The Commission for the Implementation of the Constitution is mandated to monitor, co-ordinate, facilitate and oversee the implementation of the Constitution of Kenya, 2010. Pursuant to our Mandate, CIC wishes to inform the people of Kenya, that having considered the Kenya Information and Communications (Amendment) Bill in light of the Constitution, we are of the opinion that the Bill contains provisions which are unconstitutional and if enacted in its current state will inadvertently erode the gains made in the Constitution to ensure freedom of the Media.
We do hasten to mention that the issues we have listed here are not the only concerns that many stakeholders have with the provisions of the Bill but we have restricted ourselves to issues that relate to the Constitution, in accordance with our mandate.
Article 34 of the Constitution of Kenya guarantees freedom of the media and specifically Articles 34(1), (2) and (3) provide that:
- Freedom and independence of electronic, print and all other types of media is guaranteed, but does not extend to any expression specified in Article 33 (2).
- The State shall not—
- exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium; or
- penalise any person for any opinion or view or the content of any broadcast, publication or dissemination.
- Broadcasting and other electronic media have freedom of establishment, subject only to licensing procedures that—
- are necessary to regulate the airwaves and other forms of signal distribution; and
- are independent of control by government, political interests or commercial interests.
In view of these and other clauses in the Constitution that guarantee freedom of the Media, CIC has noted the following clauses that need reconsideration:
Appointment and Removal of members of the Communications Authority
Clause 7 of the Bill creates a Communications Authority of Kenya, a successor institution to the CCK, with some of its board members appointed through a process that solely involves the National Executive and the National Assembly. It further provides for the submission of seven persons to the appointing authority for appointment of the seven members of the Authority. The clause further requires vetting by the National Assembly before renewal of the term of office of the chairperson and members of the board of the Communications Authority while also providing for the removal of the Chairperson and members of the Board of the Communications Authority to be carried out by the National Assembly.
These clauses violate the provisions of Article 34(3) of the Constitution by leaving the Body responsible for licensing broadcasters under the control of two arms of government, the Executive and the National Assembly.
CIC proposes that following amendments to Clause 7:-
To meet the Constitutional threshold, the responsibility of constituting the Authority should be granted to a selection panel which comprises of representatives of government and a broad segment of stakeholders including the media. This will ensure that the process of constituting of the Communications Authority does not compromise its independence and does not run contrary to the requirement of Article 34(3) that requires that the body responsible for licensing, broadcasting be free from control by government.
That the number of eligible nominees for appointment forwarded to the appointing authority by the panel should be more than those required to be appointed. This is to give the appointing authority discretion and flexibility in addressing constitutional requirements of diversity, inclusiveness and equity in the appointment of public officers.
The vetting process should be independent of approval by the National Assembly to avoid perpetuating the unconstitutional role of an arm of government as well as political interests in the appointment process.
The removal from office of Chairperson and members of the Board of the Communications Authority should be through a tribunal which is independent of any arm of government. This will be in line with best practice and which is consistent with the removal of members of similar institutions.
Local content provisions
CIC recognises and appreciates the need to ensure that broadcasters licensed in Kenya carry local content in their broadcasts.
However, Clause 17 of the Bill which sets out the minimal local content for all “distributors” of radio and television programs runs counter to the provisions of Article 34(2) of the Constitution which disallows penalties for “the content of any broadcast publication or dissemination”. It is our view that in its current form, the Clause opens the non-compliance with local content requirements to penal consequences contrary to the provisions of Article 34(2). Furthermore the Clause does not take into account the existing local content rules in the Act which are still to be applied by the Authority and therefore leads to internal conflict within the statute.
CIC proposes therefore that the power of the Cabinet Secretary to develop national policy on broadcasting be specifically provided for in the Bill as envisioned under the Fourth Schedule to the Constitution so that local content requirements can then be applied through licensing conditions on the basis of government policy.
Communications and Multimedia Appeals Tribunal
Clause 37 provides for the establishment of a Selection Panel for selecting suitable candidates for appointment as members of the Communications and Multimedia Appeals Tribunal. The Selection Panels consists of largely of governmental stakeholders and who are in any event all representatives of the industry sought to be regulated contrary to Article 34(3) of the Constitution that requires independence from “government and commercial interests”.
CIC recommends that the selection panel be expanded to include a wide array of stakeholders within and outside the media sector.
The clause further provides for removal of members of the Communications and Multimedia Appeals Tribunal through a selection panel comprising government and media industry stakeholders which leaves the process for removal of a member of the tribunal indeterminate, subject to government and commercial interests and will lead to conflict of interest since only government and media interests are represented in the selection panel.
CIC proposes that a member of the tribunal should be removed through a tribunal, similar to other removal processes adopted for similar institutions that must perform their functions independently
The same clause (37) provides for the mode of resolution of complaints by the Communications and Multimedia Appeals Tribunal which are purely adversarial and do not anticipate the alternative dispute resolution mechanisms required under Article 159(2) of the Constitution.
CIC proposes that the Bill should include provisions setting out alternative dispute resolution as an option of resolving disputes brought before the tribunal. This will respect the requirements of Article 159 of the constitution which obliges tribunals to apply alternative dispute resolution mechanisms in resolving disputes.
Finally the same Clause (37) contains severe penal consequences that can be meted by the Tribunal including those relating to breach of code of conduct. By its nature a code of Conduct is imprecise and deals with general guidelines on ethical behaviour. It is unconscionable to subject issues of professional ethics and professional conduct to the penal consequences provided in the Bill.
In CIC’s view the penal consequences should be restricted to breaches of the substantive provisions of the Act and should exclude breach of the code in line with principles of criminal law.
Clause 39(8) to (14) of the Bill proposes the appointment of members of the Universal Service Advisory Council in a process that involves approval by the National Assembly. This provision is unnecessary for an advisory body and unduly incorporates the legislature in matters that are the preserve of the Executive.
CIC proposes that process of appointment of members of the advisory council should not include approval by the National Assembly.
CIC wishes to highlight that during the audit of the Bill in line with our mandate and in furtherance of the provision on public participation, CIC has in the last three days engaged with representatives of the Media including Media Owners, Media Council and the Ministry of Information, Communication and Technology. Our position is also informed by discussions with them.
The CIC has also written to the President requesting him to exercise his executive authority under Article 115(1) (b) and refer the Bill back to Parliament for reconsideration in view of the above mentioned unconstitutional provisions.