Background Note

The Media, Legal, Regulatory and Policy Environment

in Kenya

A Historical Briefing

By

Peter Oriare Mbeke

Lecturer
School of Journalism and Mass Communication, University of Nairobi, Kenya.

Commissioned by the BBC World Service Trust

To be read in conjunction with

BBC World Service Trust Policy Briefing No. 1

The 2007 Kenyan Elections and their Aftermath: the role of Media and
Communication
(www.bbcworldservicetrust.org)

March 2008
The Media, Legal, Regulatory and Policy Environment in Kenya

A Historical Briefing

Introduction

The mass media and communication sector in Kenya remains vulnerable to

system-wide pressures such as the recent post-election violence and the
resulting ban on live broadcasting because of the weak, irresolute and
inadequate legal, regulatory and policy framework inherited from the colonial era.
The growth and development of the mass media and communication has been
slow, stunted, haphazard and often inconsistent with public and investor
expectations over the years because of the disenabling legal and policy
environment. Political, social, cultural, economic, globalization and technological
forces influenced the legal, regulatory and policy environment throughout the
history of Kenya.

Laws governing the media in Kenya are fragmented and exist in different
sections of civil and criminal laws. The three sources of press law in Kenya
include the Constitution of Kenya, the Statutory Law; and the Common Law. The
Constitution of Kenya is the supreme law of Kenya and guarantees the right to
freedom of expression: However, it does not mention freedom of press and other
media specifically; provides limitations of the fundamental rights and freedoms
under vague circumstances thus allowing for violations of same rights 1.

The relevant sections of the Statutory Law of Kenya, some of which are
controversial, that deal with media (mainstream media, vernacular media,
community media and even new media such as SMS messages and blogs)
include: The Defamation Act, Cap 36; The Penal Code, Cap 63; The Books and
Newspapers Act, Cap 111; Copyright Act, Cap 130; Preservation of Public
Security Act, Cap 57; Public Order Act, Cap 56; Film and Stage Plays Act, Cap
222 (1962); Chief’s Authority Act, Cap 128; Official Secrets Act, Cap 187 of 1968;
Police Act, Cap 84; Armed Forces Act, Cap 199; Communication Commission of
Kenya Act of 1998; Kenya Broadcasting Act, Cap 221 of 1998, ICT Act of 2007
and the Media Act, 20072. The key media regulators are the Ministry of
Information and ICT, Communication Commission of Kenya, Media Council of
Kenya, Kenya Film Commission among others. The key policy currently is the
ICT policy and several other sessional papers.

Colonial Era (1895-1962)

The legal, regulatory and policy framework governing media during the colonial
era was closely tied to the political and economic interests of the colonial

1
See David Makali’s Media Law and Practice: The Kenyan Jurisprudence, 2004
2
See International Commission of Jurists-Kenya Section’s State of Freedom of Information in Kenya,
1999.
government and white settler communities. The nationalist movement, the Mau
Mau war, the 1952 Emergency and Her Majesty’s government commitment to
give Kenya independence also influenced colonial laws and policy towards
media. The authoritarian colonial government’s dominant perception of the Press
was always that of an unnecessary evil that deserved close supervision and
control3. Initially, the Press was merely a vehicle for disseminating government
information to the citizenry especially the White setter communities. However, the
colonial government adopted draconian laws such as the Newspapers’
Ordinance (1906) to deal with harsh political realities of the time. As early as
1920s, nationalist movements and Press had started opposing paternalistic
colonial policies such as forced alienation of land, forced labor and taxation and
racial segregation. The colonial government feared a free and thriving nationalist
press that acted as the mouthpiece for political independence. It enacted the
Penal Code in 1930, the Emergency Order in Council in 1939, repealed The
Newspaper Ordinance in 1950 to control alleged seditious nationalist publications
such as Sauti ya Mwafrika, Uhuru was Mwafrika, African Leader, Inooro ria
Agikuyu among others. The breakout of the Mau Mau war and the Declaration of
Emergency in 1952 gave the colonial government the excuse to ban all
indigenous publications and to intensify propaganda against the nationalist
movement4.

However, the colonial government became conciliatory towards the media after
the lifting of the emergency ban; and after it became clear that the commitment
towards Kenyan independence was irreversible. For the first time colonial
administration not only allowed publishing of district political association
newspapers but also sponsored some district newspapers such as Kihoto, a
Kikuyu weekly; Thome in Kamba, Ramogi in Dholuo. Unfortunately, they undid
the gains achieved so far by enacting the Books and Newspapers Act in 1960 to
control the proliferation of the nationalist press.

