27 November 2013

Kenya: President Returns Draconian Media Bill to Parliament

Nairobi — President Uhuru Kenyatta on Thursday declined to sign the controversial Kenya Information and Communications Act (Amendment) Bill and instead returned it to the National Assembly with recommended changes.

National Assembly members are now expected to debate the President's recommendation on Tuesday. In the event they disagree with the President the legislators will require a two-thirds majority vote to overturn the presidential veto and force the Bill to automatically become law.

In rejecting to sign the bill, Kenyatta said that many provisions of the Bill go against the constitutional requirement that the tribunal proposed should be independent of commercial, political and government interests.

Clause 37 proposes the introduction of a new section 102 (3) which provides for the establishment of the Communication and Multimedia Appeals Tribunal. Subsection (3) sets out the membership of the selection panel responsible for appointing members of the tribunal.

The President said the membership of the selection panel as set out under the proposed provision is drawn exclusively from media players and the government. This, he said, is against the Constitution that says the tribunal should be free of media, commercial and Government interests.

On the removal of members of the tribunal, the President said subjecting them to a process that is steered by a panel comprising media and government would "render the process partial and lacking in independence".

He also took issue with the provision for the complaints the Tribunal may receive. President Kenyatta said the jurisdiction of the tribunal is confined to complaints relating to the media enterprises and journalists.

"It does not deal with any matters relating to telecommunications, courier or postal services, information, communication and technology and other matters which fall within the ambit of the Act," he said.

He also said the clause further introduces a new section (102E) that provides for the decisions that the tribunal may make. He said it contains penal consequences, including a fine of not more than Sh20 million that can be meted against a media institution for breach of code of conduct. The President recommended that some of the sections be deleted and changes be made to the Bill to reflect the constitutional threshold.

Another reason cited by the President is the proposal for the procedure of the appointment of the members of the Board of the Communication Authority of Kenya. The section provides that the Cabinet Secretary will short list applicants, vetting of the shortlisted applicants by the National Assembly and the subsequent appointment of the chairperson and members of the Board by the President.

The President said the proposed section, as currently provided, maybe construed to be contrary to Article 34 (3) (b) of the Constitution that provides for media freedom. Article 34 provides for a media that is independent of control by the government, and political and commercial interests.

The President says the requirement for vetting by the National Assembly interferes with the discretionary powers of the appointing authority in renewing the term of appointment of the chairperson or members of the Board of the Authority.

He said the fact that the National Assembly is no longer involved in the appointment process means that the section is irrelevant. President Kenyatta pointed out that subjecting the renewal of the appointment of the board members to parliamentary approval would interfere with the independence of the Authority in the performance of its functions.

The clause further proposes the introduction of a new section that provides for the grounds on which the office of the chairperson or board member may become vacant and the procedure for removal by the National Assembly.

President Kenyatta said these subsections may be viewed as curtailing the independence of the media as guaranteed by the Constitution for vesting the removal of the board members on the National Assembly.

Other clauses cited by the President to have contravened Article 34 include clauses 17, 37, 38 and clause 41. Clause 17 proposes to amend section 461 of the Act that sets the minimum local content in programming, which a broadcaster should air on radio or television.

He said as the entity envisaged under Article 34, the Authority is the institution best placed to regulate content as opposed to statutory prescription by the National Assembly.

The controversial Kenya Information and Communication Amendment (KICA) Bill 2013 passed by Parliament a couple of weeks ago sparking outrage that the government was trying to micro-manage the media.

Several meetings have been called, the latest one being between the National Assembly Energy and Communications Committee and the Media Council of Kenya officials, Media Owners Association, the Kenya Editors' Guild and Kenya Correspondents Association to try and build consensus on the Media Council Bill.

The MPs argued that the clauses contained in the KICA Bill were not their creation but were brought in during consultations with the media stakeholders while the draft Bills the media fraternity forwarded to Parliament were adversely altered between the Ministry of ICT and Attorney General's chambers to the shock of many.

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