CHAPTER ONE INTRODUCTION
1.0 BACKGROUND TO THE STUDY But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great benefit, the clearer perception and livelier impression of truth, produced by its collision with error 1
It cannot be gainsaid that media plays a vital role in society in disseminating information, exposing the ills afflicting human beings and curbing the excesses of the Executive, Judiciary and Legislature. The term ³mass media´ is a collective term referring to the traditional press, 2
electronic media (radio and television) and cinema. Broadcasting has been defined as the 3
transmission of sound and vision programs by radio and television. The Copyright, Designs and Patents Act of 1988, a United Kingdom statute, defines a broadcast as "a transmission by wireless telegraphy of visual images, sounds, or other information which is capable of lawful reception by the public or which is made for presentation to the public". The electronic mass media have been burdened by a lot of numerous regulatory restrictions as compared to the print 4
media. Ironically, media finds itself at crossroads especially where it has its own µexcesses¶ to curb if self-regulation, self-censorship and need for adherence to professional ethics and standards are anything to go by. The rationale which has been given for this is that the radio spectrum is a finite resource which cannot accommodate everyone thereby imposing on the 5
government the duty of limiting access. Such restrictions in the broadcast media, provided for 1
Gray, J. & Smith G.W. (Eds.) (1991 ). (1991 ). On Liberty in Focus. Focus. New York, NY: Routledge London and New York. P. 37. Makali, D.(Ed.) (2003). Media Law and Practice: The Kenyan Jurisprudence. Jurisprudence. Nairobi: Phoenix Publishers Ltd p. 2728. 3 Broadcasting http://ency http://encyclopedia.farlex. clopedia.farlex.com/Broadcas com/Broadcast+media t+media (accessed on 19 January 2010) 4 Zelezny, J.D., Communications Law: Liberties, Restraints, and the Modern Media. California: Wadworth Publishing Co. p. 5. See also Gibbons,T., Regulating the Media. Media. London: Sweet and Maxwell; broadcast needs some some regulation to safeguard the interests of the audience and those using the media. 5 Ibid, The scarcity rationale which formed the basis in the Red Lion Broadcasting Co. v FCC 395 U.S. 367 (1969) as the primary justification for government intervention in broadcasting has been questioned on the basis of the 2
1
under the Kenya Communications (Broadcasting) Regulations 2009, have taken the form of licensing schemes, ownership and control, content requirements and programme code. Control of 6
the media have taken t aken the form of specific laws and regulations and the form of policy issues.
Much furore was raised over the Communications (Amendment) Bill 2008 which was later assented into law by the president. The thrust of the government¶s argument in defence of this legislation was that this was not a gag to press freedom but a means of regulating the media. The broadcast media has been brought under sharp focus especially in relation to the role it played 7
before the post-poll violence which included fanning ethnic hatred and hate speech. These were occasioned due to ³weak, irresolute and inadequate legal, regulatory and policy framework 8
inherited from the colonial era. Nevertheless, the media are not without blame. In deed: ³«the media are not entirely µresponsible¶. Left to their own devices, they have shown to be reluctant to tame their excesses and power. There is probably a lot to be said for more legislation over certain specific issues-ownership, advertisement, promotional methods and so on- to tidy up the flaws and gaps in the role and control of media to which more thought needs to be given´ 9
The electronic media in Kenya has for a long time been monopolized by the Kenya Broadcasting Corporation (KBC). It was founded in 1927 a nd runs one televisi te levision on service, t wo radio channels 10
and 16 regional ethnic stat ions. The repeal of section 2A of o f the constitution in 1991 apart from introducing plural politics in Kenya also liberalized the media and communication sector.
11
Due
to pressures from donors and the civil c ivil society, increase of mass media and econo mic demands,
consumer being inundated with a lot of programming choices arising from a market saturated with numerous channels of communication. The other justifications include: 1) broadcasters are public trustees of the airwaves 2) broadcasted contents enter homes in an intrusive manner and hold sway on the audience particularly children. 6 Bittner, J.R., (1991) Broadcasting and Telecommunication: An Introduction. Introduction. New Jersey: Prentice-Hall Inc p.17. 7 The Kenyan 2007 elections and their aftermath: The role of media and communication, policy briefing of the World Service Trust http://www.comminit.com (retrieved on 22 January 2010). Also check: Chapter Eight: The Media and the Post Election Violence. http://www.marsgroupkenya.org/pd http://www.marsg roupkenya.org/pdfs/2008/1 fs/2008/10/Waki_Chapters/C 0/Waki_Chapters/Chapter_8_The_med hapter_8_The_media_and_the_post_ele ia_and_the_post_election_v ction_v iolence.pdf (retriev iolence.pdf (retrieved ed 22 January 2010) p. 295-303. 8 http://downloads.bbc.co.uk/wo http://downloads .bbc.co.uk/worldservice/trust/pd rldservice/trust/pdf/kenya_media_l f/kenya_media_legal_framework egal_framework.pdf .pdf (accessed (accessed 3 October 2010). 9 Makali, D. (Ed.) supra p. 30-31. 10 Kenya Press, Media, TV, Radio, Newspapers http://www.p http://www.pressreference.co ressreference.com/Gu-Ku/Kenya.h m/Gu-Ku/Kenya.html tml (accessed 9 November 2009). 11 Makali, D. (Ed.) supra p. 30-31.
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the government was impelled to liberalize liberalize the airwaves, a irwaves, abolish restrictive media laws and 12
harmonize the Kenya Post and Telecommunication and Kenya Broadcasting Acts.
Liberalization of the airwaves were set in earnest in 1993 through a Task Force on Press law set up by the Attorney General to review and make recommendations on press laws and to provide a 13
comprehensive legal framework for both print and e lectronic media. FM radio stations and television channels have grown expansively over the years. For instance there are 15 radio stations in Nairobi, 13 regional or vernacular rad io stations, 6 television television stations stat ions in Nairobi, 7 14
satellite satellite televisi te levisions ons and one o ne regional TV station. With such a proliferation, therefore, especially with the rise of radio stations especially in the vernacular and FM radio stations, the need for some form of regulation is a question which need s legitimate attention. Accusations have been levelled on FM radio stations stat ions for using obscene and vulgar terms t erms in their talk shows and call-ins, broadcast disregarding the composition of the aud ience in terms of age and time and fanning ethnic hatred.15
The issue of licensing in the broadcast bro adcast media, the independence or o r lack of it of the Communications Commission of Kenya and the role of the Media Council in promoting ethical standards among Journalists are areas which need to be examined at depth.
