Laws Governing Media Practice In Kenya - AMWIK

Membership of the Complaints Commission(a) A chairperson, who shall be a person who holds or hasheld a judicial office in Kenya or who is an advocate of theHigh Court of Kenya of not less than ten years standing; and(b) Six other persons with knowledge and experience in any oneof the following areas—i. journalism;ii. media policy and law;iii. media regulation;iv. business practice and finance;v. the performing arts or entertainment;vi. advertising practice; orvii. related social sciences.The members of the Complaints Commission shall, at theirfirst meeting, elect a vice-chairperson of opposite gender fromamongst themselves.Functions of the Commissiona) Mediate or adjudicate in disputes between thegovernment and the media and between the public andthe media and intra media on ethical issues;b) Ensure the adherence to high standards of journalism asprovided for in the Code of Conduct for the Practice ofJournalism in Kenya; andc) Achieve impartial, speedy and cost effectivesettlement of complaints against journalists and mediaenterprises, without fear or favour.8Laws Governing Media Practice in Kenya

Powers of the Commissiona) To establish and maintain an internal mechanism forthe resolution of disputes;b) To prescribe procedures for determination of disputesrelating to the media;c) To receive, investigate and deal with complaints madeagainst journalists and media enterprises;d) To summon and receive information of evidencerelating to any matter.How does the Commission Operate?The Complaints Commission may, by notice in writing, require anyperson to—a) give to the Complaints Commission reasonable assistance inthe investigation of a complaint made under this Act; andb) appear before the Complaints Commission forexamination concerning matters relevant to theinvestigation of any complaint made under this Act.What Constitutes a Complaint?a) Breach of the Code of Conduct for the Practice ofJournalism set out in the Act for example fairnessand accuracy, taste and tone in the publicationor non-publication of a news-item or statements.b) Freedom of the press being threatened or encroachedupon through denial of facilities that helps in collection ordissemination of news or through threats, harassmentor assault.9Laws Governing Media Practice in Kenya

Complaints ProcedureA person may make a complaint to the Council if he/ she isaggrieved by:a) Any publication including online publications;b) Any conduct of a journalist, media enterprise or theCouncil;c) Anything done against a journalist or media enterprise thatlimits or interferes with the constitutional freedom ofexpression of such journalist or media enterprise.Such a person may make a written complaint to the Council,giving details of the complaint, nature of injury or damage and theremedy sought.Below are the procedures a complaint takes:a) One may make a written complaint to the Council settingout the grounds for the complaint, nature of the injury ordamage suffered and the remedy sought.b) Upon receipt of a complaint, the Council shall within14 days from the date of receipt of the complaint referthe complaint to the Complaints Commission forassessment to determine whether it is within theCommission’s jurisdiction.c) The Commission may reject a complaint if it does not fallwithin the mandate of the Commission.d) Upon satisfaction that the complaint is within thecommission’s jurisdiction, the Commission shall notify,10Laws Governing Media Practice in Kenya

in writing, the party against whom a complaint has beenmade, within fourteen days of receipt thereof, statingthe nature of the complaint, the breach, act or omissionin question.e) The person complained against (Respondent) is to replywithin 14 days from date of notification.f) The Secretariat shall, within 7 days of receipt ofthe response from the respondent, send the same to thecomplainant.g) If the dispute is not resolved the Commission can either setup conciliation or mediation panel consisting of not less thanthree commissioners to hear the matter.h) If the above panel fails to resolve the dispute, theCommission will form an Arbitration panel to hear thedispute.Remedies to Media ComplaintsAfter hearing a matter, the Commission can make any or acombination of the following orders;a) Dismiss the complaint;b) Order the offending party to publish an apology andcorrection in such manner as the Commission may specify;c) Order the return, repair, or replacement of any equipmentor material belonging to a journalist confiscated ordestroyed;d) Make any directive and declaration on freedom of expression;11Laws Governing Media Practice in Kenya