The colonial government strictly controlled and censored radio programs since
inception in 1927. The fairness doctrine meant nothing to the state sponsored
radio station as it heightened propaganda against the Mau Mau in 1952,
trivialized the nationalist ideas while closing their eyes to human rights abuses by
the colonial state5.

The Colonial government’s paternalistic broadcasting policy hindered the growth

of a holistic national broadcasting system in Kenya. Originally, Cable Wire
Limited, the radio operator, served only Whites and Asians. The Department of
Information, formed in 1939, served the African Languages Broadcasting Service

3
See David Makali’s Media Law and Practice: The Kenyan Jurisprudence (2004)
4
In David Makali’s Media Law and Practice: The Kenyan Jurisprudence (2004)
5
See the Ministry of Tourism and Information’s Discussion Paper for A Broadcasting Policy, 2004,
Government of Kenya.
that transmitted programmes in eight languages only 6. Its attempt to provide the
country with a nation-wide broadcasting system failed in 1954 after rejection by
White setter communities. The government set up the Kenya National
Broadcasting Service (KBS) in 1959 following positive recommendation by the
Pound Commission in 1959. It is ironic that the White settler communities
endorsed radio and TV broadcasting only a few years before independence. The
KBS, owned by foreign investors, was modeled along the line of BBC as an
independent and autonomous public broadcaster because of colonial anxiety and
tension regarding irreversible developments towards political independence.
Therefore, colonial government did not put in place the foundation for a thriving
home-grown indigenous broadcasting system.

Post-Independence Kenyatta Era (1962-1978)

Former President Jomo Kenyatta and his nationalist colleagues who took power
upon independence were keenly aware of the power of the Press and set out to
manipulate and control the media for propaganda purposes. The factors that
shaped media law and policy during the Kenyatta era include the urgent need for
national unity and development, political rivalry and ideological issues
surrounding media ownership. The Kenyatta government preferred a co-opted
media that would contribute to nation building and development. The government
was averse to an independent and foreign owned media playing a watchdog role
that could cause disaffection towards the young government. While the
independent government nationalized KBS in 1964 and named it Voice of Kenya
(VOK), its intentions for the print media were still born.

The independent government was intolerant towards the Press and enacted the
Official Secrets’ Act in 1968 to deal with a series of leaks that made the
government vulnerable to political pressure. The political rivalry and fall out
between President Kenyatta and Oginga Odinga, the Vice-President in 1969,
played itself in the Press and set the tone for future government engagement
with media at large. The government’s ban of its own mouthpiece the Pan African
Magazine because of fear of internal criticism 7 illustrates its intolerance towards
media.

Moi Era (1978-2002)

Daniel Arap Moi became President in October 1978. Several issues influenced
his attitude towards the mass media, particularly the intense political rivalry
between Kenyatta and Odinga, an attempted military coup in 1982 military coup,
economic recession that led to International Monetary Fund’s structural

6
The eight languages were Luo, Kikuyu, Kamba, Kipsigis, Nandi, Luhya, Kiswahili, Arabic broadcast
from Nairobi, Nyeri, Kisumu and Mombasa.
7
See Marcel Rutten, Allamin Mazrui and Francois Grignon’s Out For The Count: The 1997 General
Elections and Prospects for Democracy in Kenya (2001).
adjustment programs, and popular agitation for economic and political
liberalization and globalization. The eight-hour battle for the control of the
microphone at KBC during the 1982 attempted couple especially hardened Moi’s
position towards the mass media.

The government restricted and limited political freedoms making Kenya a de Jure
political state. Dissent was criminalized and open clampdown on critical press
enhanced. The government harassed the media through sedition trials of the
underground press and later banned independent and critical publications such
as Beyond magazine in 1988; the Financial Review in 1989; Financial Review in
1989; Development Agenda and Nairobi Law Monthly in August 1989 September
1990 respectively. Between 1988 and 1990 about 20 publications were banned
in Kenya8.

The government also targeted the foreign press. It ordered local media to stop
publishing news by foreign wire services for allegedly misinforming the world
about events in Kenya and deported a British Journalist in December 1988
following the queue-voting fiasco. The Voice of Kenya was not spared either and
was renamed Kenya Broadcasting Corporation, designated as a parastatal and
mouthpiece of the government in 1989.

The repeal of section 2A of the constitution in 1991 – which had until then
ensured one party rule - not only ushered in plural politics but also precipitated
the liberalization of media and communication sector. The introduction of multi-
party politics in 1991 widened the scope of political and press freedom and led to
the proliferation of independent newspapers and magazines such as Economic
Review and Finance.

