During 2007, the Media Act came into force, as a means through which the Media Council of Kenya will self-regulate.

[ LINK ]

References: Constitution of Kenya (Chapter V, Section 79).

Media Act (2007). [ LINK ]

Peer Review Comments: The Media Council of Kenya, facing serious financial problems, is yet to sharpen its operational teeth in order to help the media in Kenya self-regulate.

As a result, consultations are taking place between the council and the government with a view to have the government fund the council. The Media Act of 2007 does not allow the Media Council of Kenya to receive foreign funding.

Sources: Media reports (Nation newspapers, the Standard, TV reports).

Peer Review Comments: There has been significant improvement with regard to media freedom, especially since the exit of the Moi regime. However, while the law may guarantee the media's freedom, in practice, the subtlety with which the Government still wields control and makes its preferences known on information dissemination still suggests that full freedom is not enjoyed.

Peer Review Comments: Even though I agree that press freedom does exist, the government always gags the media when they believe media reports may inflict permanent wounds on them. A clear example is the coverage of last year's bungled elections where the press was barred from writing their reports as they trickled in from the field. All stations were barred from showing live coverage, an instance that shows how far we are from exercising the power of the pen. More emphasis needs to be put on proper legislation that will allow the press to operate at will in order to pave the way for increased tracking of the government's performance to ensure that it is accountable and transparent.

References: Constitution of Kenya (Section 79). [ LINK ]

Peer Review Comments: Although the Constitution guarantees freedom of speech, that freedom is not absolute. For example, the Secretary General of the Central Organization of Trade Unions (COTU), Mr. Francis Atwoli, on Labor Day celebrations in Nairobi on May 1, 2008, made a statement to the effect that some judges colluded with employers to frustrate workers' petitions in the courts. The Judiciary was ruffled, with Chief Justice Evan Gicheru summoning Mr. Atwoli to explain himself. Sources: Media Reports (Daily Nation, The Standard).

Peer Review Comments: Freedom of speech is enshrined in the principal law of the land. However, in some instances, politicians have abused the clause by uttering inflammatory statements that are tantamount to dividing the nation along ethnic lines. This needs to be checked by amending the act to incorporate stiff penalties for such would-be offenders in order to keep the nation united.

Over the last year, there has been no evidence that the government has tried to derail any significant attempt to establish a print media entity; the government still probably smarting from the negative publicity it generated over its handling of the Standard newspapers in 2006. Meanwhile, the emergence and sustained publication of various entities of the "alternative" media or "gutter" press is evidence that the arena is comparatively open, despite the periodic publishing of material that can be quite embarrassing to the government and its senior people. However, the government seems to be more concerned with the prospects of exposes from the mainstream media, which is why there was a tug of war with civil society over the development of the Media Act of 2007 and the constitution of the Media Council of Kenya.

References: Constitution of Kenya (Section 79).

References: Kenya Communications Act (Part 1V, Radio Communications (35), Licensing requirements; and Cap 497 Trade Licensing Act (15)).

Kenya Communications Act (Section 79). [ LINK ]

Peer Review Comments: However, there has been a lot of scrutiny in monitoring the licensing of the stations. As a result, this process takes a long time as the Government tracks the details of those who are seeking licenses, including their political affiliations.

Sec 79 Grant of License: The Commission may, upon expiry of the period of notice under Section 78, grant a license to the applicant if satisfied that the applicant should be licensed, subject to such conditions, including the payment of such license fee as may be prescribed.

Provided that where the Commission does not grant a license, it shall notify the applicant in writing of the reasons for refusal within 60 days of such refusal and the applicant may, if aggrieved, appeal to the Tribunal.

References: Kenya Communications Act (Section 79).

References: While the proportion of Kenyans living in poverty has diminished since 2005-2006, investment in the print media remains an exclusive domain of the non-poor, for while license costs might not be prohibitive, this must be seen in the context of the overall costs of running the publication.

Peer Review Comments: Though they are guaranteed by law, exacerbating poverty has often blocked the people's efforts in this regard. The rich have undue advantage over the locals when it comes to undertaking such programs.

References: While the legal frameworks for licensing are quite sound, its application often reflects some bias. Anecdotal evidence suggests one application for nationwide bandwidth for a regional station has been pending for more than a year. Whether such impediments are placed in an applicant's way depend on whether they are perceived to be pro- or anti-government.

References: Kenya Communications Act (Part 1V) Radio Communications (35) Licensing requirements; and Cap 497 Trade Licensing Act (15).

"On receipt of fully completed applications: "We will make the outcome of applications for new Telecom, Commercial VSAT and Postal/Courier Licenses within 135 days from the date of receipt of such applications provided all requirements including attachments have been furnished to the Commission by the applicant; Applications for the transfer of operational Licenses shall be processed within 30 working days upon receipt; Where the 60-day gazette notice is not required, the outcome will be made known within forty (40) working days from the date of application; We will process applications for Private VSAT, Vendor, Telecommunication Contractor or Telecommunication Technical Personnel certificates within 30 working days following receipt of complete applications from qualified applicants; We will make our decision known on applications for License-term extensions for facility-based Licenses within 12 months; We will process applications for annual renewal Certificates within five working days of receipt; We will respond to applications for modification of License conditions within 10 working days of receipt; Where public consultations are merited, such consultations will commence within 21 working days following receipt of applications; We will comply with procurement time frames as may be revised from time to time and further endeavor to comply with the time-frames specified for each tender where a tender process is used in the issuance of License; We will make Licenses available for viewing by the public at the Commission's offices upon payment of a fee of 250 schillings (US$3.20) per License requested."

