Arbitration key to resolving media disputes, boosting professionalism

For too many journalists, one lawsuit could bankrupt them or their newsroom. This ominous statement by Josh Stearns has become a sad reality for the Kenyan media industry.

The local media industry has faced numerous libel suits that end up in exorbitant damages for civil defamation against media organisations and journalists in the courts.

This has had a chilling effect on freedom of expression by self-censorship, which stifles the publication of sensitive high-profile stories, as well as a threat to media sustainability given the accompanying hefty costs.

This undermines the media’s role as a guarantor of freedom of expression, vital for democracy as it gives the citizens freedom of speech, the right to information and the representation of diverse opinions in a heterogeneous society. A free media sector fosters responsible journalism, hence a truthful, balanced and fair account of matters of public interest.

All media-related complaints—by citizens against media firms or journalists or journalists, or media firms against state or non-state agencies—thus need a dedicated alternative dispute resolution mechanism tailored for the sector that avoids huge costs or protracted court litigation. More importantly, its decisions are binding and enforceable in court.

The Media Complaints Commission exists under Section 27 of the Media Council Act, 2013 as the complaints mechanism in the media sector. It is anchored under Article 159 of the Constitution, which promotes alternative dispute resolution processes such as mediation.

The commission comprises a chairperson with qualifications of a High Court judge and six other persons with knowledge and diverse experience in journalism, media, business, finance or related social fields.

In the Kenyan judicial system, it falls under Article 169 (1) (d) as a quasi-judicial tribunal established by an Act of Parliament and its decisions are appealable to the High Court. It receives administrative support from the Media Council of Kenya (MCK) secretariat, a statutory body set up in the same law as a co-regulation system to defend the independence and operational autonomy of the media.

Mediate or adjudicate in disputes

Its main function is to mediate or adjudicate disputes between the government and the media or the public and the media and also intra-media, on ethical issues, thereby ensuring adherence to high standards of journalism as provided for in the Code of Conduct for the Practice of Journalism in Kenya. It also determines appeals against MCK’s decisions in its regulatory function.

The commission is unique in its set-up under the Bill of Rights as a vanguard to defend the public interest in media practice and ensure professional journalism under Articles 33 and 34 of the Constitution. Similarly, MCK takes up complaints on its own initiative and forwards them to the commission for determination, wherein its opinion the complaint has public interest implications.

The diverse calibre of cases it handles confirms trust in the system and advancement of the rule of law. Recent determinations include a matter between immediate former National Treasury Cabinet Secretary Ukur Yatani and Nation Media Group (NMG); the Governor of the Central Bank, Dr Patrick Njoroge and NMG; and Calisto Okisa and the Standard Group.

The case resolution rate of the commission currently stands at 90 per cent. 

Journalists and media practitioners who continue to face violations such as threats, harassment, censorship and access denial from state and non-state actors are encouraged to seek recourse to the reliefs granted under this mechanism. Similarly, any member of the public aggrieved by the media should engage the commission for closure.

Arbitration offers benefits such as being generally faster and more effective than traditional court litigation. Proceedings are characteristically confidential, which can be important in media cases where public exposure may be unwelcome. Arbitrators often have specialised knowledge in media law, which can lead to more informed decisions and necessary programmatic interventions. 

Furthermore, arbitration allows for more flexible processes and can be customised to the specific needs of the parties involved. And by avoiding the courts, parties can avoid the negative publicity and public scrutiny that can often accompany court litigation.

Mr Oketch is the chairperson, Media Complaints Commission. [email protected].