The High Court has given the Media Council of Kenya (MCK) six months, to develop a programming code for local broadcasters as part of ongoing efforts to protect minors from inappropriate media content.
In a ruling that nullified the broadcasting guide issued by the Communications Authority of Kenya (CA) in March this year, Justice Lawrence Mugambi asserted that the role of regulating aired content constitutionally rests with the MCK.
The judge however suspended the nullification order for a six-month period to allow MCK to develop its own age-appropriate guidelines, meaning that the CA code will remain in force during the period.
“The role of setting media standards, regulating and monitoring compliance with those standards is specified under Article 34 (5) (c) of Constitution to be a role that the Constitution anticipates will be performed by the body created to give effect to that provision,” said Justice Mugambi in the ruling dated November 7, 2024.
Justice Mugambi made the determination in relation to a petition filed by the Kenya Union of Journalists (KUJ) in which they sought an invalidation of the CA code, terming it an attempt at media censorship and an effort by the State to curtail press freedom.
In drawing up the code in March, the communications industry regulator had outlined the key purpose as being that of ensuring that broadcasters in the country, paid regard to prevailing content standards in an effort to protect vulnerable persons from inappropriate content.
In their suit, the journalists argued that the code was issued under Kenya Information and Broadcasting Regulations, 2009, meaning it was redundant, adding that the set of guidelines was also rendered in vague and general language which exposed them to a range of unnecessary complaints.
CA, in its defense, submitted that the need to issue the programming code was informed by the public interest to protect the children from harmful content during the watershed period.
In issuing his judgement, Justice Mugambi cited the need to protect broadcasters from a potential threat to emasculate their freedom as provided for in the Constitution.
“It ought to be the responsibility of the Media Council to set and monitor the ethical codes for the protection of the children and/any other vulnerable group and to monitor and enforce them, not the 1st Respondent (CA),” wrote Mugambi.
“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.”
