Over the last 17 years, the media landscape has changed dramatically.

Access to information has

increased with the arrival of vernacular radio stations at the beginning of the Kibaki tenure in 2002, and
with the democratization of social media in the 2010s.

The market, once booming, is now under intense pressure with advertisers shying away from traditional
local media to focus on international often online based platforms, leaving newsrooms with less money
to operate. As a result, the content produced is more consensual.

From pre-independent Kenya to date, the media development trajectory has mirrored the country’s
history from colonial times to present. With significant print, television, radio, online and social media
offerings, the sector is also enriched by the presence of media associations and international media
support organizations.

Although most Kenyans are comfortable with the quality of news and information they get from the
media; fake news,79per cent of Kenyans say they receive it, production quality, and the topics, depth
and accuracy of the content offered have emerged as key content quality challenges worthy of in-depth
attention. Also worrying is the decline in data journalism which peaked between 2012 and 2015. It could
and should, improve given the COVID-19 pandemic.

Further, the last decade has witnessed an erosion of the economic vibrancy of legacy media in Kenya.
For one, newspaper circulation has been dropping since 2013, while television took a big hit in 2014
when the digital migration began. Contrary to common belief that radio is the main source of news and
information, it has given way to social media.

Laws governing media in Kenya are fragmented and exist in different sections of civil and criminal laws.
The three sources of press law in Kenya include the Constitution of Kenya, the statutory law and the
Common law. The Constitution of Kenya is the supreme law of Kenya and guarantees the right to
freedom of expression: However, it does not mention freedom of the press and other media specifically;
provides limitations of the fundamental right and freedom under vague circumstances thus allowing for
violation of the same right.

Legally, the freedom of the media is guaranteed in the Constitution of Kenya 2010 under Article 33, 34
and 35. However, practically, the media in Kenya is governed by various laws fragmented within
different sections of the civil and criminal law making the constitutional guarantees inimical to freedom.

The relevant sections of the statutory law of Kenya, some of which are controversial, that deal with
media (mainstream media, vernacular media, community media and even new media such as SMS
messages and blogs) include;

a) The Defamation Act Cap 36

b) The Penal Code Cap 63
c) The Books and Newspaper Act Cap 111
d) Copyright Act Cap 130
e) Preservation of Public Security Act 57
 f) Public Order Act Cap 56
g) Films and Stage Plays Act Cap 222
h) Chief’s Authority Act Cap 128
i) Official Secrets Act Cap 187 of 1968
j) Communication commission of Kenya Act of 1998
k) Kenya Broadcasting Act Cap 221
l) ICT Act of 2007
m) Media Act of 2007

The key media regulators are the Ministry of Information and ICT, Communication Commission of Kenya,
Media Council of Kenya and Kenya Film Commission.

Kenya today, the greatest force shaping media execution is technology. The media landscape in Kenya
today boast a rich serving of print, broadcast and online platforms. Information production and
distribution is largely in private sector hands although, to significant extent, under keen government
watch.

The Kenya Film Classification Board (KFCB) established under Section 11 of the Films and Stage Plays Act,
Cap 222 Laws of Kenya, is mandated under section 15 thereof to, inter alia, regulate the creation,
broadcasting, possession, distribution and exhibition of films through examining and classification of
films and poster thereof submitted to it under the Act, imposing age restriction on viewership; giving
consumer advice with due regard to the protection of children and women against sexual exploitation or
degradation in cinematograph films and on the internet.

The Communication Act regulates the media sector in Kenya, in so far as the same relates to inter alia,
licensing of broadcasters, and granting of frequency spectrum subject to its availability. The CA derives
its mandate under Section 5 of the Kenya Information and Communication Act and part IVA of the
broadcasting regulation 2010.

The CA is mandated, under section 46A of the KICA to;

a) Facilitate and encourage the development of Kenyan programmes.

b) Administer the broadcasting content aspect of this act
c) Develop media standards
d) Regulate and monitor compliance with those standards.

HOW MASS MEDIA OPARATE IN KENYA

Mass media in Kenya includes more than 91FM stations, more than 64 free to view TV stations, and
unconfirmed number of print newspapers and magazines. Publication mainly uses English as their
primary language of communication, with some media houses employing Swahili. Vernacular or
community based language are commonly used in broadcast media; mostly radio.

The media in Kenya is regulated by a statutory body called the Media Council of Kenya. The Media
Council of Kenya is an independent national institution established by the Media Act of 2007 as the
leading institution in the regulation of media and the conduct and discipline of journalists, register
media establishments, handle complaints from the public and create and publish yearly media audit on
the media freedom in Kenya among other things.

During accreditation the journalists agree to adhere to the code of conduct and practice of journalism in
Kenya, which was created by media practitioners and stakeholders with the view of making journalism in
Kenya a more professional and respectable field.