1.1 STATEMENT OF THE PRO BLEM
Kenya has been rated ³just partly free´ in the World Press Freedom report titled: Freedom of the 16
Press 2008: A Global Survey of Media Independence. On one hand, the Standard Raid and the Communications Act 2008 appear to be an affront to press freedom. On the other hand, arguments have been advanced that the media have not been keen enough in what they publish or 12
Ibid. Ibid. 14 Print and Electronic Media in Kenya http://www.co http://www.communica mmunication.go.ke/media.asp? tion.go.ke/media.asp?id=46 id=46 (retrieved 11 February 2010). 15 Oburra, H., (2010, January 15) .The Failure of our FM Radio Stations. The Standard. Retrieved from http://www.standardmedia.co.ke/l http://www.standa rdmedia.co.ke/letters/InsidePage etters/InsidePage.php?id=20 .php?id=200000103 00001030&cid=17& 0&cid=17&.. 16 EALS Wants Retrogressive Retrogressi ve Clauses Clauses of the Kenya Communications (Amendment) 2008 Act Repealed 13
http://www.ealawsociety.org/.../P http://www.ealawsoc iety.org/.../Press_%20release_%2 ress_%20release_%20on_%20Comm 0on_%20Communications_%20 unications_%20Bill.doc Bill.doc (accessed 8 November 2010).
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air especially with regard to adult contents for children and statements which threaten national peace thus the need for a regulated press. Both sides of the divide d ivide have a case. The Kenya Media Act 2007 establishes the Media Council of Kenya whose functions are, inter alia, promoting ethical standards among journalists and in the media. A Complaints Commission is established by the Media Council to investigate complaints brought to the Council¶s attention. This Act provides for the legal framework for self-regulation self-regulation of the media. There are bodies which regulate the media which include the Ministry of Information and ICT, Communications Commission of Kenya, Media Council of Kenya and the Kenya Film 17
Commission.
Established in February 1999 by the Kenya Communications Act 1998, the
Communications Commission of Kenya is charged with the responsibility of licensing and regulating telecommunications, radio communication and po stal services in Kenya.18 Under section 46 (1) H of the Communications (Amendment) Act 2008 the commission is empowered to set standards for the manner, time and type of programmes to be broadcast by licensees under the Act. Subsection 2 of this Act empowers the commi co mmission ssion to: a) Prescribe a programming code b) Review the programming code at least once every 2 years c) Prescribe a watershed period programming when large numbers of children are likely to be watching programmes, and d) Ensure compliance with the programming pro gramming code prescribed under this section There have been several severa l criticisms leveled against the provisions of the Kenya Co mmunications (Broadcasting) Regulations 2009. For instance, giving the Commission Commission discreti d iscretion on to determine other requirements before grant of licence has been held to be ³ambiguous´ and ³likely to be 19
abused´.
Furthermore, the demonstration of an applicant¶s capability to o ffer a minimum of ten
channels to each subscriber has been faulted and instead a proposition made for reliance on 20
business judgment depending on the t he availability of channels from the multiplexer.
17
Supra note 8. http://www.cck.go.ke/about_cck/ (retrieved 11 October 2010). 19 http://www.cck.go.ke/links/cons http://www.cck. go.ke/links/consultations/published_ ultations/published_responses/draft_regu responses/draft_regulations/kdn/Broadc lations/kdn/Broadcasting_Regulat asting_Regulation ion s2009.pdf (( retrieved 5th April 2010). s2009.pdf 20 Ibid. 18
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A broadcast licence refers to ³a specific t ype of spectrum licence that grants the licensee the privilege to use a portion of the radio frequency spectrum in a given geographical area for 21
broadcasting purposes´.
It is usually conducted by a governmental agency or a broadcasting
authority. In Kenya, the Communications Co mmunications Commission Commission of Kenya has the power to grant or o r refuse 22
licenses following prescribed criteria.
These include viable business plan, evidence of relevant
experience and expertise to carry out broadcasting services, evidence of technical capa bility bility in terms of personnel and equipment, evidence of the capability to offer o ffer broadcasting services for at least eight continuous hours per da y and such other information or requirement as the 23
commission may from time to time prescribe.
These two provisions provisions provided for under the Communications (Amendment) Act Act 2008 and the Kenya Communications (Broadcasting) Regulations 2009 give wide latitude latitude of undefined power to the commission in prescribing programming code apart from raising pertinent issues on the propriety of some o f its provisions. Lastly, the Code of Conduct for Journalists and the Mass Media was finalized on April 2001 to provide guidelines for regulating the conduct of every person working for the mass media. Noble as this might be, it remains a guideline as errant journalists can get away with breach of the same code. Has this guideline been effective if self-regulation is to form a tenable argument for Kenyan press? 1.2 RESEARCH QUESTIONS
This research will be guided by the following following research quest ions or objectives: 1. To investigate the Communication (Amendment) Act 2008 especially section 46 H and the Kenya Communications (Broadcasting) Regulations 2009 and assess their applicability or shortfall in Kenyan media.
2. To critically examine the Media Council and its relevance in ensuring responsible journalism.
21
http://en.wikipedia.org/wiki/Broadcast_license http://en.wikipedia.org/wiki/Broadca st_license (accessed 5th April 2010). Section 3, The Kenya Communications (Broadcasting) Regulations 2009. 23 Section 3(1) (a)- (e), The Kenya Communications (Broadcasting) Regulations 2009. 22
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3. To suggest areas for reform in regulation of Kenyan media in light of Kenyan media experience.
1.3 HYPOTHESIS
For purposes of this research there will be so me assumptions to be made, namely; That: 1. The state cannot be trusted in regulating the media in light of its track records: Although the state is the custodian of the public good and therefore better placed to regulate the media, such sweeping powers have been abused in the past. For example as Peter Oriare writes, the government brought sedition trials of the underground press and later banned independent and critical publications. Between 1988 and 1990 about 20 publications were banned in Kenya. 2. The press has been incapable to self-regulate itself: The Code of Conduct for Journalists and the Mass Media gives guidelines on the do¶s and don¶ts of journalists and the mass media. The Kenya Media Act 2007 establishes the Media Council of Kenya whose functions are geared towards ensuring responsible media. However, criticisms might be leveled on airing of contents which have been prejudicial or making pejorative reference to ethnicity, clan, religion, political affiliation, sex or sexual orientation in FM radio stations which are partly attributable to the 2007/2008 post-poll violence; publishing or broadcasting of things which are obscene, vulgar or offensive to public good taste; conflict of interest occasioned by accepting gifts, bribes, favours, free travel thus compromising objectivity in journalism.
