Stopping live broadcasts in Kenya isn't easy

What you need to know:

  • Traditional media, particularly those with a national reach, have tended to self-regulate under the guidance of the Media Council of Kenya.
  • The last time live broadcasts were banned in Kenya was during the middle of the 2007/8 post-election violence.

  • The government, the regulators, the media owners and the editors have a duty and responsibility to serve the best interest of the Kenyan citizen - as opposed to serving sections of the political actors.

There were unconfirmed reports that the Communications Authority of Kenya (CA) requested television stations not to air live broadcasts of increasingly violent street demonstrations.

Would such a request be legal? From my reading of the Kenya Information Communication Act, there is no legal basis for such an order or request.

Apart from that, Article 34 of the Constitution provides for a free and independent media.

That said, we do have a contentious situation on the ground following the highly contested Presidential election that is likely to persist – beyond what the Supreme Court ruled in favour of upholding President Kenyatta’s re-election.

Traditional media, particularly those with a national reach, have tended to self-regulate under the guidance of the Media Council of Kenya.  

DEBATABLE AND OPEN

In most developed democracies, this is the formal structure that acts as the first point of call for aggrieved parties to have their issues heard and determined.

However, the Media Council can only handle what in legal jargon is called ‘ex-post’ rather than ‘ex-ante’ regulatory matters. 

Ex-post regulations are those that deal with what happens after the fact, while ex-ante aims to pre-empt or prevent negative actions from happening.

It is clear that broadcasting alarming messages and actions which can inflame ethnic hatred produces negative political and socio-economic repercussions.

In some cases, reporting such a matter to the Media Council after the fact (ex-post) may perhaps be too late, in the sense that the damage may already have been done.

However, banning live broadcasts may be considered pre-judicial, if not extra-judicial and ultra vires. A pre-emptive action against live broadcast therefore presupposes the politician’s or their supporters’ actions are going to be of criminal nature. It also presumes that the entity banning live broadcasts does indeed have the legal powers and mandate to do so.

Both of these points are quite debatable and open to different interpretations.

The last time live broadcasts were banned in Kenya was during the middle of the 2007/8 post-election violence.  Even then, the ban was issued by a Minister of state, by invoking the notorious clause on ‘preserving national security’. This clause has since been revoked, following various legislative and litigation activities to align our laws to the new Constitution. 

ACTIVE SHOOTING

It seems, therefore, that we do not have substantive legal basis to ban live broadcasts. Are media houses therefore left to their own devices – to broadcast anything and everything that they come across, even at the risk of destroying our country? Not really.

There are lessons we can take from the developed economies.  In the United States, for example, the media has an unwritten rule never to show raw footage of how their soldiers died in action.

Even on the civilian front that has experienced increased, violent mass shootings, you hardly get raw images of the victims or of active shooting.

Americans have learnt the art of reporting without promoting or celebrating tragic events.

This did not come from laws or directives from some central entity. It came from years of cultivating trust between all the actors and stakeholders in the media industry.

All stakeholders must therefore have a shared vision, whose common denominator is the public interest, such that what is broadcast should advance, rather than destroy, citizen interests.

SHARED VISION

Government, regulators, media owners and editors have a duty and responsibility to serve the best interest of all Kenyan citizens, not those of political actors.

If this is the guiding principle, then the question of what to broadcast, when and how to broadcast will not be in contention, since all stakeholders will have a shared vision.

A simple scan of the broadcast media, particularly vernacular, community and social media, gives one the feeling that we have a long way to go to understanding such a shared vision. 

One way to get us started on this journey of improvement is for the regulator to have regular sessions with stakeholders on matters media, to cultivate the trust and agree on a shared vision.

That way each stakeholder will be reading from the same page in times of crises rather than from some real or imagined directives that may be construed as offending the independence of media.

Mr Walubengo is a lecturer at Multimedia University of Kenya, Faculty of Computing and IT. Email: [email protected], Twitter: @Jwalu

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