structure follows the civil service model. In terms of quantity of information, the KBC has more local and more representative public-interest programmes. The Corporation has the advantage of having regional offices that gather information from the grassroots. A mixed blessing is that they get, and use without checking, information from the government-controlled Kenya News Agency (KNA). Commercial stations do not have this kind of infrastructure. Many of them do offer public-interest programming. They would like to offer more, but the production of such programmes is expensive and they need to cover their overhead costs as well as survive in a competitive market. The KBC has a wider range of languages in its programming than private stations, as demanded by its mandate as a public broadcaster. KBC TV programming besides the news bulletins, however, is dominated by foreign productions. KBC news bulletins comprise to a large extent of items and stories produced and delivered by the government. These are broadcast without any editing. The result is that the bulletins are characterised by government voices and officialdom. Items which are outside the expected political mainstream are the exception and controversial issues are avoided. The news coverage of the private stations monitored for this study (which seem to be representative for the entire commercial sector) is more varied and guided by newsworthiness rather than political considerations. Consequently the trust in commercial broadcasting stations is significantly higher than in KBC channels because the KBC’s organisational and political association with government has eroded its credibility. Despite this, the Corporation still has the capacity to become a source of news and information credible to all sectors of society, broadcasting in people’s own language(s) and reflecting their principal concerns. At the moment though, it has to balance between the ideals of a truly public broadcaster independent from political and commercial influences on the one hand, and the requirements of the law, on the other, establishing it as a provider of government information serving under the thumb of politicians desperate for positive coverage.

118

P U B L I C BROADCASTING IN AFRICA: KENYA

The programme schedules of the commercial broadcasters reviewed are wellstructured and easily recognisable for the audiences: viewers and listeners know what they can expect at any time of the day. In contrast, the schedules of the KBC follow the old-fashioned model of ‘boxes’ for the various offerings, which seem to reflect the structure of editorial desks. The Kenya Broadcasting Corporation is widely seen as a state broadcaster that acts as a mouthpiece for government. Reform efforts, especially during the period from 2003 to 2006, have failed because politicians across the spectrum apparently prefer the status quo. Of particular concern is the role of the major media houses which seem to be content with the current state of affairs and are hesitant to tackle the issue of farreaching reforms because these could mean questioning their commercial (monopoly) standing. Also, of course, they have no interest in changing the KBC into an independent, i.e. more attractive – and thus more competitive - broadcaster. As a result media lobby groups and practitioners who are dependent on these commercial media houses will not engage fully in the reform efforts. In view of the new constitution which demands an independent and impartial KBC (see chapter 6), however, there is now a window of opportunity for a major and meaningful reform effort to transform the state into a truly public broadcaster. The observation of the BBC report142 in respect of the violence in early 2009 should be taken to heart: If the KBC had played its role as a public broadcaster, ‘it would have been in an ideal position to develop public debate and inform public understanding across political and community lines. … Given the political climate of recent months and years, such a role by an independent, credible public service broadcaster could potentially have made a major difference, particularly outside of the main urban centres.’

Recommendations
Media legislation and regulation
Media regulation • While the existence of a statutory media council goes against the Declaration of Principles on Freedom of Expression in Africa and best practice elsewhere on the continent, it needs to be recognised that such a body has been made
142 Policy briefing, op.cit.

