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State loses bid to regain media content control
The legal dispute arose following debate on who is responsible for the regulation of the broadcast content aired by media houses in Kenya including by prescribing a programming and broadcasting code.
The Court of Appeal has declined a request by the Communication Authority of Kenya (CA) to block the Media Council of Kenya (MCK) from developing a broadcasting code to protect minors and vulnerable groups from indecent content.
The legal dispute arose following debate on who, between the CA and the MCK, is responsible for the regulation of the broadcast content aired by media houses in Kenya including by prescribing a programming and broadcasting code.
The CA wanted the Court of Appeal to suspend implementation of a High Court judgment that blocked the regulatory body from gaining sweeping powers over programmes and content aired by radio and TVs.
It pleaded for orders restraining the MCK from taking any actions geared towards commencing or initiating the process of developing a broadcasting/programming code to replace the one developed by the CA, pending determination of an appeal.
CA wanted the interim orders to preserve its existing code, which it said contains appropriate standards for the protection of children and other vulnerable persons.
The pending appeal filed by the CA is challenging the High Court verdict dated November 7, 2024, which declared both the broadcasting/programming code prescribed by the CA and some sections of the Kenya Information and Communications Act unconstitutional.
Through its Director of Legal Services Ms Lydia Sitienei, CA said that it was aggrieved by the High Court decision and that the judgement created a lacuna in regulating content aired by the broadcast media.
However, the appellate court on Friday ruled that it was not in the public interest for the disputed judgment to be suspended, since it was rendered in conformity with the law.
In the ruling delivered by a three-judge bench led by Daniel Musinga (president of the Court of Appeal), the court held that the CA's application also failed to demonstrate the existence of a regulatory lacuna in the broadcasting sector. Other judges on the bench were Mumbi Ngugi and Francis Tuiyott.
"Section 46 H(ii)(a) of the Kenya Information Communication Act requires the CA to review the programming code every two years. This implies that the broadcasting code being developed by the Media Council of Kenya (MCK) may be revised or amended if the appeal succeeds. We agree with the Kenya Union of Journalists and MCK that no lacuna in the regulation of radio and television media shall arise after May 7, 2025, since by then, the MCK will have developed the media standards as directed by the High Court," said the judges.
MCK and the Kenya Union of Journalists won the battle at the High Court after Justice Lawrence Mugambi held that the MCK was clothed with the authority to set media standards and to monitor their compliance; thus to the extent that section 46A(i) and (j) of the Kenya Information and Communications Act gave a similar role to CA it was unconstitutional.
Justice Mugambi had directed MCK to execute its constitutional and statutory mandate by developing age-appropriate standards to protect children and other vulnerable persons from inappropriate media content within six months.
The MCK has already embarked on that exercise and told the Court of Appeal the same would be completed before the six-month period (May 7, 2025) given by the High Court.
The appellate judges, however, found that the pending appeal was arguable, the main issue being the distinction between the roles of CA and MCK.
The pending appeal raises at least three key issues of law, the first being whether the broadcasting and programming code developed and prescribed by the CA was a media standard or a licensing condition.
The second issue is whether the regulation of broadcast content is an ethical issue whose regulation is within the realm and mandate of the MCK.
Thirdly, is which statutory body, between the MCK and CA was responsible for the regulation of the broadcast content aired by broadcast licensees, including by prescribing a programming code?
The Kenya Union of Journalists had opposed the application with its Secretary-general Eric Oduor, the Secretary-General stating that the CA was seeking to circumvent and violate the provisions of Article 34 (5) of the Constitution which states that the MCK has the mandate to set standards, regulate and monitor compliance with such standards.
"The mandate of CA under Article 34 (3) of the Constitution does not include the mandate of regulating media content and cannot as such be invoked to justify encroachment into the domain of MCK," said Mr Oduor.
In response to CA’s contention that there was a risk that television and media broadcasts would operate in a vacuum without regulations, Mr Oduor said MCK already has in place a code of conduct for the practice of journalism.
He said the code, provided as Schedule II of the Media Council Act, required only a few modifications by incorporating age-appropriate standards for the protection of children.
The Authority being the state organ with the professional competence to advise the Government on ethical standards in the media, Mr Oduor said whatever code generated by MCK pursuant to the High Court judgment could be adopted by the CA for promulgation and enforcement.
He was backed by MCK's Manager of Regulatory Affairs, Terence Bavon Minishi, who reiterated that MCK was actively developing the media standards as directed by the High Court. The legal dispute started in 2019.
