In May 2015, ARTICLE 19 analysed the Kenya Information and Communications (Broadcasting) Regulations and the Programming Code for Free-to-Air Radio and Television Services against international standards on freedom of expression. The Regulations and Code have been opened up for review with the aim of aligning them with the Constitution of Kenya, 2010 and latest amendments to the Kenya Information and Communications Act, 1998.
ARTICLE 19 finds that both instruments include a number of positive features. The Broadcasting Regulations set out a straightforward licensing procedure, in which community broadcasters benefit from simplified requirements. They encourage self-regulation of content issues by broadcasters, and put in place an innovative complaints system in which the aggrieved party first raises the issue with the broadcaster itself. Only if the response is unsatisfactory does the case go before the Communications Authority.
The Programming Code gives practical guidance to broadcasters on a range of issues, and in many respects corresponds to international good practice.
At the same time, significant areas for improvement remain. In particular, the frequency plan is not properly embedded into the licensing procedure, and is at risk of becoming a dead letter.
Concentration of ownership remains a major issue in the Kenyan media landscape, yet the Programming Code proposes to increase the number of licences one person may hold concurrently. No attempt is made to rein in cross-ownership between print and broadcast media. The Broadcasting Regulations contain such extensive rules on content that in reality they leave little room for broadcasters to self-regulate. Non-compliance with any provision of the Regulations or the Programming Code may attract a severe three-year prison sentence.
ARTICLE 19 has previously expressed its concern at the level of government control over the Communications Authority, and in particular the role of the government in the appointment of the Authority’s Board of Directors.
Progressive amendments to the Broadcasting Regulations and Programming Code would be a welcome development, but ultimately the best safeguard for a vibrant and pluralistic broadcasting sector would be a genuinely independent regulator.