1.4 SIGNIFICANCE OF THE STUDY
This study will be important for several reasons:
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1. It will seek to examine the Communication (Amendment ) Act 2008, its strengths and weaknesses. 2. It will seek to understand the self-regulation and state-regulation divides and chart the way forward for Kenya¶s electronic media. 3. To search for a philosophy philosophy to guide Kenya¶s electronic media.
1.5 LITERATURE REVIEW
Media regulation has been a subject of much debate. Christopher Mulei et al (2003) among other things, trace the origins and philosophy behind western notions of free speech, justifications of free speech, censorship, colonial legacy of repressive laws, the legal environment for freedom of press in Kenya, the international perspectives on media law and practice. Pertinent to our area of study, the book explores both the print and electronic media and identifies the limitations of section 3691) of the Communications Act especially as regards to licences granted by the Communications Commission of Kenya to establish a station. However, this legislation has been succeeded by the Communications (Amendment) Act 2008 and the Kenya Communications ( Broadcasting) Regulations 2009 which introduce new legal questions on media on application for a broadcasting service licence, general requirements for broadcasting services, ownership and control, general requirements for contents, programme code e.t.c. According to John Zelezny the electronic mass media including radio, broadcast TV, Cable TV, and direct satellite are explored in the context of the Communications Act of 1934, the basic legislation that governs broadcasting in the United States. The composition and roles of the Federal Communications Commission, the regulator of radio and television broadcasting and interstate and international communications by wire, satellite and cable, is delved into. Giving the justifications for regulation of the electronic media, basic qualifications adhered by the Federal Communications Commission before grant of broadcast licensees are listed. However, in as much as all these shed light on the issue of broadcast licenses, such information is given under the background of the philosophy of the American broadcast experience and laws. In addition, in as far as the role of the Communications Commission of Kenya is given in setting broadcasting 7
standards and the subsequent question raised of its independence, Zelezny¶s book is only restricted to the United States. In this study the issue of licensing will be examined in light of the Communications Act and the Kenya Communications (Broadcasting) Regulations 2009, among other Kenyan statutes. Thomas Gibbons (1998) analyses the concept of media regulation arguing that a study of regulation will be concerned with examining the various normative sources that are available to constitute or constrain action and to note where effective control of the practice appears to be located. A general out line line of o f what should constitute a regulatory agency is given w ith the guiding frameworks of independence from government and direct political influence and greater public participation. Thomas postulates that ³in order to safeguard free speech in the context of broadcasting, some regulation is actually necessary to ensure that the interests both of those who communicate through the medium and their audiences are secured´. Granted, broadcasting needs some regulation, however, the book just mentions in passing regulation of the electronic media which is not exhaustive for the t he Kenyan broadcast media. According to Patrick Ross, the 109th U.S. Congress tried to reduce free expression through the regulation of media content and distribution which was also extended to broadcast indecency regulations to cable and satellite platforms, restrictions on children¶s programming et.c. Ross proposes regulations to be across the board and the need for it to allow capital flow in innovation in media delivery methods and pro-innovation and pro-consumer rules for policymakers. An examination is made of Europe and Australia and their traditional broadcasting and online video. Nevertheless, this study majorly concentrated on the internet which is beyond the scope of this research. Okoth-Owiro describes and analyses the law affecting mass media in Kenya. He argues that state interest in the control of the press has been achieved through a) determining how the press is to perform its role, and b) by owning the press. He indicates that there are several legal and administrative instruments for controlling the press and suggests the establishment of a representative institution for advocating for the issues of the press and the recognition of the right of the press to be heard before a tribunal and to appeal for broach of press freedom. OkothOwiro advances an interesting proposition of the state legitimately controlling the activities of the press through state-ownership of radio and t elevision networks and ownership of newspapers. 8
However, as he points out ³the ideals of democracy, constitutionalism and a free press cannot be left to state discretion´. Therefore, he chooses law to be the determinant of method of control of the press. In conclusion, Okoth-Owiro admits that more discussion needs to be held on whether the state is to control the press, whether the law is to be the ³natural´ regulatory mechanism and underscores the need for further debate to be held on o n institutional institutional and policy po licy adjustments. Peter Oriare Mbeke and Tom Mshindi (2008) assess the media sector and provide a summary of the key issues and constraints that affect the media in Kenya. They looked into the issues of categories of Kenyan media systems, investigative journalism, working conditions of journalists, the status of journalism training in Kenya, among other things. According to them, the electronic media has developed very sophisticated platforms for enhancing citizen participation in media since both radio and TV stations have live interviews during news bulletins, live discussion shows, live guest forums, live breakfast shows and debates, phone-ins and sms during live talk shows. Because of this, therefore, the need for the regulation of broadcast media arises. Given that the objective of this study was to provide an understanding to various players in the media sector and of the issues constraining media, the issues of licensing and press freedom were not given an in-depth analysis. Nevertheless, the study provided an insight of the media environment in Kenya for a holistic appreciation of its role and limitations. According to Peter Oriare Mbeke, the mass media and communication sector in Kenya remains vulnerable to system-wide pressures. Tracing media law from colonial era (1895-1962) through post-independence Kenyatta era (1962-1978), Moi era (1978-2002) and Kibaki era (2002-2008), Peter Oriare notes that the causes of the recent post-election violence and the resulting ban on live broadcasting were due to ³weak, irresolute and inadequate legal, regulatory and policy framework inherited from the colonial era´. Arguing that the legal, regulatory and policy environment is still hostile to media, Oriare believes that such could be reversed if a better constitution is enacted, repressive laws repealed and new policies adopted. Lastly, he proposes 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. It must, however, be noted that the Kenya Communications (Broadcasting) Regulations 2009 address these issues and present issues for d ebate.