OVERALL CONCLUSIONS AND RECOMMENDATIONS

119

obligatory by the new constitution - which is unlikely to be changed in the near future. With this in mind, the Media Bill 2010 should be reviewed to ensure that as many elements of self-regulation as possible are included by: – developing a formula for membership of and appointment procedures which guarantee the independence and integrity of the Council and ensure that both the media and the public at large are represented on it; – introducing mechanisms to procure funds from the industry for the Council to avoid dependence on the state. • There should be no registration of journalists by any statutory body. • Publications should not be required to register with a special registrar or to pay any bond before going into business. It is sufficient for them to comply with the Companies Act. The Books and Newspapers Act should therefore be repealed. Law reform in regard to legislation affecting the media • The appropriate media lobby groups should initiate an audit of all pieces of legislation affecting the media which need to be reviewed in order to conform to the new constitution. • Foremost among such legal provisions in need of review are: – sections 194 to 199 of the Penal Code whereby defamation should be de-criminalised and become a matter of civil law, and the amounts of damages imposed must be limited by law. – section 67 of the Penal Code, which gives special protection to foreign dignitaries, must be repealed. – sections 66 (false statements) and 77 (subversion) must be reviewed to avoid any abuse of these provisions. – section 62 of the National Cohesion and Integration Act 2008 with its broad definition of incitement endangers freedom of expression and must be brought in line with the constitution. – section 2(d) of the Preservation of Public Security Act, which empowers the president to limit freedom of expression, must be repealed. Access to information • Freedom of information legislation needs to be developed with the full participation of civil society in order to give effect to the right to access to information as guaranteed in article 35 of the new constitution.

120

P U B L I C BROADCASTING IN AFRICA: KENYA

broadcasting landscape
• A policy on media concentration needs to be developed and existing legislation amended (see chapter 5) with the objective to avoid or reduce overconcentration of ownership in the media. Such a policy should recognise the realities on the ground and introduce anti-monopoly measures in a way which does not endanger the economic viability of the present media houses while at the same time creating greater diversity of ownership. • Opportunities should be explored for promoting the establishment of commercial radio stations whose programming is oriented towards more diverse broadcasting and services in languages other than English. Existing commercial radio and television stations should be encouraged to offer more public service content. • The creation of a media development agency should be considered. Such a body would promote community broadcasting and other small local media and be funded by contributions from the media industry and government. • The Kenya Broadcasting Corporation should invest in the expansion of its FM transmitter network to utilise all the frequencies allocated to it as soon as possible.

digitalisation
• Government should be urged to: – Develop a clear roadmap towards the deadline of 1 July 2012 in consultation with all stakeholders – broadcasters, signal distributors and consumers in particular. If this deadline is too tight, a new, more realistic date should be set as soon as possible to make rational planning possible. – Step up public awareness for the digital migration process, targeting the general public, media practitioners and other professionals. – Embark on a consumer awareness programme to warn the public against purchasing soon to be obsolete analogue television sets. – Develop a suitable subsidy scheme for set-top boxes (STBs) to avoid the risk of vulnerable communities being permanently switched off due to the unaffordability of such devices. Set suitable specifications for imported STBs. In addition government should waive import duties on them.

OVERALL CONCLUSIONS AND RECOMMENDATIONS

121

Devise measures to ensure that importers offer television sets that are digital, ready to receive signals without STBs, to prevent people from investing unnecessarily in equipment that will soon be obsolete. – Ensure protection for vulnerable media such as community television stations when setting fees payable to the signal distributor. – Consider zero-rating tax on digital broadcasting equipment to enable broadcasting houses to purchase more digital equipment. This facility could be granted for a limited period. • The media industry and other stakeholders should prepare themselves for the development of a new licensing regime for television and develop suitable models. • The new Independent Communications Commission of Kenya, once established, should organise a round table with all stakeholders – broadcasters, signal distributors and consumers – to discuss a framework for a new licensing regime for television in the digital age.

broadcasting legislation and regulation
Regulatory autonomy and independence • The new Independent Communications Commission of Kenya (ICCK) as envisaged by the Independent Communications Commission of Kenya Bill (2010) should be enabled to live up to its title: it must be a truly autonomous and independent regulatory body which reports to Parliament and not to the Minister responsible for Information. • The Commission should be representative of Kenya’s diversity with regard to, among others, profession, gender, ethnicity and faith. • The appointment procedure for members of the Commission should be open and transparent, involve the effective participation of civil society/nonstate actors, and should not be controlled by any particular political party. The appointments body should invite the public through advertisements to nominate candidates, and publish the full list of persons nominated as well as the short-list of candidates to be interviewed in public. • The Public Service Commission should not have a role in appointing members of the ICCK. • The security of tenure of members should be guaranteed to limit the influence of political authorities on their decisions.