The media is also regulated by the Kenya Film Classification Board, a state corporation under the
ministry of information, communication and Technology which is mandated by the Films and Stage Plays
Act Cap 222, to regulate the creation, possession, broadcasting, exhibition, and distribution of films in
Kenya.

NTV, KTN, Citizen TV are the biggest TV stations in Kenya in terms of coverage and viewers. Recently
entertainment TV ventured in the Kenyan airspace with the inclusion of Kiss TV, a 24-hour Music TV
station, and Classic TV which airs African Content in terms of movies, programs and music. Inooro TV
and Kameme TV are the biggest vernacular TV station that broadcast their programs in Kikuyu. Digital TV
is also available in Kenya with the likes of DSTV and Smart TV.

More than 100 applications for radio and television licenses are pending before the Communication
Commission of Kenya, which is the independent regulatory authority for the communications industry in
Kenya. Its role is to license and regulate telecommunications, radio-communications, and postal/courier
services in Kenya.

The applicants submit their applications and supporting documents, together with the non-refundable
application fees. The Communications Licensing Committee then vets the applications and may
recommend that a license be awarded or not to be awarded; or the applicant be subjected to further
process prior to being recommended for a license award.

The CA promises to process broadcasting services license within 60days, which include a 30day period
when a Kenya Gazette’ intention to license’ publication runs and within which period the CA receives
any representation or objections and may require the applicant to provide any clarification or
explanation when sought.

Upon payment of the license fee and acceptance of the license’s terms and conditions, the CA issues a
draft license together with a 6 to 12 month construction authorization permit to set up a station. Upon
completion, the CA inspects the station and if satisfied, issues a broadcasting license.

The fees presently payable for the broadcasting licenses include;

a) For Commercial FM radio license

The license duration will last for 5 years.

Application fee is Ksh.10, 000, payable after approval and before issuance of license.
Annual operating fee which is payable on or before 1 July of each year, a 0.5 per cent of annual turnover
or 100, 000, whichever is higher.

b) Subscription Management Service Broadcasting License

The License duration will last for 5 years.

Application fee is Ksh.10, 000 and the annual operating fee is Ksh. 100,000.

c) Terrestrial subscription Broadcasting Service( pay radio or television)

The license duration will last for 5 years

Application fee is Ksh.10, 000 and the annual operating fee is Ksh.100, 000

d) Internet Protocol Television (IPTV)( Radio or TV)

The license duration will last for 5 years

Application fee is Ksh.10, 000 and the annual operating fee is Ksh. 100, 000

e) Commercial Free-to-Air Television( on DTT platform)

The license duration will last for 7 years

Application fee is Ksh.10, 000 and the annual operating fee is Ksh.100, 000

f) Commercial Free-to- Air Radio( on DTT platform)

The license duration will last for 5 years

Application fee is Ksh.10, 000 and the annual operating fee is Ksh. 100, 000

g) Commercial FM radio license

The license duration will last for 5 years

Application fee is Ksh.10, 000 and the annual operating fee is Ksh. 100, 000

h) Satellite Subscription Broadcasting Service( Pay Radio or Television)

The license duration will last for 7 years

Application fee is Ksh.10, 000 and the annual operating fee is Ksh.100, 000

i) Cable subscription Television license

The license duration will last for 7 years

Application fee is Ksh.10, 000 and the annual operating fee is Ksh.100, 000
 j) Landing Rights Broadcasting Service

The license duration will last for 10 years

Application fee is Ksh.10, 000 and the annual operating fee is Ksh.12, 500

k) Community Free-to-Air Television( on DTT platform)

The license duration will last for 4 years

The application fee is Ksh.30, 000 and the annual operating fee is Ksh.30, 000

l) Community Free-to-Air Radio( on DTT platform)

The license duration will last for 3 years

The application fee is Ksh. 1000 and the annual operating fee is Ksh. 15, 000

m) Community FM radio

The license duration will last for 3 years

The application fee is Ksh.1000 and the annual operating fee is Ksh.15, 000

Frequency fees are charged separately where spectrum is utilized.

HOW BROADCAST MEDIA ADVERTISING REGULATED

Section 46I of the KICA obligates licensed broadcasters to; ensure that advertisements, either in the
terms of content, tone or treatment, are not deceptive or are not repugnant to good taste.

The obligations are further expanded by regulation No. 33 of the Kenya Information and
Communications regulations of 2010.

In addition to the foregoing, advertisements should also be congruent with the code of conduct for the
practice of journalism, provided for under section 45 of the Media Council Act and the second schedule
thereto.

The Code further defines the regulation of advertising in the broadcast media. Consequently the
watershed period between 5.00am and 10.00pm applies to advertisements that are required to be
suitable for family listening and viewing.

The code further prohibits the airing of advertisement of products or services that are not suitable for
children or that might cause physical, mental, psychological or moral harm, either in or adjacent to
children’s programme where children are likely to be part of the audience.
Licensed broadcasters are further required to ensure that advertisements aired on its station contain at
least 40 per cent local content footage.

