Saturday, November 28, 2009



By Jerry Okungu
November 28, 2009
Early this week, the Communications Commission of Kenya organized a two day forum for stakeholders to discuss the proposed Kenya Communications Regulations Act 2009. My understanding was that the CCK found it necessary to hold this forum in order to arrive at some consensus on contentious issues that have been opposed by the Media Owners Association for one reason or another.

To demonstrate the seriousness of this forum, both the Chairman and the CEO of CCK ensured their personal attendance throughout with the CEO fielding quite a number of questions from the audience along with other experts that presented their papers.

Whereas other stakeholders such as internet service providers, courier and postal service players attended the two day meeting, the absence of the main broadcasters except for Royal Media was rather conspicuous. Yet on day two, when radio communications and frequency spectrum regulations, consumer protection, broadcast licensing and content regulations were discussed, one expected that the main players in this field would be at hand to state their case on aspects of the Bill that they felt uncomfortable with.

However, talking to one of the media owners later in the week, I came to realize that the “Media Owners” had earlier convened a meeting and resolved to stay away because they considered themselves an industry rather than stakeholders. Moreover, according to them, such forums in the past where civil society groups have been included have always provided an opportunity for media bashing especially on content considered by religious and anti-pornography campaigners as unsuitable for broadcast.

That aside, one wonders whether staying away from such forums organized by policy makers in government will achieve much. Much as the media owners feel that they are an industry rather than stakeholders, it may be prudent to remind them that they do not broadcast in a vacuum or to wild animals, trees and forests. Like every media house the world over, their audiences are real human beings with diverse feelings and tastes-the stakeholders of all types that they consider not worth their time. Issues that interest groups differ on are never resolved through boycotts. If that were the case, society would never allow employers and workers’ unions to coexist.

Having said that, let us look at what the Act, whose amendments are causing ripples in the broadcast industry, is saying.

It says that the functions of the Communications Commission of Kenya on broadcasting services shall include promoting and facilitating the development of a diverse range of broadcasting services with the public interest in mind. It will in the same breadth encourage the production of local Kenyan broadcast content and ensure that at all times broadcasters meet public interest obligations in all broadcasting categories.

The Act is also specific when it comes to promoting diverse and plural opinions in what it calls the marketplace of ideas.
Here, the Act is aware that if broadcasting services are concentrated in the hands of a handful of broadcasters, there may be unhealthy monopoly of ideas and profits that accrue from the industry.

Whereas the CCK will undertake to safeguard public interest under the Act, the same Act also provides room for internal mechanisms through which broadcasters can dispose of complaints relating to broadcasting services.

Also included as one of the CCK functions, is the duty to protect the right to privacy of all persons without exception unless specified elsewhere in the Act.

To make sure that the rules of the game are clear to all players in the industry and stakeholders alike, the Act has classified broadcasting services into three main categories. These are: public broadcasting, private broadcasting and community broadcasting. It is easy to understand that only Kenya Broadcasting Corporation will after the Act is operational, be the only public broadcaster funded by public finances with a possible vote from the treasury unless other sources of public funding are stated.

Private broadcasting will include any investor who goes into broadcasting either regionally or nationally purely on a commercial basis. My understanding is that this category will include in our case, Radio Africa, Nation Broadcast Division, The Standard Broadcast Division, Royal Media, Capital Group and a number of small operators that also include religious networks.

The third category that the Act refers to as community broadcasting will include NGO or donor funded broadcast services for specific communities. This category will not be for profit purposes and will be managed by the community in a democratic and transparent manner. Because they will not be for profit, the CCK plans to waive annual fees on their frequencies.

The Act has proceeded to classify broadcasting service licenses as follows: free to air radio; free to air television, subscription radio, subscription television and subscription management. It therefore requires an applicant to apply for a specific license type and operate strictly under the guidelines of that license type. And here is where the first signs of contention emerge. The Act is very categorical that any person who contravenes this section commits an offence and shall on conviction be liable to a fine of Ks 1 million or to imprisonment for a term not exceeding three years or both.

Down the line in the Act, the Commission is empowered to set standards and manner of programmes (content) to be broadcast by licensees by prescribing a programming code of ethics and standards which shall be reviewed every two years.

However, what vexes the current broadcasters is a section that empowers the Commission to decide when adult programmes should be on air. It relegates all adult programmes that include strong or lurid language, explicit sexual scenes on television or steamy sex talks on radio shows that are common on our local FM stations. If the Commission has its way, such shows will be relegated to after midnight and before 6am when children are asleep.

In their view, media owners would argue that such stringent controls amount to gagging the press or worse still, curtailing press freedom. Much as they feel that this watershed clause infringes on their freedoms, other stakeholders seem to be thinking otherwise and are indeed in support of the Act.

A rare outburst from one of the Civil Society watchdogs illustrated this sentiment aptly at the forum. He asked the CCK to tell him when it would start switching off air such “promiscuous radio frequencies polluting our airwaves and corrupting our children”.

Now the question to ask is this: should broadcasters, especially those holding free-to-air licenses be allowed to broadcast any content no matter how some of such content may be offensive to sections of our populations? Is there any country in the world where such absolute freedoms exist? And if the government were to accord self regulation to the Media Council which is dominated by the same media owners, will they effect these rules and punish one of their own?