The proliferation of mass media, economic demands and pressure from donors
and civil society forced the government to review the laws governing the media
with a view to liberalizing the airwaves, abolishing of restrictive media laws, and
harmonization of Kenya Post and Telecommunication and Kenya Broadcasting
Acts Acts.

Liberalization of the airwaves started in 1991 albeit unstructured and went on –

somewhat grudgingly - over the years. The Attorney General set up the first Task
Force on Press Law in 1993 to review and make recommendations on Press Law
providing for a comprehensive legal framework for the exercise of freedom of the
press and the development of dynamic and responsible print and electronic
media.

Although the Hillary Ngweno Task Force worked well with the media in producing
a report, the resulting bills failed to capture the spirit of the Task Force 9. The

8
See Kenya Human Rights Commission reports, 1997.
9
See Broadcasting Pluralism and Community Broadcasting in Eastern Africa: A Survey, Panos Institute,
1998.
government published without consultations The Kenya Mass Media Commission
Bill (1995) to regulate the operations of the mass media; and The Press Council
of Kenya Bill (1995) for the registration of the Press Council of Kenya to regulate
the conduct and discipline of journalists and the mass media 10. The media, civil
society and opposition parties rejected the bills because they were considered to
be in bad taste, draconian, failed to protect the right to information, failed to
protect journalists, publishers and broadcasters and gave government unfair
representation in proposed regulatory body 11.

The government tactfully shelved the two bills and reconstitution of a Task Force
in 1996 with Horace Awori, former chairman of Foreign Correspondence
Association, as the chairman. Although the process was participatory and broad
ranging, the final report presented to government in May 1998 failed to reflect the
main concerns of media. The Awori Task Force report was in this sense similar
to the 1995 rejected bills.

The media rebelled against government led review processes and instead
endorsed a Kenya Union of Journalists’ led media review task force. The Kenya
Union of Journalists prepared the Media Bill 1998: Framework for Free and
Independent Press for the Task Force on Press and Media Law in April 1998. It
made recommendations for the establishment of an Independent Mass Media
Commission and the Media Council of Kenya and the repeal of section 79 of the
Constitution of Kenya and replacement with a new provision that would
guarantee freedom of the media, protection of journalists, publishers,
broadcasters and right of access to information 12. The government ignored it.

The pressure to review media laws increased and Moi reluctantly caved in to
pressure during the 1997 Inter Party Parliamentary Group talks to repeal sections
52, 53, 54, 57, 58, 66, 67 and 121 of the State Law that hindered freedom of
expression, assembly and which criminalized the free flow of published
documented information in Kenya 13.

Throughout the attempts to review media laws, there was a general lack of
linkage between task forces and bills on media law and telecommunication law 14.
Telecommunication services, characterized by political interference, excessive
controls, low universal access to information, low internet connectivity, low quality
and high prices, had been neglected for a long time and were limited to major
towns to the exclusion of rural communities. Internal, regional and global market
demands as well as the economic promises of privatization forced the
government to half-heartedly review the Kenya Post and Telecommunication Act.
10
See Kenya Gazette Supplement No. 64 (Acts No. 3, 1998, Nairobi, November 1998.
11
See Kenya Union of Journalists’ Media Bill 1998: Framework for Free and Independent Press (1998)
12
See Kenya Union of Journalists’ Media Bill 1998: Framework for Free and Independent Press (1998)
13
See Marcel Rutten, Alamin Mazrui and Francois Grignon’s Out For The Count: The 1997 General
Elections and Prospects for Democracy in Kenya (2001)
14
See Ministry of Tourism and Information’s Discussion Paper for Broadcasting Policy, March 2004,
Government of Kenya.
Initially the government split KP&TC into two in March 1997 through the Kenya
Communication Bill (1997) and the Postal Corporation Bill (April, 1997 15).
Unfortunately, the government did not liberalize the sector fully when it took the
bill to Parliament in 1998. It finally dismantled KP&TC into the Communication
Commission of Kenya, TelKom Kenya Limited and Postal Corporation of Kenya.
This was a case of half-hearted liberalization motivated by political and economic
interests to create a mechanism to continue control practices in the sector.

Kibaki Era (2003-2008)

President Kibaki came to power on the promise of change in the 2002

Presidential Elections. His government was largely seen as a reformist one that
would decisively address the legal, regulatory and policy flaws that had
undermined governance and crippled social-economic development in Kenya 16.
He took power when the country was in recession and the economy recording
negative growth. His priority was to deliver a new constitution within 100 days
and part of that package contained progressive laws on media.