COMPETITION LAW AND CONSUMER RIGHTS

In Kenya, the rights and responsibilities of consumers are enshrined in the Consumer Protection Act
2010. They are designed to ensure that consumers are provided with full information, including the
price of any product and service they may wish to purchase ensuring that they meet international
standards.

Consumer protection is a vital element in competition matters because consumers are the ultimate
recipients of goods and services within the market economy and are reliant on the market being free
from anti-competitive distortions.

Under the Kenya Information and Communications (Consumer protection) Regulations of 2010,
regulation 3(1) provides that a customer shall have the right to-

a) Receive clear and complete information about rates, terms and conditions for available and
proposed products and services.
b) Be charged only for the products and services they subscribed to
c) Where possible, select a service provider and service of the customer’s choice
d) Personal privacy and protection against unauthorized use of personal information
e) Accurate and understandable bills for products and services authorized by the customer, and to
fair prompt redress in the event of a dispute in the provision of the products and services
f) Protection from unfair trade practices, including false and misleading advertising and anti-
competitive behavior by licensees
g) Equal opportunity for access to the same type and quality of service as other customers in the
same area at substantially the same tariff limiting variations to available or appropriate
technologies required to serve specific customers.

Regulation 5(1) provides for creation of a customer care system by the media providers; a licensee shall,
within the period specified in its license or by the commission, establish a customer care system within
which customers can make inquiries and complaints concerning its service in such format and containing
such details as may be required by the commission within time prescribed in the license or within
reasonable time after the grant of the license, or may be specified by the commission and be available
upon commencement of provision of service to the public.

There are at least two important interests of the individual which press law seeks to protect. These are
the individual’s reputation and his property.

The reputation of the individual is protected by the law on libel, which is to be found in the Defamation
Act and the Penal code.
The burden of this law is that any person whose reputation has been injured by a published statement
may seek redress in the courts. If he/she can satisfy the court that he/she has been defamed, he will be
awarded an appropriate sum of money as compensation.

The Penal Code criminalizes the publication of defamatory matter under Section 197; ‘Any publication of
defamatory matter concerning a person is unlawful unless (a) the matter is true and it was for the public
benefit that it should be published; or (b) it is privileged…’ A newspaper that publishes defamatory
information runs the risk of paying damages, and also being prosecuted.

The class of private property protected by the aspects of law applicable to journalism is intellectual
property, which is protected by the Copyright Act. By this act, if an individual wishes to gain copyright
protection, he must reduce his idea to a material form. The moment the words are written, or the
melody transcribed, copyright comes into existence. The act protects, among other things, literary work,
musical works, artistic works, and cinematograph films, sound recording, broadcasting and programme-
carrying signals.

If any substantial part of a copyright work is reproduced without the permission of the copyright owner,
infringement has occurred. The remedies for infringement are damages, a criminal prosecution, an
injunction, and an account for profits. Copyright law restricts the journalist by enjoining him not to
publish information which falls within the realm of private property unless he had obtained prior
permission for so doing.

Article 46 of the Constitution of Kenya is the provision closely associated with competition matters as it
sets out certain consumer protection rights. It provides; consumers have the right-

a) To goods and services of reasonable quality

b) To information necessary for them to gain full benefit from goods and services
c) To protection of their health safety and economic interest
d) To compensation for loss or injury arising from defects in goods and services

The Competition Act of 2010 is the current principal piece of legislation concerning operation of
competition law in Kenya. The CA was ushered in through presidential acceptance on the 30 th of
December 2010 and the legislation entered into force on the 1st of August 2011.

The main aim of the Competition Act is;

“Promoting and safeguarding competition in the national economy and protecting consumers from
unfair and misleading market product and establishing the two dual organs which are the Competition
Authority and the Tribunal, prescribing the powers and functions of the two.”

VOK now KBC was established in 1964 by an act of parliament, it being a state corporation, it enjoyed
monopoly status for over three decades. Liberalization of airwaves in the 90’s saw the licensing of more
broadcast stations thus introducing competition in the industry. Radio has grown from 3 stations in 1990
to 140 in 2010.
Competition is much more intense in TV because most stations have a similar product offering.
According to the Kenya Communication Act,1998 Section 88(1), the dominance and monopoly of KBC
ended with the coming up of liberalization of the airwaves, thus regulation of the media houses has
since changed.

The fundamental regulatory functions, supervision and endorsement of broadcasting that used to be
under the control of KBC have now been transferred to Communication Council of Kenya. These changes
have in turn created a fertile ground for competition.

The restrictive trade practices, monopolies and price controls (Laws of Kenya Cap 504) of 1996,
considers monopolistic tendencies undesirables since it makes it possible for a company to take
exclusive control of information. Without a mechanism to check media excesses it would be dangerous
and inconsistent to the spirit of political pluralism and democracy.