A media governance storm has been brewing for the past month. So far pre-occupying a handful of state officers, media regulators, editors, and journalists, how it is handled could affect the public’s right to know and the future of Kenya’s independent press. It could also demonstrate whether the Kenya Kwanza administration has learned from the pitfalls of the Jubilee administration.
Following a request from the ICT Ministry, the Attorney General has legally advised Cabinet Secretary Eliud Owalo that media employees, media association leaders and public servants cannot serve as members of the board of the Media Council of Kenya. The Attorney General justifies his position by arguing that this will preserve the Media Councils’ independence, avoid conflicts of interest and paralysis in the functioning of the Council and especially, the commission that handles complaints.
As always, the request has not emerged out of a vacuum or a random concern with strengthening media freedom. The moment is pregnant. The Media Council is in the final stages of a selection process for the Chairperson and Board and a short list is known. Within days of the legal advisory, individuals had petitioned the court to urgently stay the selection process raising concerns with number of journalists shortlisted. Fortunately, the court vacated the stay on 27 February and has given a green light for the Selection Panel to proceed.
The dispute has now boiled over publicly. MCK Selection Panel Member William Oloo-Janak is now claiming executive overreach. He argues that the Selection Panel did not seek any legal advice from the Attorney General on the suitability and qualification of journalists to sit on the MCK Board.
Independent and closer reading of the advisory validates some of Janak’s concerns. Established under the Media Council Act (2013), the Council was established within the model of co-regulation that balances industry self-regulation and state regulation. Article 7 allows for Board selection from the media industry and empowers the selection panel to appoint board members free from external interference. In this, MCK is no different from several other agencies over the last decade.
The Kenya Medical Practitioners and Dentists Council contains practicing doctors and public health officials. Practicing lawyers are represented on the Council of the Law Society of Kenya. The Judicial Service Commission includes judges and magistrates from all four levels of the judiciary namely Magistrates, High Court, Court of Appeal, and the Supreme Court.
Self-regulation is important. It simultaneously translates three constitutional values of public participation (article 1), the responsibility citizens and corporate bodies have to defend constitutional values (Article 3) and freedom of association (article 37). In passing the constitution in 2010, we voted for a participatory democracy not a liberal Western-styled one, where citizens delegate their sovereignty to states to govern.
In this context, the Attorney General legal advisory is too narrowly interpreted, vague and subjective. Article 24 (2) of the Constitution provides that any law limiting any right must be clear and concise. While not binding on MCK, blanket AG advice that any person affiliated with any media house should not be considered for board membership is not helpful. It neither advances the constitution nor does it set out clearly out the risk threshold or inevitability of conflict.
Most journalists have worked at one point or another for one of the five big media houses namely Nation Media Group, Standard Group, Radio Africa, Kenya Broadcasting Corporation and Royal Media Services. It is also worth noting that past journalist representation has not been a major legal or policy concern.
No doubt, there will be moments when Board members will make decisions against peer journalists, their media houses, or their competitors. However, like all conflict of interests so familiar in all our lives, this can be resolved by board members declaring their interest before matters are debated.
If there was a time that we needed a joint industry and state approach, it is now. Mass media faces massive disruption from new digital models that cannot yet guarantee solid revenues, news avoidance by most citizens and active disinformation and misinformation on unregulated social media platforms. Locking media practitioners out of the media council carries great risk.
Kenya Kwanza can learn a thing or two from Jubilee’s experience with the non-governmental sector. While the second administration de-escalated the all-out-war in 2017, it blocked implementation of the Public Benefits Organisations Act (2013). The Act provided for a clear co-regulatory framework for ministries and NGOs to dialogue and work together. The State and NGOs drifted further apart, policy dialogue shriveled up and the two still work in separate worlds uncomfortably hung together by an archaic one-party law passed in 1991.
Our constitution has power if we let it breathe and guide us. Trusting the judgement of those familiar with the media industry and calling them out when necessary is a better option than locking them out altogether. The MCK is advised to follow its own statute and the AG to reconsider its non-binding advisory.