The High Court has declared as unconstitutional a section of the Kenya Information and communications Act that confers power to the Communication Authority of Kenya to set standards and manner of programmes to be broadcast.
Justice Lawrence Mugambi said the role of setting media standards, regulating and monitoring is the purview of the Media Council of Kenya.
The regulator (CA) he said may develop and prescribe licensing standards relevant to broadcasting licenses but only if the same doesn’t meddle with the mandate of the Media Council of Kenya.
“Based on that, a declaration is hereby issued that the broadcasting code for broadcast media as prescribed by the CA is unconstitutional, null and void,” he ruled.
But this particular declaration by the court was however suspended for six months to enable the Media Council of Kenya to develop age appropriate standards to protect children and other vulnerable persons from inappropriate media content.
“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,” the judge said.
CA had argued that its programming code was meant to protect children from inappropriate content. But Mugambi said the fact that an act is done with good intentions isn’t sufficient to validate the same unless it’s proved that the decision was done validly.
He emphasised that it’s the responsibility of MCK to set and monitor the ethical codes for the protection of children and any other vulnerable group. This mandate he maintained is not for the CA.
“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,” Mugambi said.
The case was filed by the Kenya
Union of Journalists in 2019.
Its main contention was the constitutionality of the challenged provisions in relation to CA and MCK
mandate in regulating the media
industry.
