The High Court has declared a section of the Kenya Information and Communications Act unconstitutional, effectively curtailing the Communication Authority of Kenya’s (CA) power to set media standards. Justice Lawrence Mugambi, who presided over the case, ruled that the role of setting, regulating, and monitoring media standards lies exclusively within the MCK’s purview, emphasizing the Council’s constitutional mandate to protect and uphold media independence.
The judgment addresses longstanding tensions between the two regulatory bodies and confirms MCK’s authority in establishing programming codes for the media industry, a responsibility CA had sought to assert in its efforts to regulate broadcast content. “The broadcasting code for broadcast media as prescribed by the CA is unconstitutional, null, and void,” Justice Mugambi ruled, further clarifying that any standards CA prescribes must not interfere with MCK’s mandate.
The case was initially filed in 2019 by the Kenya Union of Journalists, challenging CA’s authority to determine programming standards. According to the Kenya Union of Journalists, CA’s role in the broadcasting sector should focus on technical licensing and regulation, while MCK should be the one overseeing media content and standards. The court’s decision affirms this stance, reinforcing the media sector’s legal framework as outlined in Kenya’s constitution.
Court Recognizes MCK’s Mandate to Uphold Media Standards and Independence
Justice Mugambi’s ruling references Article 34 of Kenya’s Constitution, which guarantees media freedom and autonomy, noting that MCK’s role aligns with the principles set out in this article. He reiterated that MCK is the body entrusted with upholding ethical standards, protecting children and vulnerable audiences, and ensuring that media operations in Kenya are conducted responsibly and ethically. By assigning MCK this role, the court seeks to strengthen Kenya’s commitment to an independent media sector and to advance the rule of law.
“This court must uphold the independence of the media as protected under Article 34, which advances the rule of law and upholds the principles of the constitution,” Justice Mugambi stated, underscoring the significance of safeguarding MCK’s independence from undue interference by CA.
Six-Month Suspension to Ensure Child Protection
Despite the court’s decisive ruling in MCK’s favor, Justice Mugambi acknowledged the necessity of age-appropriate standards for protecting children and vulnerable viewers from inappropriate media content. As such, he suspended the order nullifying the CA’s broadcasting code for six months. This temporary suspension allows MCK sufficient time to develop content standards that ensure child protection while preserving media freedom. During this period, MCK is expected to review existing policies and develop regulations that address CA’s concerns about child safety in programming.
In his ruling, Justice Mugambi highlighted the need for comprehensive policies that protect children without encroaching on MCK’s authority. “Considering that the need to protect children from inappropriate media content is paramount, the court suspends the order declaring the broadcasting code by Communication Authority unconstitutional for six months,” he said. This measured approach balances media freedom with public interest, giving MCK time to take the necessary steps to establish effective guidelines.
CA’s Good Intentions Are Insufficient Without Legal Validity
While CA argued that its programming code aimed to protect children from harmful content, Justice Mugambi emphasized that intentions alone are not enough to validate such regulations. Without the necessary constitutional mandate, CA’s efforts to enforce programming standards encroached on MCK’s exclusive domain. Justice Mugambi clarified that regulatory actions must align with statutory authority, highlighting that good intentions cannot override legal boundaries.
The court’s ruling delineates a clear boundary between CA’s role in issuing broadcasting licenses and MCK’s responsibility for setting media content standards. While CA may continue to prescribe licensing standards, it cannot infringe on MCK’s domain over media ethics and content.
Implications for Media Regulation and Independence in Kenya
This ruling has significant implications for Kenya’s media landscape, affirming MCK’s central role in media regulation and reinforcing the constitutional separation of powers between CA and MCK. By consolidating MCK’s authority, the court has strengthened safeguards against potential interference with media freedom, upholding the independence of media oversight and the spirit of Kenya’s Constitution.
The decision highlights a crucial aspect of media governance in Kenya, underscoring the importance of constitutional protections for media independence and the need for distinct regulatory boundaries. As the MCK prepares to develop its own content guidelines, the judgment provides a foundation for regulatory clarity that respects the principles of freedom and autonomy within Kenya’s media sector.
This landmark ruling not only affirms MCK’s mandate but also sets a precedent for future cases where the limits of regulatory authority in the media industry may be tested. For the media, journalists, and the public, the decision signals a commitment to upholding media freedom as enshrined in Kenya’s legal framework, ensuring that regulation serves the public interest without undermining the principles of an independent press.
