STATE REGULATION VERSUS SELF REGULATION IN THE BROADCAST MEDIA

SALEM DICK LOROT STUDENT REGISTRATION NUMBER: 1008565

A project submitted to the Faculty of Law in Partial Fulfillment of the Requirements for the Degree of Bachelor of Laws

THE CATHOLIC UNIVERSITY OF EASTERN AFRICA FACULTY OF LAW

April 2010 Nairobi-Kenya

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DECLARATION

I, SALEM DICK LOROT, do hereby declare that this research is my original work and that to the best of my knowledge and belief; it has not been previously, in its entirety or in part, been submitted to any other university for a degree or diploma. Other works cited or referred to are accordingly acknowledged.

Signed:«««««««««««««««««««««. Date: ««««««««««««««««««««««

This project has been submitted with my approval as the university supervisor Supervisor: MR. NJARAMBA GICHUKI Signature: «««««««««««««««««««« Date: ««««««««««««««««««««««

With approval of the Dean Faculty of Law Catholic University of Eastern Africa Dean: ««««««««««««««««««««««. Signature: ««««««««««««««««««««.. Date: ««««««««««««««««««««««..

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DEDICATION

To the members of the Fourth Estate whose work oft-times go unnoticed or unappreciated.

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ACKNOWLEDGEMENTS

An exhaustive list of all that have lent me support in ways coincidental or incidental to this work is almost impossible. As part of the human family, I am tied to a complex web of individuals who have striven in more ways than one to support me even when they were not duty-bound. To Tororot, the God of the Rising Sun, you have shone your blessings on me even in my infirmities, where I merited not you proved to me, a mortal man, that you work in mysterious ways. Thank you Abba Father. To my supervisor, Mr. Njaramba, like a seasoned blacksmith you employed your art and skill in a gentle yet rigorous way in shaping this work. Your enlightening comments and suggestions were invaluable and all I can say is encapsulated in a Malayan proverb: One can pay back the loan of gold, but one dies forever in debt to those who are kind. To the Law Class 2010, your cheer and diligence was colossal and the bond that tied us together ennobled us to soar the heights of legal sojourn. May that intellectual appetite never plummet. To my loving mum, Paulina Maya Choram, you taught me to smile in calamity and keep hope alive and it is paying dividends. Soro yo iperur Tororot. To my brothers and sisters, Shivachi Kevin, Masheti Fobian, Lizzy Chemakal, Billy Porit and Jamila Cheptoo, I have walked the road in search of life¶s meaning and while I hold no answers it was worth the search. To Mrs Knobloch and family and brother Friedbert Tremmel, you sacrificed that I seek intellectual freedom. Sie haben geopfert, damit ich Erziehung suche. Sie haben mir nicht aus Pflicht aber Liebe für die Menschheit geholfen. Ich werde Sie in Gold aber durch Addierwert zu den Leben von Leuten nicht bezahlen And to my room-mate and friend Tiyan Joseph, close friend David Onyango and Karanja Francis, relatives and friends, thank you all for your support. iv

LIST OF ABBREVIATIONS African Charter MDDA ICASA PCSA American Convention European Convention KBC FCC CCK FRC UDHR ICCPR UNESCO African Charter on Human and Peoples¶ Rights Media Development and Diversity Agency Independent Communications Authority of South Africa Press Council of South Africa American Convention on Human Rights European Convention on Human Rights Kenya Broadcasting Corporation Federal Communications Commission Communications Commission of Kenya Federal Radio Commission Universal Declaration of Human Rights International Covenant on Civil and Political Rights United Nations Educational, Scientific and Cultural Organisation

KBS

Kenya Broadcasting Service

KTN

Kenya Television Network

OFCOM

Office of Communication

IBA

Independent Broadcasting Authority

SABC

South African Broadcasting Corporation iv

ABSTRACT

Regulation of the broadcast media remains a vexed issue. This is occasioned by the custodial role it performs on behalf of the public. There are certain regulating bodies which have been charged with the task of overseeing the proper functioning of the electronic media, viz: Communications Commission of Kenya and the Media Council of Kenya.

The powers of the Communications Commission of Kenya in prescribing a Programming Code needs to be properly defined and what constitutes a µProgramme Code¶ generally provided for. There is need to examine the independence (or lack of it) of the Commission. Similarly, areas for reform are suggested in this research.

Perhaps if there is one institution which needs proper examination then it is the Media Council of Kenya. This owes to the fact that it constitutes the second limb of media regulation, that is, selfregulation. This therefore calls to question the efficacy of the Code of Conduct for Journalists and the Mass Media.

In sum, these two institutions represent the two divides of regulation: Self-regulation and Stateregulation. Thus, their scrutiny help illuminate their composition, roles, challenges and suggested areas for reform. All these are conducted against the light of the collective Kenyan media experience.

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TABLE OF CONTENTS
Page

Declaration Dedication Acknowledgements List of Abbreviations Abstract
Chapter 1: Introduction

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1.0 Background to the study 1.1Statement of the problem 1.2Research questions 1.3 Hypothesis 1.4 Significance of the study 1.5 Literature Review 1.6 Organization of the study Chapter 2: The normative, legal and theoretical framework of freedom of expression 2. Introduction 2.1 International legal instruments 2.2 Normative theories 2.2.3 Authoritarian theory 2.2.4 Libertarianism 2.2.5 Social Responsibility theory 2.2.6 Soviet media theory 2.2.7 Development communication theory 2.2.8 Democratic participant theory

1 3 5 6 6 7 12

14 16 18 19 20 21 22 23 23

Chapter 3: Regulation of the broadcast media 3. Introduction 3.1 Media regulation 3.2 The Communications Commission of Kenya 3.3 The Media Council 3.3.1 Functions of the Media Council 3.3.2 The Code of Conduct for the Practice of Journalism in Kenya 3.4 Conclusion Chapter 4: Comparative analysis of regulation of broadcast media 4. Introduction 4.2 South Africa 4.2.1 The Independent Communications Authority of South Africa 4.2.2The Press Council of South Africa 4.3 The United States of America 4.3.1 The Federal Communications Commission 4.4 Conclusion Chapter 5: Summary, Conclusions and Recommendations Bibliography 36 37 37 38 40 40 42 25 26 28 31 32 32 34

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