e) Issue a public reprimand of the journalist or mediaenterprise involved;f) Order the editor of the offending broadcast, print or on-linematerial to publish the Commission’s decision in suchmanner as specified by the Commission;g) Impose a fine of not more than five hundred thousandshillings (Ksh 500, 000) on any respondent media enterpriseand a fine of not more than one hundred thousandshillings (Ksh 100,000), on any journalist foundto have violated the Act or Code of Conduct forthe Practice of Journalism in Kenya. Such a fine shall be adebt due to the Council and recoverable as such;h) In its reasons for its findings, record a criticism of theconduct of the complainant in relation of the Complaint,where such criticism is necessary;i) Recommend to the Council the suspension or removal fromthe register of the journalist involved;j) Make any extra orders or directions that it may considernecessary for carrying into effect orders or directives made.The Commission shall communicate its decision to the partiesconcerned within 14 days from the time the decision is made.AppealA person aggrieved by a decision of the Council may appeal to theComplaints Commission against that decision.12Laws Governing Media Practice in Kenya

A party aggrieved by the decision of the Complaints Commissionmay, after thirty days after the Commission has made its decision,appeal to the High Court for further orders.Decisions of the Commission are finalWhere no application is made to challenge the decision of theCommission within thirty days of the date of the decision, thedecision of the Commission shall be final and binding to theparties.ASSORTED PROVISIONS OF THE MEDIA COUNCIL ACT, 2013Code of Conduct(1) The journalists and media enterprises shall keepand maintain professional and ethical standardsand shall, at all times, comply with the code ofconduct set out in the Second Schedule.(2) The Cabinet Secretary on recommendation ofthe Council may, from time to time, amend theSecond Schedule of this Act, which includes theCode of Conduct for the Practice of Journalism.Accreditation of JournalistsThe Council shall consider and approve applications by foreignjournalists for accreditation to practice in Kenya and may charge13Laws Governing Media Practice in Kenya

such fees as the Cabinet Secretary in consultation with theCouncil, may by notice in the Kenya Gazette, recommend.a) The accreditation shall be valid for a renewableperiod of twelve months.b) In considering an application for accreditation of a foreignjournalist in Kenya, the Council shall ensure that suchaccreditation does not affect the employmentopportunities of qualified and registered local journalistsor other media practitioners.Unaccredited Institutions(1) An educational institution that is not accreditedunderany written law or that has not been granteda charter shall not offer or teach courses injournalism.(2) An institution that offers or teaches courses in journalismand is not accredited commits an offence and theproprietor, director ormanager of such institutionshall be liable, on conviction, to a fine not exceedingtwenty-five thousand shillings or to imprisonment for aterm not exceeding two years, or both.Offences Relating to Functions of the CouncilA person can be punished by law for contravening the MediaCouncil Act, 2013 in the following ways:14Laws Governing Media Practice in Kenya

(a) Failing or refusing, without lawful justification, tocomply with the direction of the Council;(b) Obstructing or hindering the Council in the exerciseof its powers/ mandate;(c) Providing false or misleading information orstatement to the Council or any of its committees.Penalties1) A fine not exceeding two hundred thousand shillings, or toimprisonment for a term not exceeding six months, or both.2) Any subsequent offence committed by thesame person shall attract a fine not exceeding onemillion shillings, or imprisonment for a term not exceedingtwo years, or both.General Penalty1. A person who contravenes any provision of this Act orrules made by the Council thereunder for which nopenalty is specifically provided for shall be liable, uponconviction, to a fine not exceeding two hundred thousandshillings, or to imprisonment for a term not exceeding sixmonths, or both.2. Where an offence is committed by a body corporate,the corporate body and every principal officer orstaff of the corporation directly responsible for the actsor omissions constituting the offence shall be liable to thefine not exceeding two million shillings or imprisonmentfor a term not exceeding two years or to both.15Laws Governing Media Practice in Kenya

