Is there a law regulating programs aired before watershed hours? Some of the utterances captured by the news (including by politicians) are inappropriate for our children’s ears.
The broadcast ecology demands that certain rights and duties are protected and promoted in the interest dichotomy of audiences and broadcasters. This recognises the multiplicity of media avenues through which information is created, originated, processed, and disseminated. Therefore, as many laws could be applied to address the raised concerns, even as Kenya whips the balance that actualises and need not limit people’s right to freedom of expression. This country seemingly suffers the insanity of privileged impunity that is systemically driven and applauded, which then creates the inequality of legal accountability, contrary to Article 27 Clause (1) of the Constitution, which demands equality before the law. This is foundational to the argument that if laws were applied to punish, deter, and reduce socially unacceptable events, irrespective of whom it is directed, then regulating watershed programs and loose mouths would have been easy.
Freedom of expression is provided for in Article 34 of the Constitution. It gives every person the right of expression, including but not limited to seeking, receiving, and imparting information and ideas, besides artistic creativity, research, and academics. Clause (2) of this Article also provides what is uncatered for in the contextualised freedom of expression. This means that anything seen as propaganda, incitement to violence or harm, hate speech, or advocacy for hatred may be constituted as ethnic incitement or vilification of others, including any communication that entrenches discrimination. Clause 3 further demands that any person who exercises their freedom of expression right must respect the rights and reputation of others.
If Article 24 is deployed without being disproportionately reserved for a few seemingly influential individuals, it would appear that freedom of expression is not absolute. Its Clause (1) calls for the concept and principle of limitation. Limitations, however, should be derived from an open, democratic society where human dignity, equality, and freedom underpin its application. The limitation is allowable only if its fundamental purpose is not to enhance prejudice, demean, or prohibit other persons from enjoying their rights and primary freedoms.
While it is appreciated that the law may be construed to provide room for morality losses, where morals have a subjective connotation, it is sometimes only necessary that parents, caregivers, and guardians play a higher role, as expected in Article 53, Clause 1 Paragraph (e). The question of obscenity and indecency regarding information has been canvassed in Kenya’s High Court, and its provision in Section 84(d) within the Kenya Information and Communication Act, alongside section 181 of the Penal Code, has been determined unconstitutional.
In petition 214 of 2018, filed as Cyprian Andama v Director of Public Prosecution & another, the High Court found the provision in Section 84 (d) as too broad and vague as grounds to successfully lodge a claim. The judge went further to accuse this section of having not determined who was to be influenced by obscenity and indecency. It states, “Any person who publishes or transmits or causes to be published in electronic form, any material which is lascivious or appeals to the prurient interest and its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied therein, shall on conviction be liable to a fine not exceeding two hundred thousand shillings or imprisonment for a term not exceeding two years, or both.
The regulators and innovators of information platforms recognise the difficulty of protecting vulnerable groups such as children from the exposure and impact of obscenities and indecencies. Yet their creations are only laced with audience protection standards enforceable at the end-user level. Noted is that most Television or radio programs have been allocated watershed hours, assuming each household takes a grip on their children. The internal home rules of dos and don’ts need to apply.
Secondly, programs earmarked for adults’ ears and viewing are also assigned viewer or listenership discretion to guide parents and other household managers in ensuring children only watch and listen to what is age-appropriate.
It should be noted that most electronic equipment has embedded child-use control mechanisms, locks, and systems that require caregivers to delegate authority to access specific programs and software, amongst other highly inappropriate aspects.
As regards the information that is sometimes aired through news, three things reduce the possibility of objective action. First, as mentioned earlier, the same laws prohibiting specific unpleasant communication and mishaps are not applied to the powerful. Secondly, the law and culture that offer the value of respecting and promoting the good of the larger public have been swallowed by privileged impunity. Third, profits in specific industries are increased by selling what seems indecent, immoral, and inappropriate. While the weight of your concerns is noticeable, let parenting our children, including their access to certain information, be a parental duty rather than of the state.
