Legal Analysis: Kenya Programming Code

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Executive summary: 

In April 2016, ARTICLE 19 analysed the Programming Code of Kenya (the Code), which was adopted in December 2015 by the Communications Authority of Kenya (the Authority). The Code will take effect on 1st June 2016.

The Code provides detailed recommendations to broadcasters on how to approach a number of content-related issues. It seeks to ensure that broadcast media contributes to, and abides by, the respect and promotion of public interest, notably by providing reliable and fair information and protecting minors. A number of provisions in the Code reflect international good practice in the field of broadcasting and journalism.

However, ARTICLE 19 find that, overall, the Programming Code fails to meet the requirements of international standards on freedom of expression. Many of its provisions are vague and over-generalized, or fail to set an appropriate balance between freedom of expression and competing rights. Further, several detailed provisions of the Code are only operational as recommendations or guidelines rather than strictly binding provisions. Last but not least, the Programming Code gives rise to a conflict of jurisdiction for all matters related to professional ethics in broadcast media. As such, it undermines co-regulatory mechanisms currently in existence in Kenya.

ARTICLE 19 calls on the Authority to review the Programming Code in order to ensure its compliance with international freedom of expression standards based on our recommendations. Pending this revision, the Authority should abstain from applying provisions that do not comply with international standards.

Summary of Recommendations:

  1. The Communications Authority should refer all questions related to professional ethics and good practices to the Media Council of Kenya;
  2. Pending a future revision of the Code, the Authority should ensure that all decisions in which the Code is applied are in conformity with the requirements of international standards on freedom of expression;
  3. The legislation on media regulation in Kenya should be revised in order to:
  • Reinforce the independence of the Authority in conformity with international standards on the regulation of broadcast media;
  • Prevent any control of public authorities over independent self-/co-regulatory bodies; and
  • Ensure that the Media Council of Kenya holds jurisdiction over all matters related to professional ethics in broadcast media.

Read the full legal analysis.