ACCREDITATIONWhy Accreditation of Journalists?The Council undertakes Annual Accreditation of journalists, bothlocal and foreign practicing in Kenya, for purposes of compilingand maintaining a register of journalists and media practitioners toensure that they prescribe to the Code of Conduct for the Practiceof Journalism in Kenya.RequirementsJournalists in formal employment(a) A letter from the employer(b) Professional Certificate/s (Degree or Diploma inCommunication from an accredited institution)(c) Portfolio of work done either in Print or Broadcast(d) A clear passport size digital photographFreelance Journalists(a) A reference letter from an organisation thatpublishes your work(b) Professional Certificate/s (Degree or Diploma inCommunication from an accredited institution)(c) Portfolio of work done either in Print or Broadcast(hardcopy)(d) A clear passport size digital photograph16Laws Governing Media Practice in Kenya

Foreign Journalists(a) A letter from the employer(b) Professional Certificate/s (Degree or Diploma inCommunication from an accredited institution)(c) Portfolio of work done either in Print or Broadcast(Hardcopy)(d) A clear passport size digital photograph(e) Valid Work permit(f) PassportStudentsIssued to students in their final phase of their training andproceeding for industrial attachment.(a) A letter from training institution indicating that thestudent is to go for internship(b) Valid Student ID(c) A clear passport size digital photographAccreditation Fees1. Local Journalist: Ksh 2,0002. Foreign Journalist: Ksh 10,0003. Foreign Journalist (Short Term - 3 Months): Ksh 5,0004. Student: Ksh 300Accreditation of Media EnterprisesThe Council accredits all media enterprises operating in thecountry to ensure that they subscribe to the provisions of theMedia Council Act, 2013 and the set regulations.17Laws Governing Media Practice in Kenya

A media enterprise is required by section 23(b) of the Act to paya subscription fee for accreditation. The amounts are set out inKenya gazette notice no. 896 of January 2009 as below:CATEGORYEXPLANATIONKsh(Monthly)Large media houseFive or more media outletswith regional reach and or highPower frequency with regionalreachLarge media houseFive or more media outlets with 100,000national reach and or high powerfrequency with national reachMedium media house Two to four media outlets ormedium power frequency150,00075,000Micro media housesTwo media outlets or low power 50,000frequencySmall media housesOne media outletSmall media housesOne media outlet and frequency 10,000radius of 40 kmMagazine publishersEach magazine title per annumForeign media houses Annual subscription20,00010,00030,000Accreditation of Institutions offering training in Journalism18Laws Governing Media Practice in Kenya

The Media Council Act, 2013 empowers the Council to considerand approve applications for accreditation by educationalinstitutions that seek to offer courses in journalism. This is toensure that such institutions include the basic minimums in thetraining curricula as prescribed by the Media Council of Kenya inconjunction with other relevant authorities.An educational institution that is not accredited by the Council orunder any written law or that has not been granted a charter shallnot offer or teach courses in journalism. Any institution that doesso, commits an offence and the proprietor, director or managerof such institution shall be liable, on conviction, to a fine notexceeding twenty-five thousand shillings or to imprisonment for aterm not exceeding two years, or both.The Council sets the levy fees for such accreditation via a gazettenotice.19Laws Governing Media Practice in Kenya

The Kenya Informationand Communications(Amendment)Act, 201320Laws Governing Media Practice in Kenya

SECTION BTHE KENYA INFORMATION AND COMMUNICATIONS(AMENDMENT) ACT, 2013(No. 41 A of 2013)Why the KICA Act?t Parliament enacted the Kenya Information andCommunication (Amendment) Act, 2013 to address theregulation challenges posed by the need to give effect to article34 of the Constitution of Kenya (on Freedom of the media)t The new Act amended the Kenya Communicationand Information Act 1998 (that was previouslyamended by the Kenya Information and Communication(Amendment) Act 2009) to align theAct to the Constitutional thresholds on Independenceset out in Article 34 of the Constitution of Kenya.t The Act created the Communications Authority of Kenyato replace the Communications Commission of Kenya.Freedom of the Mediat The Act recognises Freedom of the Media as enshrinedin Article 34 of the Constitution.t It provides that the Authority shall be guided by theConstitution which guarantees the freedom andindependence of the media and bars the state fromexercising any control or interference with media as well asfrom penalising any person for any opinion or for the contentof any broadcast or publication.21Laws Governing Media Practice in Kenya

