A plan to establish a statutory basis for the Media Council of Kenya is very bad news, writes Mitch Odero in The Standard. It would undermine self-regulation, and pose a threat to press freedom.ÂÂÂ
Mitch Odero writes in The Standard :
The Media Bill 2006 seeks an Act of Parliament for the establishment of the Media Council of Kenya (MCK).
The logic for this is that MCK lacks ‘teeth’ to enforce its verdicts. It has further been argued that despite the intended legislation, MCK will retain its independence as a self-regulated organization such as the Law Society of Kenya (LSK) and would be an efficient enforcement team like other professional associations.
It must be emphasised that the main and only objective of the media is service to the people. Accordingly, journalists are accountable to the people  they are not a service to the Government and those in authority and they are not accountable to the Government and those in authority.
This arrangement in a democratic society enables the media to perform their role as the Fourth Estate (or the Fourth Power).
As the Fourth Estate, the media are expected to conduct surveillance on the Legislature (Parliament), the Executive (Government) and the Judiciary on behalf of the people. In other words, the media become the bridge of trust between the people and the other three estates.
Those who subscribe to this liberal thinking would maintain that the Fourth Estate should not expect the other three to regulate it, give it authority and independence of surveillance over them.
The role of Government, Parliament and society is to ensure a constitutional guarantee for freedom of the Press as the Bomas constitutional review talks, representing Wanjiku, proposed.
It is wrong to assume that a media body such as MCK should work like LSK and other professional associations supported by Acts of Parliament. If the media believe that they constitute the Fourth Estate, then media professional associations, particularly MCK, should not be required to be like LSK and others as if they, too, are part of the Fourth Estate to justify the ‘likeness’.
No other enterprise has the task and responsibility of pursuing truth (which often hurts) except journalism. As such, to regulate the performance of the media with the force of an Act of Parliament would in time also mean to regulate the pursuit of truth.
he challenge of pursuing truth is that what may appear to be an error today may turn out to have been the truth tomorrow after the ‘teeth’ do their biting.
The danger that a statutory media council opting for a punitive approach for enforcement is that it could become a media censorship body. There is an assumption in a section of the media that would want the rest of us to believe that the Bill would (a) not be adopted by the Government and (b) even if adopted, the Cabinet and eventually Parliament would be so liberal and understanding that it would enact a Media Bill we would all he happy to identify with.
This is disturbing in view of recent experiences and relations between the media and the Government. If the media’s main responsibility is to the people, then the mediation approach, best offered by self-regulation, is the most appropriate because it allows for healing in the African cultural context of the victim-offender therapy.
The punitive approach of ‘teeth biting’ may be appropriate for other professional associations whose main responsibility is not to the people and the pursuit of truth. The approach leaves wounds unhealed and the victim and the offender suffer. The media, with their responsibility to the people, should not leave unhealed wounds and thus let the society suffered.
For instance, a doctor, may make an error, leading to death. The error is buried in a grave. A journalist’s error cannot be buried in a grave.
In its preamble, the Bill seeks an Act of Parliament which would enforce, among others, the "discipline of journalists" as prescribed by a self-regulated but statutory (contradiction) media council. In Section 44, enforcement of discipline will include orders that journalists concerned be struck off the accreditation list for a specific period.
The role of the media owners notwithstanding, journalists could also mean the editor or editorial director publishing an assumed offending editorial. How will this clause be applied to foreign correspondents in the country?
How will it apply to assumed offending published articles from international wire agencies? How about non-accredited guest writers commissioned by media houses because of their specialisation or authority on certain subjects?
Section 45 provides that decisions of MCK or its complaints’ committee be adopted and enforced as court orders unless an appeal is filed within 30 days. This needs further review. Decisions are to be made by council members to be nominated by, among others, the members of the Media Industry Steering Committee (MISC). Here is a catch.