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Edwin Baker (1989) critiques the assumptions underlying the classic marketplace of ideas theory and proposes the liberty theory and considers the relationship between the two theories, the process of change and the political speech theory. However, the book majorly deals with freedom of speech and assembly. It proposes and examines special rights for the press which it calls the theory of the press. This book provides the philosophical foundations for the various theories regarding the press and its various philosophical underp innings. Geoffrey Stone, Louis Seedman, Class Sunstein, Mark Tushnet and Pamela Karlan (2003) explore the history and philosophy of free expression, expression that induces unlawful conduct, the issue of licensing as prior restraint, injunction as prior restraint, false statements of fact, commercial speech, obscenity, hate speech and pornography, speech on public property and the freedom of press. The authors note that throughout English history the crown and parliament adopted three forms of restraint on the media through licensing of the press, the doctrine of constructive treason, and the law of seditious libel. The book proposes restriction on licensing based on economic grounds and the ability of the market to support it. Therefore, the fairness doctrine or its equivalent will be able to cater for those who have been denied de nied licences. According to Moggi and Tessier (2001), in a 1993 a Task Force on Free Press Laws was appointed to address the issues of information access and dissemination, ethical and professional standards for journalists and their enforcement, self-regulation of the media by defining a media council or a similar body, its composition, functions, duties and procedures and finally media ownership, licensing and development. This was a conscious effort by the government to ensure a responsible media. The report also points out that in comparison with print media, broadcast media in Kenya are tightly t ightly under governmental control. In Reconciling Red Lion and Tornillo, Tornillo, Abbot B. Lispky, Jr. (1976) under part I discusses the leading cases on the constitutionality of media regulation. These cases generally involve disputes concerning the allocation of editorial power, the power of the publisher or broadcaster to determine the contents of the message which he conveys. Part II argues that the existing constitutional rationale for broadcast regulation is based on inadequate distinctions between the print and electronic media, and examines the sources and consequences of editorial power in each medium. Part III proposes a test for the constitutionality of media regulation which would shift the focus of the court¶s approach from a concern with the allocation of editorial power to 10
the equally important issue of how editorial power arises. The test is then applied to current and proposed regulatory schemes for several media institutions. Angela J. Campbell explores self-regulation, arguments in favour of self-regulation, arguments against and gives examples of self-regulation by the media e.g. the Children Advertising Review Unit, advertising of hard liquor, the press councils, the National Association of Broadcasters (NAB) Radio Code. In a comparative legal survey on media legislation in Africa, Guy Berger examines statutes with provisions on the media from select African countries. He indicates that from an international perspective, bodies with regulatory or administrative powers should be independent and free from political interference. Further, he illustrates the joint statement by the relevant rapporteurs of the UN, the Organisation for Security and Co-operation in Europe (OSCE) and the Organisation of American States in 2003 which condemns limits on free expression through ³regulatory mechanisms which lack independence or otherwise pose a threat to freedom of expression´. The statement also stresses the importance for independent regulatory bodies of ³an appointment process for members which is transparent, allows for public input and is not controlled by any particular political party´. Itumeleng Pascalina Shale provides the normative and legal framework for regulation of media, the normative theories of media regulation for example authoritarianism, libertarianism, social responsibility, soviet communist theory, development communication theory, democractic participation theory e.tc, the international legal framework for protection of freedom of expression, the freedom of expression, the freedom of expression and regulation of media, the freedom of expression and regulation of media in Uganda especially in regard to the media council, the National Institute of Journalists and comparative analysis of media regulations. However, the dissertation restricted itself to the Press and Journalists Act 1995 o f Uganda. Bittner John (1991) traces the history of broadcast media regulation in the United States. The Radio Act of 2007, a precursor to the Communications Act of 1934, is examined in terms of the role of the Federal Radio Commission (FRC), its composition, licensing of stations and control over frequency, power and time of operation of radio stations. The Communications Act of 1934, the Author argues, ³removed broadcasting from the supervision of the U.S. Department of Commerce and gave it separate status under an independent agency of government´. Thus, there 11
was a need for comprehensive regulatory agency since the Federal Radio Commission (FRC) had limited scope culminating in the evolution of the commission into the Federal Communications Commission (FCC). The book lists the 13 areas of responsibility of the Federal Communications Commission and outlines its composition. In addition, under the five commissioners that it lists there are Federal Communications Commission (FCC) bureaus which are the private radio, the field operations bureau, the mass media bureau, and the common courier bureau. Bittner John identifies the bureaus directly linked to broadcasting which are the mass media and field operations bureaus. As can be surmised, nonetheless, the framework of what Bittner expounds on in this book impinge on the American broadcast media systems and institutions and whilst it sheds light on the philosophical underpinnings and policy implications on the Kenyan broadcast media, it is no conditio sine qua non for Kenya¶s circumstances and peculiarities. Therefore, a study that appreciates such circumstances and history of Kenya and its drawbacks could best address the media sector in Kenya. John Martin (1993) explores the goals go als and roles of media systems, the role of mass media in the western world and in the Third World. Wor ld. The root of freedom of expression and freedom of the press in Ancient Greece right from Plato¶s Apology for So crates to Aristotle¶s Rhetoric to Alexander¶s persuasive powers are delved into. The book also examines censorship in England E ngland under Tudor and France, Germany (where some states such as Bavaria, Saxony and Prussia offered licenses to postmasters for the printing of newspapers. In addition, t he book attempts a western definition of free press which includes principles such as t he prohibition of government interference with the press in the form of o f censorship and other restraints and the principle that restrictions on press freedom must be applied or be subjected to review by the courts. co urts. It then throws a cursory glance at situations of free press freedom in Ethiopia, Afghanistan and Ango la which are countries with a communist co mmunist or socialist socialist orientation. o rientation. However, though the book is essentially a comparative analysis of mass media systems, it has not narrowed itself to broadcast media and how it is regulated.
1.6 ORGANISATION OF THE STUDY
This study is subdivided into five chapters each dealing with various aspects in the area under examination. 12
Chapter one
Background: This will introduce the problem statement which is the issue of
licensing
in
broadcast
media
and
the
independence
of
the
Communications Commission of Kenya. An overview of the Kenya Communications (Broadcasting) Regulations 2009 will be made. Available literature on media regulation will then be looked at.
Chapter two
The normative, legal and theoretical framework of freedom of expression: An overview of the various theories of media regulation. Then an examination will be made on national, regional and international legal instruments protecting freedom of expression.
Chapter three
Regulation of the broadcast media: The rationale for regulation, examination of licensing per se, critique of the Kenya Communications (Broadcasting) Regulations 2009, examination of the Communications Commission of Kenya, the role of the Media Council and the effectiveness of the Code of o f Conduct for Journalists.
Chapter four
Comparative analysis of regulation of broadcast media: The legal provisions regulating the broadcast media in other jurisdictions like the United States and South Africa, analysis of the regulators in those jurisdictions and their independence.