Indeed, the Chapter six on the Bill of Rights Part two Sections 48, 49, 50 and 51
of the proposed constitution 17 stipulated the rights to freedoms of religion, belief
and opinion; freedom of expression; freedom of the media; and freedom of
access to information respectively.

Unfortunately, the new constitution was never implemented by the Kibaki

administration despite approval during the 2005 Referendum on the new
constitution. The media laws would form the subject of another constitutional
review according to the National Accord and Reconciliation Act 2008.

The Kibaki administration remains ambivalent towards media. It created the

Office of Public Communication in 2004 that addresses the media on critical
policy issues weekly18. Despite that it has had difficult relationship with an
independent, assertive and watchful media in Kenya. Following media exposures
of the Anglo Leasing Scandal 19 and protracted media stand offs, armed police
raided the Standard Group headquarters in 2004, beat journalists, burnt
newspapers, destroyed property and illegally dismantled and confiscated
equipment under the guise of national security threats.

15
See The Kenya Gazette Supplement Bills, 1997, Nairobi, 14th March, 1997.
16
See the Annual Progress Report 2004-2005: Economic Recovery Strategy, Monitoring and Evaluation
Directorate and the Investment Programme for the Economic Recovery Strategy for Wealth and
Employment Creation 2003-2007.
17
See the The Kenya Gazette Supplement No. 63, 2005: the Proposed New Constitution of Kenya
18
See The Office of Public Communication’s website at www.communication.go.ke
19
The scandal centred around a multimillion dollar fraud – reported by anti corruption Czar, John Githongo
– for a major contract for provision of passport printing systems in 2002. The media were instrumental in
making details of the fraud public.
Following a humiliating defeat during the 2005 Referendum and confronted with
formidable ODM opposition, low public rating and hostile media, the Kibaki
administration changed tack towards the media. It created the Media Council of
Kenya in 200720 for the conduct and discipline of journalists and the media, and
as a mechanism to provide self-regulation of the media. Unfortunately, it also
created a mechanism for control through financing and appointments for MCK.

The attitude of the administration towards media came to head when in the
middle of announcing of flawed election results, it banned live broadcasting, and
later formed a task force to investigate the conduct of media in elections and
post-election violence and threatened to withdraw its support for the Media
Council of Kenya.

The government has put in place the ICT Act 21, policy and strategy. These ICT
instruments were motivated by the quest to improve governance, create jobs and
improve the economy in a globalizing world. Unfortunately, the ICT Act 2007 is
inadequate in policing and regulating the mass media and communication sector.
Although it addresses the establishment of ICT villages and ICT centres at the
grassroots, it does not address the development of community media and
broadcasting in vernacular languages. For a long time the government has not
supported community media because its fear of empowering the citizenry in ways
that would challenge its hold on power and demand good governance. Media
owners have not been keen to see this sub-sector develop as they consider them
competitors that would undermine their reach.

The Kibaki administration has also prepared the Freedom of Information Bill
(2007) that would deal a death blow to the Official Secret’s Act and improve
access to official information and governance.

Conclusion and Way Forward

The mass media and communication sector in Kenya remains vulnerable to

system-wide pressures. The recent post-election violence and the resulting ban
on live broadcasting are just two recent examples of this. The causes of this are
weak, irresolute and inadequate legal, regulatory and policy framework inherited
from the colonial era. The growth and development of the mass media and
communication has been slow, stunted, haphazard and often inconsistent with
public and investor expectations over the years because of a disenabling legal
and policy environment. Political, social, cultural, economic, globalization and
technological forces influenced the legal, regulatory and policy environment
throughout the history of Kenya.

The legal, regulatory and policy environment is still hostile to media and
communication development but there is hope that it will get better if a better

20
See The Media Act, 2007 in the Kenya Gazette Supplement, Acts, 2007, Nairobi, October, 2007
21
See Ministry of Information and ICT’s website: www.information.go.ke
constitution is enacted, draconian laws repealed and new policies put in place.
Progressive laws governing media and communications in Kenya need to be
firmly entrenched in the proposed Constitution to provide impetus for steady
growth of the sector.

The government urgently needs a language policy that deals with the use of hate
speech in media and during elections in particular. The proposed Ethnic
Relations Commission would champion this. The broadcasting policy need to
integrate community media, public and private commercial broadcasting
principles and regulatory framework. A comprehensive communication policy that
addresses such important issues as media ownership and control, programming
and local content, education and training, capacity building for community media
among other issues is urgent.