122

P U B L I C BROADCASTING IN AFRICA: KENYA

Media concentration • The Commission should urgently embark on a thorough enquiry into media concentration, including cross-media ownership, in Kenya. The enquiry should take the form of public hearings including all stakeholders and interested civil society groups/non-state actors. The policy to be drawn up on the basis of this enquiry should promote effective competition while at the same time recognising realities on the ground. Anti-monopoly measures should be carefully crafted so as not to endanger the economic viability of existing media houses nor serve to maintain the current monopolistic ownership, but to create and encourage greater diversity of ownership. Licensing issues • The Commission should review its Frequency and Channel Plan to make sure that frequencies are indeed shared equitably between the various sectors of broadcasting. This plan must be made available to the general public. The allocation of platforms for digital television must follow the same principle. • The Commission should set realistic and reliable broadcast licensing periods designed to allow for longer-term planning and encourage investors in the broadcast industry who may be wary of committing themselves while facing the risk of political interference in frequent renewals. • The Commission should publish information on the availability of broadcasting frequencies regularly. Applications for frequencies should similarly be made public and any interested person be invited to comment. • The Broadcasting Regulations must be reviewed. It is not up to the responsible minister to make such detailed prescriptions for the sector. Regulatory provisions like these should either be made by law or issued by the Commission. A review of the Regulations needs to address specifically: – their detailed provisions on a programme code and professional standards – these matters should be the responsibility of the broadcast media themselves; – the limitation on revenue sources for community broadcasting which endangers their financial sustainability. • The Commission should – after extensive public consultations – draw up a table of local content quota for the various sectors of broadcasting. • The broadcasting industry should call for the amendment of provisions in the Broadcasting Act establishing the Broadcasting Content and Advisory Council to accommodate effective participation of civil society / non-state actors with the objective to set up an independent body.

OVERALL CONCLUSIONS AND RECOMMENDATIONS

123

the Kbc: legislation and organisation
• A new Kenya Broadcasting Corporation (KBC) Act must be passed as a matter of urgency to bring the broadcaster in line with the new constitution by transforming the present state broadcaster into a public broadcaster that serves the public interest. The act must outline clear governing structures designed to shield the broadcaster from political, commercial and other partisan interference and undue influence brought to bear by other powerful forces in society. • The KBC should be governed by a board established and acting according to the following principles: – Appointment procedures should be open, transparent and free from political interference and allow the public to nominate board members of their choice. – The board should be representative of Kenya’s diversity with regard to, among others, profession, gender, ethnicity and faith and include members with the necessary skills and competencies. – The appointment procedure for members of the board should be open and transparent, involve the effective participation of civil society/non-state actors, and should not be controlled by any particular political party. The appointments body should invite the public through advertisements to nominate candidates, and publish the full list of persons nominated as well as the short-list of candidates to be interviewed in public. – Persons who are office bearers with the state or political parties or have business interests in the media industry should not be eligible for board membership. – The role of the board role should be clearly set out in law and its main responsibility should be to ensure that the public broadcaster is protected against undue political or commercial influences and fulfils its mandate in the public interest. – The board should appoint the managing director and other senior managers. The management should be directly accountable to the board. – The board should not interfere in the day-to-day decision making of the broadcaster especially in relation to broadcast content and respect the principle of editorial independence.