Chapter five
Summary, conclusions and recommendations: Although it will be conceived that there ought to be regulation in the broadcast media, recommendations will be made on the level and extent of such. The best broadcast regulation philosophy will be recommended
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CHAPTER TWO THE NORMATIVE,
LEGAL
AND THEORETICA L FRAMEWORK OF FREEDOM OF EXPRESSION
2.0 INTRODUCTION Though all the winds of doctrine were let loose to play upon the Earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever know Truth put to the worse, in a free and open encounter?24
Freedom of expression is a term that has elicited a lot of debate. This owes to the fundamental role that it plays in society in shaping public opinions, entertaining and educating its consumers. Professor Thomas Emerson (cited in Baker, 1989) identifies four values that the ³first amendment´ freedom has and lists them as i) individual self-fulfillment, ii) advancement of knowledge and discovery of truth, iii) participation in decision making by all members of the society (which is ³particularly significant for political decisions´ but ³embraces the right to participate in the building of the whole culture´, and iv) achievement of a ³more adaptable and 25
hence stable community´.
Webster¶s New World Law Dictionary has defined it as
³collectively, the rights, guaranteed by the First Amendment to the United States Constitution, to engage in freedom of speech, freedom of association, freedom of the press, and freedom of religion´. Section 79 of the Constitution of Kenya defines freedom of expression as ³freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence´. It should be noted here that such a definition is in tandem with the provisions of the international legal instruments in regard to protection of freedom of expression. In E dmonton dmonton Journal v Alberta (Attorney General)26 , Dickson C.J. and Lamer and Cory JJ underscored that ³freedom of expression is of fundamental importance to a democratic 24
J. Milton., Areopagitica, Milton., Areopagitica, A speech for the Liberty of Unlicensed Printing ed. Noel Douglas (London: Humphries & Co. Ltd., 1927). 25 Baker, C.E., (1989) Human Liberty and Freedom of Speech. Speech . New York: Oxford University Press p. 47. 26 [1989] 2 S.C.R. 1326 http://www.can http://www.canlii.org/en/ca/s lii.org/en/ca/scc/doc/198 cc/doc/1989/1989ca 9/1989canlii20/1989canlii20 nlii20/1989canlii20.html .html (retrieved 15 February 2010).
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society and should only be restricted restricted in the clearest of circumstances. circumstances. It is also essential essential to a democracy and crucial to the rule of law´. 27
Similarly, in the case of Cheserem v Immediate Media Services , the court underscored the sanctity of freedom of expression enshrined in Section 79 of the Constitution which is enjoyed by every news media, the press, newspapers and journalists. Thus the court held that an injunction could not be allowed to block publication of information thus impeding freedom of expression unless there was a substantial risk of grave injustice and the private interest in preventing the publication outweighed the public interest. The classic marketplace of ideas theory perhaps sheds more light on the subject of freedom of speech. It holds the view that ³wise counsels will prevail over false ones in the clash of free public debate and that the best test of truth is the power of the thought to get itself accepted in the 28
competition of the market´. Holmes, J., dissenting, captures this t his theory succinctly: When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only 29
ground upon which their wishes safely can be carried out
Consequently, under this theory, truth must be ³objective´ and able to outdo falsity in debate and that people are basically rational and able to discern truth from falsity. However, this theory has 30
been faulted by several scholars and instead an alternative theory, liberty theory, proposed instead. John Stuart Mill, a strong proponent of the liberty theory, advocated for freedom of expression. Writes Mill, ³if all mankind minus one were of one opinion, mankind would be no more justified in 31
silencing that one person than he, if he had the power, would be in silencing mankind´. He argues that silencing of an individual of an expression of his opinion robs the society and posterity of its 27
(2000) Nairobi HCCC No. 398. Baker, C.E. (1989) supra p. 131. 29 Abrams v United States (1919) 250 U.S. 616, 630. 30 See Baker, C.E. (1989); The book critiques the assumptions underlying the classic marketplace marketplace of idea theory. For instance, he points out that the theory allows the conclusion that reasonable time, place, and manner restrictions do not abridge the right of peaceable assembly or the freedom of speech. 31 http://books.google.co.ke/books?id=R http://books.google. co.ke/books?id=RbkAAAAAYAAJ&prints bkAAAAAYAAJ&printsec=frontcover&dq=on ec=frontcover&dq=on+liberty+john+stua +liberty+john+stuart+mill&sou rt+mill&sou rce=bl&ots=Vt7nGHg37r&sig=yiaeuY rce=bl&ots=Vt7nGH g37r&sig=yiaeuY3YQ-k8MjhqoW-vb 3YQ-k8MjhqoW-vbZyyN00&hl=en& ZyyN00&hl=en&ei=dZJ7S8ujHon ei=dZJ7S8ujHon-0gT5nq3SBQ&sa=X&oi=book_result&ct= 0gT5nq3SBQ&sa=X &oi=book_result&ct=result&resnum=1 result&resnum=1&ved=0CAcQ6A &ved=0CAcQ6AEwAA#v=onepage&q= EwAA#v=onepage&q=&f=false &f=false.. 28
15
worth whether it be right or wrong; if right, of the opportunity of exchanging error for truth, if 32
wrong, of the clearer perception and livelier perception of truth when it is in collision with error. 33
Mill further postulates that an opinion which it is attempted to suppress may possibly be true. tru e.
2.1 INTERNATIONA L LEGAL INSTRUMENTS
There are various international legal instruments that protect freedom of expression. From the outset, it should be borne in mind that enforceability of human rights standards in domestic courts needs their incorporation into domestic law.34 Nonetheless, Kenya is obliged by international law to abide by the provisions of human rights conventions as a part of customary international law. 35 The International Covenant on Civil and Political Rights, to which Kenya has ratified, provides that everyone shall have the right to hold opinions without interference and this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other 36
media of his choice.
However, the instrument limits the exercise of this right as regards respect
of the rights or reputations of others and in the protection of national security or of public order, 37
public health or morals.
Similarly, propaganda for war and advocacy of national, racial or
religious hatred that constitutes incitement to discrimination, hostility or violence are prohibited 38
by law.
The same protection of the right to freedom of opinion and expression is safeguarded under the 39
Universal Declaration of Human Rights , the Banjul Charter (adopted by the Heads of State and 40
Government Meeting in Nairobi on 27 June 1981)
41
and the European Convention.