References: The Communications Commission of Kenya. [ LINK ]

Peer Review Comments: Although the Communications Commission of Kenya (CCK) Act provides fairly predictable timelines between application for and the grant of radio or TV licenses, there are a number of applications that are delayed for approval, especially by those perceived to be anti-government.

Sources: Media reports (Nation newspapers, The Standard).

References: Communications Commission of Kenya. [ LINK ]

Peer Review Comments: Not many investors have dedicated their resources to upgrade the presence and capacity of rural and ghetto (print and electronic) media. And where these do exist (e.g., Ghetto FM and Pamoja FM), it has largely been the work of CSOs or NGOs, relying on the pro bono services of young, talented broadcasters seeking to establish a footprint in the studios.

Sources: Media Reports (Daily Nation, People Daily, The Standard), Ghetto FM (http:\www/cidarec.org.ke).

References: The main constraint to people's access to the Internet is their personal circumstances, determining whether they can afford personal computers or visit a cyber cafe. In the aftermath of the disputed 2007elections, a common perception was that the poor TV reception was the result of government interference, a perception eventually given credence with an announcement that news could not be broadcast live. However, on the balance, Kenyans have more or less unfettered access to global websites.

Meanwhile, the management of the government's own ministerial and state corporation websites is in instances quite inefficient and could be a way of denying the public immediate access to the latest information.

Peer Review Comments: There was an attempt in 2007 by the minister for Information to amend the Communications Commission of Kenya Act and allow the Government to interfere with private Internet use for security reasons. The Information and Communication Technology (ICT) Bill lapsed with the end of the Ninth Parliament in December 2007. There is already talk within official corridors to revive the bill.

Sources: Media Reports (Daily Nation, The Standard, Kenya Times, The People).

References: Communications Commission of Kenya.

[ LINK ]

References: Constitution of Kenya. Defamation Act (Cap 36). [ LINK ]

Peer Review Comments: Kenya also embraces principles of law relating to defamation espoused under the common law tradition, meaning unwritten customs that were applied and developed into law from time to time by the English courts.

The large private media presence in the newly launched, statutory MCK means self-censorship will continue. However, it is not clear what will happen to the composition of its board, for a large government presence could facilitate the state censorship the government had wished to introduce. It is significant that on Oct. 2, 2008 a judge complained of excessively large awards in libel cases, such large awards having been employed by the government as a deterrent for journalists publishing exposes.

References: Media Council of Kenya (MCK). [ LINK ]

References: The government does not explicitly censor material intended for publication. However, it does make its preferences known. Furthermore, the government's very vibrant Office of Public Communications (read: propaganda) either preempts exposes with its own version or undertakes damage limitation activities. See [ LINK ]

Peer Review Comments: There are also instances where government orders press to stop certain publications they deem a threat to national security. A good example is the live coverage of last year's bungled elections.The electronic media went mute after the state warned "Air live news at your own peril."

References: Companies Act (Cap 486). [ LINK ]

Peer Review Comments: Whereas it is true that prior to registration, the promoters of the company must be disclosed. That information is kept at the company's registry where anyone who wishes to access the relevant file has a right to do so upon payment of a fee. This requirement is not unique requirement to the media houses. It is also applies to any company registration.

References: Companies Act (Cap 486). [ LINK ]

Peer Review Comments: Whereas it is true that prior to registration, the promoters of the company must be disclosed. That information is kept at the company's registry where anyone who wishes to access the relevant file has a right to do so upon payment of a fee. This requirement is not unique requirement to the media houses. It is applies to any company registration.

However, there have been instances of irresponsible journalism resulting in successful libel and defamation lawsuits. However, it is instructive that in October 2008, a judge decried the high awards previously meted by the judiciary in defamation cases, consequently awarding a modest 5 million shillings (US$64,100) to a parliamentarian who had demanded 35 million shillings (US$449,000) for defamation.

http://www.mediacouncil.or.ke/

References: Media Industry Steering Committee Code of Conduct. [ LINK ]

Peer Review Comments: The biased commenting and reporting by journalists that was witnessed in the 2007 General Elections, (and previous elections) contributed to the division along ethnic and political lines, from which the civil unrest resulted. This also spurred the Media Industry Steering Committee to regulate journalists' conduct, and strengthen and build their understanding regarding media and electoral laws, as well as the ethics of objective reporting.

References: [ LINK ] [ LINK ]

Peer Review Comments: Overall, media coverage of presidential candidates was narrowed down to three candidates (even though there were a total of eight), while some of the mainstream media decided to openly or indirectly support certain candidates and political parties.

Source: Media reports (Nation, Standard, Kenya Times, The People; NTV, KTN, Citizen TV).

Peer Review Comments: Hidden advertising was evident in both FM-radio and TV stations, and in particular Kenya Broadcasting Company (KBC) -- the state media house. This suggested a deliberate intent to use advertising for electoral campaign purposes in addition to informing citizens about government policies.

The 2007 General Elections also revealed clear coverage disparities among the key political parties and their candidates in the print media; i.e., the political leanings of the coverage were obvious. Bias was also noted along gender lines, with male candidates purportedly enjoying more coverage than their female counterparts.

Source: The Coalition for Accountable Political Financing (CAPF) Reports on Campaign Finance.

References: [ LINK ] [ LINK ]

References: Neither the grapevine, nor the local media, nor international watchdog bodies have reported any such instances specifically for Kenya. See for example, the Committee to Protect Journalists' website at [ LINK ] Also see [ LINK ]

References: There have been no local or international reports of any such incidents.

References: There have been no local or international reports of any such incident. However, a foreign journalist, Trent Keegan, who was apparently investigating a land dispute across the border in Tanzania, was recently murdered, and investigations are continuing. See [ LINK ]