CA seeks to have quashed broadcasting code reinstated
The Communications Authority of Kenya headquarters in Nairobi.
What you need to know:
- High Court quashed the laws which it termed as adversative to the independence and freedom of media.
- Justice Mugambi had also ruled that the industry regulator had encroached on the mandate of the MCK.
Fresh battle looms between Communications Authority of Kenya (CA) and Media Council of Kenya (MCK) after CA moved to the Court of Appeal to overturn the quashing of broadcasting code it had issued in 2016.
High Court judge Lawrence Mugambi quashed the laws ruling that governmental control or ‘censorship’ through giving of directions to media content and as to how and when content should be aired, was adversative to the independence and freedom of media.
Justice Mugambi had also ruled that the industry regulator had encroached on the mandate of the MCK.
CA says it was dissatisfied with the decision as the judge failed to appreciate that the right of freedom and independence of the media was not absolute.
Through lawyer Wambua Kilonzo, CA added that the High Court judge erred in holding that inappropriate broadcast content is an ethical issue, which should be dealt under the context of media standards by the MCK rather than CA, as the regulator.
The industry regulator maintains that the programming code for broadcast media is a licensing standard or condition and not a media standard.
Inappropriate media content
“The learned judge of the High Court erred in law and in fact by usurping the role of Parliament being the legislative arm of government and erroneously proceeded to purport to legislate by transferring regulatory function of the appellant (CA), as legislated by Parliament, to the 3rd respondent (MCK),” Mr Kilonzo said in the application.
Justice Mugambi had suspended his judgment for six months, to allow MCK to develop age-appropriate standards to protect children and other vulnerable persons from inappropriate media content.
The regulator had stated that its programming code was meant to protect children from inappropriate or harmful content.
Justice Mugambi had ruled that to the extent that the programme code veered off into the MCK’s mandate and developed age appropriates programme code, it expressly undermined the provisions of Article 34 (5) of the Constitution, by potentially intruding and a threatening to emasculate the freedom of the media.
“It ought to be responsibility of the Media Council of Kenya to set and monitor the ethical codes for the protection of the children and or any other vulnerable group and to monitor and enforce them, not the 1st Respondent (MCK),” said the judge.
Set licensing standard
“This court must uphold the independence of the media as protected under Article 34 which advances the rule of law and upholds the principles and purpose of the constitution,” said the judge.
Kenya Union of Journalists challenged the sections of the Kenya Information and Communications Act (KICA), arguing that setting standards and monitoring the standards was an exclusive mandate of MCK.
KUJ further said the Code’s language was vague, generalised and uncertain.
The union said this has restricted the general conduct of journalism and exposed its members to a myriad of complaints.
CA on its part said the Programming Code was not a set of media standards but a licensing standard for regulation of the broadcasting industry.
CA said section 46H of Act grants it the power to set standards for time and manner of programmes to be broadcast by licensees and to prescribe a programming code, to review it every two years and to provide the watershed period when large numbers of children are likely to be watching or listening to the programme.