It is
instructive to note Article 10 (2) which prov ides:
32
Ibid p. 33. Ibid p.34. 34 Makali, D. (Ed.) (2003) supra p 347 35 Ibid. 36 Article 19, International Covenant on Civil and Political Rights. 37 Ibid Check Art 19 (3) (a) (b). 38 Article 20 International Covenant on Civil and Political Rights. 39 Article 19, Universal Declaration of Human Rights. 40 Article 9, African (Banjul) Charter on Human and Peoples Rights. Article 27 however states that the rights are to be exercised with due regard to the rights of others, collective security, morality and common interest. 33
16
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary
This limitation clause is more comprehensive and condensed than the derogations to be found in other instruments. The American Convention on Human Rights, also referred to as ³Pact of San Jose, Costa Rica´(hereinafter called American Convention), apart from providing for the right to 42
freedom of thought and expression subject to prior censorship´
43
has provided that the exercise of this right ³shall not be
save for respect for the rights or reputations of others and the 44
protection of national security, public order or public health or morals. Two other interesting 45
provisions
are worth mention because they take cognizance of the need for freedom of speech
in the media and curbing harm likely to be caused by them. Vide Article 13(3) of the American Convention, the right of freedom of expression may not be restricted by indirect methods or means such as the abuse of government or private controls over newsprint, radio broadcasting frequencies or equipment used in the dissemination of information or by any o ther means tending to impede the communication and circulation of ideas and opinions. However, this doesn¶t absolve public entertainments from being subject by law to prior censorship for the sole purpose 46
of regulating access to them for the moral protection of childhood and adolescence. Further, propaganda for war and any advocacy of national, racial, or religious hatred are considered as 47
offenses punishable by law under the Convention.
Even with these provisions in place,
³historically a few countries, among them United States and Sweden, can claim to be liberal compared to the mostly repressive rest of the world with regard to media freedom´.48 One running thread can be discerned from all these conventions: Protection of freedom of expression and the attendant duties and responsibilities so that the right cannot be abused. It 41
Article 10, European Convention (Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11). 42 Article 13 (1) American Convention on Human Rights. 43 Article 13 (2). 44 Ibid. 45 Article 13(3) and (4). 46 Article 13 (4). 47 Article 13(5). 48 Makali, D. (Ed.) (2003) supra P. 350.
17
stems from the philosophical underpinning of enjoyment of human rights where such is to be done in such a manner as not to injure, inconvenience or disregard the rights of others. Granted, enjoyment of such a fundamental right without limitation clauses could have been an avenue for abuse and untold suffering to the consumers of the media. Nevertheless, questions might be raised over the nature, level and extent of the ³protection of national security and public order´ and ³such formalities, conditions, restrictions or penalties as are prescribed by law´ provided under Article 20 of the International Covenant on Civil and Political Rights and Article 10(2) of the European Convention respectively. Such provisions as to national security, territorial integrity or public safety, prevention of disorder or crime and protection of health or morals49, owing to their amorphous nature, have been the lacunae through which dictatorial regimes have wielded untrammelled powers over media playing the watchdog role. Perhaps, it is because of this reality that the American Convention provides a safeguard.50 Therefore, the government is barred from undue restrictions and controls over newsprint, radio broadcasting frequencies or equipment which impede the communication and circulation of ideas and opinions. This is because ³every state has a political interest in controlling the activities of the press within its 51
jurisdiction´
though other authors have argued that the state can ³legitimately control´ the 52
activities of the press. Consequently, to curb government¶s zeal to gag the press, such a clause is a boon to protection protection of media freedom.
2.2 NORMATIVE THEORIES
Normative theories of the press have been defined by McQuail as ³ideas of how the media ought 53
to or can be expected to operate under a prevailing set of conditions and values´,
in fact,
³normative theories of journalism concern ideal functions of the press, what the press should 54
do´. In essence these theories seek to offer general guiding principles and circumstances upon which media ought to operate in society. They are a product of the circumstances that have 49
Article 10 (2) European Convention. Article 13(3) American Convention on Human Rights. 51 http://www.digital.lib.msu.edu/proje http://www.digital .lib.msu.edu/projects/africanjou cts/africanjournals/pdfs/a rnals/pdfs/africa%/zomedia%2 frica%/zomedia%20review/volno1/j 0review/volno1/jamr00400 amr00400100 100 3.pdf (accessed 3.pdf (accessed 15 January 2010). 52 Ibid. 53 http://peoi.org/Courses/Coursesen/ http://peoi.org/C ourses/Coursesen/mass/mass2.ht mass/mass2.html ml (accessed 10 February 2010). 54 http://steinhardt.nyu.edu/scmsA http://steinhardt .nyu.edu/scmsAdmin/uploads/0 dmin/uploads/000/727/B 00/727/Benson%20Normative%20 enson%20Normative%20Theories%20of%2 Theories%20of%20Journalis 0Journalis rd m%20Comp%20Media%20Class.doc. (accessed on 3 February 2010). 50
18
shaped mankind throughout history and the perceptions that the society then and now hold as to the proper role the media needs to play, who should control them or not and the level and extent of such control. In addition, such theories have been utilized by institutions and the state in shaping media po licies. licies.55 For our present purposes, the Four Theories of the Press will be examined and two additional theories that have come along recently. Siebert, Peterson and Schramm in their book Four Theories of the Press (1956) identify four theories, namely: Authoritarian Theory, Libertarianism or Free Press Theory, Social Responsibility Theory and Soviet Media or Communist Theory. There are other two theories which have come to be accepted and these are the Development Communication Theory and the Democratization or Democratic Participant Media Theory. An individual examination will be conducted on these theories. 2.2.3 Authoritarian Theory 56
This theory, developed in Europe after Gutenberg, postulates that the press ³may remain free to publish without prior censorship, but the state retains the right to punish journalists or close 57
media outlets that overstep explicit or implicit limits on reporting and commentary´. Prevalent th
in 17 Century Europe where the press was owned by the king, emperor, the pope and even 58
private individuals,
the theory stemmed from the freedom of thought movement where
complete dictatorship was advocated for as a guard against inhibitions of the thought process by 59
the printed matter.