Section 8 (d) states that a council member must, before assuming office, take an oath before a judge of the High Court that he or she is committed to upholding and protecting the Constitution and the other laws (even if they are draconian). This means that the independence of MCK and its commitment to freedom of the Press will be lost. So is its responsibility to the people against draconian laws.
Section 9 (vii) states that a per son shall not qualify to be nominated to the council, in other words be disqualified, if ‘the nominating body becomes insolvent’.
This means that organisational members of the Media Industry Steering Committee should check their bank accounts to ensure they are not insolvent otherwise the council membership will be for those nominated by the LSK, Association of Practitioners in Advertising, Joint Forum of Religious Organisations, Association of Professional Societies of East Africa and United Disabled Persons of Kenya.
According to Section 3b, one of the purposes of the establishment of MCK is to institute legal proceedings. This is open to abuse because the legislation process of the Media Bill ends up with a State-controlled media council. Section 5 gives MCK the power to make recommendations on the employment criteria of journalists.
Journalism is a calling and strict yardsticks enforced by law may not always apply. The role of employers should be recognised.
Section 9 (v) states that a Government employee or one who holds a position of profit in Government will not qualify to be appointed to MCK. Should Kenya Broadcasting Corporation become a public broadcaster, as it should be, how will the clause apply?
Section 11 aims to establish another regulatory body, the Media Industry Advisory Board. How will it relate to the other regulatory bodies proposed in the draft ICT policy? The chairman will be appointed by the Chief Justice (a presidential appointee) or the LSK chairperson.
The authority will consider those nominated to be council members. A diminishing role of MISC is evident. It is also worth noting that the Advisory Board "shall have such other functions (read power) as may be conferred on it (by who?) or under this Act" (section 13) (ii).
A media council that becomes State-controlled or a censorship organ should not expect support from donor agencies. That means it will lean on Government for funding, with obvious consequences to its image and independence.
Section 32 states that MCK’s operating capital will come from, among other sources, a training levy (apparently to be imposed by the Government) to be collected and surrendered by media training institutions and another on revenue of the media houses.
This section promises grants  State grants  which would erode the council’s credibility. Currently, MCK depends on media contributions and development partners.
Section 43 (d) gives MCK additional duties  making rules on employment and remuneration of journalists. This section throws the collective bargaining system out of the window and renders the Kenya Union of Journalists redundant.
Freedom is better served by self-regulation. Regulation never works. Ideally, it should be guaranteed by the Constitution. The central feature of self-regulation is independence from Government control. The media have opted for a self-regulated media council to serve as a bridge of trust between the public and the media.
If a State-controlled media council cannot effectively protect the media and the public from manipulation, misinformation and disinformation. The media, therefore, gave the Media Council of Kenya unrestricted mandate as a mediation platform in the service to the public and for the protection of freedom of expression.
It is for these reasons that the Media Council of Kenya roots for protection of freedom of the Press and development of high standards of journalism among other activities, including complaints’ resolution.
Accordingly, the Media Council subscribes to the notion of Press responsibility as spelt out in the Code of Conduct for Journalism in Kenya. Drawn by the media, the code spells out guidelines and standards for professional conduct. It further helps to uphold a conscience for media’s social responsibility.
We are aware that the freedom of the Press imposes a corresponding responsibility on the media, involving the acceptance of and compliance with high ethical standards. Through responsibility, the media aim to serve the welfare of society by informing people and enabling them to make judgments about issues.
The code further upholds fair play with respect to the rights of people involved in news as well as observance of decency, giving the opportunity for reply, respecting confidentiality, accuracy and methods of obtaining information, among others.
Last October, the Media Council of Kenya was admitted to the membership of the World Association of Press Councils. During a congress in Bagamoyo, Tanzania, the association underlined that the media profession has a right to self-regulation through independent councils.
Should the Media Council of Kenya become a statutory body, it would have to withdraw from the world association.
* Odero is the chairman of the MCK Ethics and Complaints Committee. This article first appeared in the Standard