124

P U B L I C BROADCASTING IN AFRICA: KENYA

• The new KBC Act should guarantee editorial independence for the KBC. • The new KBC should design a modern organisational structure which cuts out old-fashioned civil service hierarchies. • Management and journalists at the KBC need training on the concept of public broadcasting, focusing on: – principles and values of public broadcasting; – the role of journalists and management in a public broadcaster; – challenges facing public broadcasters in the era of commercialisation and competition; – the role of public broadcasting in the digital era.

the Kbc: funding
The basic precondition for any successful reform of funding is the passing and implementation of a new KBC Act, which would transform the state into a credible public broadcaster offering quality programming designed to meet diverse audience needs. • In view of the present financial status of the KBC it is recommended that – the new board established by the new act commission a thorough audit of the corporation’s financial status by an independent accounting firm and make this audit public; – on the basis of a new programme policy the organisational structure of the KBC be reviewed and reformed, in particular regarding administrative processes and expenses; – on the basis of the new programme policy and organisational structure, a business plan be developed which reflects the financial needs of the KBC and potential sources of revenue. • Any new funding model must provide stable, predictable multi-year funding and allow the broadcaster to plan and implement the necessary investment in programming and operational improvements. • In regard to revenues from the government, it is recommended that – an independent panel of experts determine the amount of subsidies needed by the KBC over a three-year period to fulfil its public broadcasting mandate; – parliament fund the public broadcaster directly (and not through a ministry or department) on the basis of the amount determined by the panel of experts.

OVERALL CONCLUSIONS AND RECOMMENDATIONS

125

• It is further recommended to consider and research the possible introduction of a licence fee for public broadcasting services in Kenya. • As it seems unrealistic to discontinue all advertising on KBC public broadcasting services it is recommended that: – the KBC develop clear and strict guidelines on soliciting advertisements and conditions for accepting advertisements and programme sponsorships that will safeguard the broadcaster’s editorial independence and clearly separate the responsibilities of editorial and marketing departments; – the new independent broadcasting regulator embark on a process of public consultation with the objective to set appropriate limits to advertising and sponsorship on the KBC. After the enactment of new legislation for the KBC and the establishment of a new board, the government should take over all debts on the corporation’s books to enable the broadcaster to make a new start with a clean slate.

Programming
New legislation for the KBC is a pre-condition for any major improvement of the KBC’s programming and boosting of its credibility. As soon as a new KBC Act is in place and implemented, the new independent board should: • Conduct research and reform the existing programme schedules to bring them in line with modern broadcasting in order to attract audiences and keep them loyal to the station; • Reorganise the Corporation to enable editors and programme producers to implement the new schedules; • In a process of public consultation, consider a policy on local content for its television channel with the objective of increasimg local productions; • Develop a strategy to allocate more broadcast time to the various languages in Kenya; • Encourage partnerships for co-productions with independent producers; • Urge the government to discontinue the practice of having dedicated press units and leave the job of producing news and current affairs stories to the KBC, with the funds previously spent on this purpose to be channeled to the broadcaster;

126

P U B L I C BROADCASTING IN AFRICA: KENYA

• Ensure that the newsroom treats and selects information from government institutions such as the Kenya News Agency with the same professional care it exercises with regard to that from any other sources; • Seek to extend the countrywide network of KBC reporters to decrease the broadcaster’s dependency on government sources; • Develop a policy to cater for people with special needs, for example, the use of sign language in certain programmes; • Initiate a comprehensive training programme for KBC staff to enable them to fulfil the mandate of a public broadcaster in the age of digital television.

campaign for broadcasting reform
There is an urgent need to identify civil society groups that recognise the pivotal role of public broadcasting in shaping a peaceful and democratic future for Kenya and are willing to form an ‘Alliance for Broadcasting Reform’. Such an alliance should: • Develop policy papers for the reform of the broadcasting regulator and the KBC as well as a draft bill for new KBC legislation; • Involve other civil society groups such as churches, trade unions and human rights organisations in the development of campaigns, with the aim of bringing about a broad-based coalition for broadcasting reform; • Lobby parliamentarians on the essential role of free media in a functioning democracy and the importance of democratic broadcasting reform; • Initiate panel discussions on broadcasting issues throughout the country; • Urge the KBC to allow and facilitate free debate on the role and future of the Corporation on its airwaves.

Sign up to vote on this title
UsefulNot useful