The rationale which was given for such a stance was that the state was the
custodian of the public good and that separate individuals could not exercise freedom of expression to the detriment of the state. As written by Rivers and Schramm (1969): Modern communication was born in 1450 into an authoritarian society. The essential characteristic of an authoritarian society is that the state ranks higher than the individual in the scale of social values. Only
55
Ibid. Defining Global Media Systems http://www.aca http://www.academic.ceng demic.cengage.com/resour age.com/resource_uploads/downloads ce_uploads/downloads/053460 /0534608132 8132 th 12978.pdf (retrieved 10 February 2010). 57 Supra note 54. 58 Flor, A.G. Development Communication: The Fifth Theory of the Press http://upou.academia.edu/AlexanderFlor/Books ou.academia.e du/AlexanderFlor/Books/94287/C /94287/Communication-and-C ommunication-and-Culture--Confli ulture--Conflict-and-Cohesion ct-and-Cohesion (accessed 2 February 2010). 59 Supra note 53. 56
19
through subordinating himself to the state can the individual achieve his goals and develop his attributes as a civilised man. As an individual, he can do little; as a member of an organised society, his potential is enormously increased. This means not only that the state ranks higher than the individual but also that the 60
state has a caretaker caretaker function and the individual a dependent status. th
The Authoritarian Model in the 17 Century Europe was conducted in two forms: licensing and review of material after publication.
61
Therefore, licences were revoked if an unfavourable
content was published and fines were levied or even death penalty meted out for publication of a 62
material that criticised the government.
Conversely, the press was viewed as possessing the role of supporting the policies and actions of the state and promote national unity.63 It must be noted that against such a background, such a theory has been embraced by both dictatorial and democratic governments as a ground for controlling the media. Libya, Syria, S yria, Iran, Singapore, Indonesia and Myanmar fit fit into this model.
2.2.4 Libertarianism or Free Press Theory
Libertarianism steeps from the concept that people should be given available information so as to enable them to make good choices.
64
th
Dating back to 17 Century England, it is the exact anti-
thesis of the Authoritarian Theory where the press is not an instrument of the government but a watchdog to curb the excesses of the government. It has to ³monitor the full range of state 65
activity and fearlessly expose abuses of official authority´.
In this theory man is seen as a
rational being capable of distinguishing between truth and falsehood, evil and bad unlike in the Authoritarian model where he is seen as an a n instrument of the state. The right to search for truth is regarded as inalienable natural rights of man (Siebert et al., 1956). Further, there¶s total freedom of the press devoid of government control and manipulation, which
60
Flor, A.G. p. 2-3. Supra note 56. 62 Ibid. 63 Ward, S.J., History of Journalism Ethics http://www.jou http://www.journalismethics.ca rnalismethics.ca/research-e /research-ethics/history.htm thics/history.htm (retrieved 2nd February 2010). 64 Ibid. 65 Curran,J. (2000) Rethinking Media and Democracy in J. Curran and M. Guvevitch (Eds.), Mass Media and Society , (p. 120-154). New York, NY: Oxford University Press Inc. 61
20
lends credence to the ³free marketplace´ of ideas where conflicting arguments and insights are encouraged to enable people discover truth and make well-founded decisions. This theory presupposes that the media objectively discharges its duty of conveying truth without undue influence from advertisers and powerful media corporate conglomerates and that it will give chance for opposing viewpoints to be heard. st
However, this theory has not been without fault. For instance, the media systems in the early 21
Century have abandoned their traditional public watchdog role of ³disclosing official wrongdoing´ and ³public affairs´ by apportioning them little time vis-à-vis the disproportionate huge 66
regard to entertainment. Similarly, with the advent of conglomeration of news media corporate empires have been created thereby puzzling the media in its quest for independence and objectivity. In fact, ³what this seemingly persuasive argument fails to take into account is the way in which the market is now a source of corruption that can subdue critical oversight of government´.67
2.2.5 Social Responsibility Theory 68
The proponents of the Social Responsibility Theory have argued that the Free Press Theory has been exercised without due regard to caution and restraint and have stated that ³pure libertarianism is antiquated, outdated and obsolete´.69 This theory traces its roots to the Hutchins Commission on the Freedom of Press 1949 of the United States which faulted the libertarian theory and called for accountability and obligation of the media to society in a delicate combination of self-regulation and state regulation of the media.
70
It came up with several
precepts which were to be adhered by the media which include: i) the obligations of the media in the preservation of freedom in a democratic society ii) media should be self-regulated iii) adherence by the media to high standards of professionalism iv) the need for the media to reflect
66
Ibid p. 122. Ibid p. 123. 68 Wilbur Schramx, Siebert and Theodore Paterson. 69 Supra note 53. 70 Ibid. 67
21
71
the diversity of different cultures v) the public has a right to expect professional performance.
The report identifies a number of things that the media ought to perform for their effectiveness. The media is supposed to be accurate especially when the reporter is collecting facts which ought to be first hand and not hearsay and a distinction drawn between facts and opinions of fact, offer forum for exchange of comment and criticism as carriers of public discussion,
73
72
project a
representative picture of the constituent groups in the society and not encouraging stereotypes,
74
present and clarify goals and values of the society through realistic reporting of events and forces 75
that impede achievement of those goals and educating the public.
As a modification of the Libertarian Theory, the Social Responsibility Theory can be summed up as thus: ...the power and near monopoly position of the media impose on them an obligation to be socially responsible, to see that all sides are fairly presented and that the public has enough information to decide; and that if the media do not take on themselves such responsibility, it may be necessary for some other agency of the public to enforce it
76
2.2.6 Soviet media/Communist Theory
The ideologies of Karl Marx and Friedrich Engels inform this theory which posits that media ³should not be privately owned, should serve the interests of the working classes, and most importantly, should provide a complete, objective view of the world following Marxist-Leninist 77
principles, as defined by the communist-party controlled state´. Therefore, mass media was expected to educate the working classes and encourage feedback.
71
78
Prevalent in North Korea,
Pittner, S., What is the Social Responsibility Theory? (May 18, 2009) http://pressfreedom.suite101.com/articl freedom.suite101. com/article.cfm/what_is_t e.cfm/what_is_the_social_respons he_social_responsibility_theory ibility_theory (retrieved 10 February 2010). 72 A Free and Responsible Press (1947) The Commission on the Freedom of the Press The University of Chicago Press p. 21-23. 73 Ibid p. 23-25. 74 Ibid p.26-27. 75 Ibid p. 27-28. 76 Ibid p. 3-4. 77 Flor, A.G. 78 Supra note 53.