t The Act further provides that the Authority shallrecognise the Freedom of Expression as set out inArticle 33 of the Constitution.t The Act provides that freedom of expression shall notextend to the(a) spread of propaganda for war;(b) incitement to violence;(c) the spread of hate speech; or(d) advocacy of hatred that-constitutes ethnic incitement,vilification of others persons, community, or incitementto cause harm; or any ground of discrimination includingrace, sex, pregnancy, marital status, health status,ethnic or social origin, colour, age, disability, religion,conscience, belief, culture, dress, language or birth.The Broadcasting Standards Committee (BSC)The Act establishes the Broadcasting Standards Committeeof the Authority whose responsibility is to set BroadcastingStandards. The Committee replaces the Broadcasting ContentAdvisory Council (BCAC). The BCAC’s responsibilities included theadministration of broadcasting standards, enforcement of thosestandards and handling related complaints.Administration of Broadcasting ContentThe Authority is granted additional responsibilities with respect tobroadcasting including the power to administer the broadcastingaspect of Communications, to set the media standards and ensurecompliance with those standards.22Laws Governing Media Practice in Kenya

Responsibilities of a BroadcasterThe Authority has been granted power to prescribe a certainpercentage of Kenyan programmes to be broadcast by allbroadcasters (radio or television). The purpose of which is tonurture the growth of local content.Revocation of LicenceThe Authority is empowered to revoke a licence if the licensee failsto use it within the time prescribed. Previously, the period waswithin one year from the date of assignment. The purpose of thisis to prevent hoarding of broadcasting frequencies by licensees.Enforcement of Licencing ConditionsIf a licensee contravenes the terms of the licence assigned bythe Authority, and the Authority has asked them to remedy theviolation and they fail to do so, the licensee shall be liable to apenalty of a minimum of Ksh 500, 000 and up to 0.2% of the grossannual turnover of the Licensee and shall continue being so forthe subsequent year if the violation continues.Access to InformationAccess to information and restrictions to disclosure of informationheld by the Authority will be guided by the provisions of Article35 of the Constitution on access to information as opposedto the discretion of the Commission as it was with the formerCommission.23Laws Governing Media Practice in Kenya

The Communication and Multimedia Appeals Tribunal (CMAT)The enactment of this Act disbanded the CommunicationsAppeals Tribunal and replaced it with the Communication andMultimedia Appeals Tribunal.What are the Functions of the Tribunal?A person aggrieved by—(a) any publication by or conduct of a journalist ormedia enterprise;(b) anything done against a journalist or mediaenterprise that limits or interferes with theconstitutional freedom of expression of suchjournalist or media enterprise; or(c) any action taken, any omission made or any decisionmade by any person under the Act;May make a written complaint to the Tribunal setting out thegrounds for the complaint, nature of the injury or damagesuffered and the remedy sought.The Tribunal will notify the person complained against to respondto the Complaint in writing, upon which it may set a date forhearing the Complaint.Decisions of the TribunalAfter hearing the Complainant, the Tribunal may make one or acombination of the following orders;24Laws Governing Media Practice in Kenya

(a)(b)(c)(d)(e)(f)(g)(h)(i)order the offending party to publish an apology andcorrection in such manner as the Tribunal may specify;order the return, repair, or replacement of anyequipment or material confiscated or destroyed;make any directive and declaration on freedom ofexpression;issue a public reprimand of the journalist or mediaenterprise involved;order the offending editor of the broadcast, print oron-line material to publish the Tribunal’s decision insuch manner as the Tribunal may

A Journalists' Handbook This publication is a simpli ed version of the two main laws that guide media (practice) in Kenya: The Media Council Act, 2013 and The Kenya Information And Communications (Amendment) Act, 2013 Association of Media Women in Kenya Wendy Court, Hse No. 6, David Osieli Rd O Waiyaki Way, Westlands