22
Cuba, Vietnam, and to a certain extent in China, this theory bears close resemblance to the Authoritarian Theory. In Siebert et al. (as c ited in Flor ) this theory is described as: ...a tool of the ruling power just as clearly as did the older authoritarianism. Unlike the older pattern, it is state rather than privately owned. The profit motive has been removed, and a concept of positive has been substituted for a concept of negative liberty...the American press is not truly free, the Soviets say, because 79
it is business controlled and therefore therefore not n ot free to speak the Marxists ³truth´. (ibid, p.5)
With the collapse of the Soviet Union in 1991 there have been different versions of this theory which have been practiced pract iced in different countries.
2.2.7 Development Communication Theory
Having examined the four classical theories as propounded by Siebert et al., it is incumbent to expound two other theories which were applicable to the non-aligned countries of Asia, Africa and Latin America which countries found the Four Theories of the Press inadequate. These theories, added by McQuail, are the Development Communication Theory and the Democratic or Democratic Participant Theory. The Development Communication Theory takes cognisance of the fact that there can be no 80
development without communication. Therefore, the media is expected to undertake the role of carrying out positive developmental programmes and accepting restrictions and instructions from 81
the state in responding to the political, economic, social and cultural needs of the society.
This
theory was backed by the UNESCO. As written by Schramm and McQuail (as cited in Benson), ³development theory is authoritarianism for a good cause supporting the economic development and nation-building efforts of impoverished societies´. The Chinese, by way of example, follow a market socialist approach to the media which combines limited market freedoms with 82
continuing state co ntrol. ntrol.
2.2.8 Democratization or Democratic Participant Theory
79
Ibid. Ibid. 81 Ibid. 82 Supra note 54. 80
23
83
This theory encapsulates the need for the media to promote political involvement of citizens. In fact, ³its theorists emphasize diverse viewpoints and active citizen involvement more than the 84
quality of the discourse. They disagree on the best means to achieve these goals´
The basis of
this theory is its opposition to commercialization of modern media and discouragement of 85
bureaucratic control of media.
As written by Ferree and McQuail (as cited in Benson), ³the
theory emphasizes principles such as proper inclusion, empowerment, and full expression through a range of communicative styles´. It lays emphasis on of horizontal rather than vertical 86
(top-down) communication.
The term 'democratic-participant' express disillusionment with
parliamentary democracy which has seemed to become detached from its grass-roots origins, to impede rather than facilitate involvement in political and social life
87
and emphasizes the right to
relevant information, the right to answer back, the right to use the means of communication for interaction in a small-scale settings of the community.88
83
Ibid. Ibid. 85 supra note 53. 86 Mass Communication http://rezaspac http://rezaspace.blogfa.co e.blogfa.com/post-101 m/post-1014.aspx 4.aspx (accessed 15 February 2010). 87 Ibid. 88 Ibid. 84
24
CHAPTER THREE REGULATION OF THE
BROADCAST
MEDIA
3.0 Introduction 89
Kenya has a population in excess of 39 million people , with around forty ethnic tribes and two languages, English which is an official language and Kiswahili which is a national language. th
Kenya gained her independence in December 12 1963. Broadcasting in Kenya started in 1953 when the first Radio broadcast service was created for Africans before establishment of the Kenya Broadcasting Service (KBS) in 1954.90However, the colonial government strictly controlled and censored radio programs as early as 1927 and the Cable Wire Limited served only Whites and Asians.91 The Kenya Broadcasting Service was succeeded by the Kenya Broadcasting Corporation (KBC) in 1962.92 It was only in 1962 that television was introduced in 93
Kenya and eight years later in 1970 that a new television station was opened in Mombasa.
On
st
1 July 1964, the Kenya Broadcasting Corporation was nationalized into the Voice of Kenya (VOK) and later reverted to Kenya Broadcasting Corporation in 1989 by enactment of the Kenya 94
Broadcasting Corporation Act.
In 1989 and 1990, Kenya Television Network (KTN) and
Stellagraphics Ltd (STV) respectively were granted licences in that order thus setting pace for liberalization of the airwaves. Currently, over 110 television channels and 264 FM frequencies 95
have been assigned countrywide to 23 TV and 62 FM sound broadcasters.
A Task Force on Press Law of 1993 set up by the Attorney General sought to review and make recommendations on Press Law and provide a comprehensive legal framework for the exercise of freedom of the press and electronic media. In 1995, the Kenya Mass Media Commission Bill 96
was introduced which sought to regulate the operations of the mass media.
89
World FactBook https://www.c https://www.cia.gov/library/publ ia.gov/library/publications/t ications/the-world-factbook/geos he-world-factbook/geos/ke.html /ke.html (retrieved 22nd February 2010)The actual figure is 39,002,772. 90 Report of the Task Force on Migration of Terrestrial Television from Analogue to Digital Broadcasting in Kenya (July 2007) http://www.cck http://www.cck.go.ke/UserFiles/F .go.ke/UserFiles/File/migration_ ile/migration_digital_tv.pdf digital_tv.pdf (accessed (accessed on 22nd February 2010) 91 Supra note 8 (accessed 22nd February 2010). 92 Ibid. 93 Ibid. 94 Ibid. 95 Ibid. 96 Ibid.
25
However, there was a general lack of linkage between task forces and bills on media law and 97
telecommunication law which was haphazard thereby subjecting telecommunication services to 98
political interference and excessive controls. 3.1 Media regulation
Damian Tambini defines media regulation as the setting of rules for the media and oversights of compliance with those rules, by media organizations or by users.
99
Wikipedia defines it as
³controlling human or societal behavior by rules or restrictions´. However, Larry Irving observes: µMost basically, we need to define what we mean, as the term ³self-regulation´ itself has a range of definitions. At one end of the spectrum, the term is used quite narrowly to refer only to those instances where the government has formally delegated the power to regulate, as in the delegation of securities industry oversights to the stock exchanges. At the other end of the spectrum, the term is used when the private sector perceives the need to regulate itself for whatever reason- to respond to consumer demand, to carry out its ethical beliefs, to enhance industry reputation, or to level the market playing field- and does so.¶
100
Regulation has three components: legislation, that is, defining appropriate rules; enforcement, such as initiating actions against violators and adjudication, that is, deciding whether a violation has taken place and imposing an appropriate sanction.101 The key media regulators are the Ministry of Information and ICT, Communication Commission of Kenya, Media Council of 102
Kenya, Kenya Film Commission and many others.
Section 46 (1) H of o f the Communications (Amendment) Act 2008 empowers the Co mmunications Commission of Kenya to set standards for the manner, time and type of programmes to be broadcast by licensees under the t he Act. Subsection 2 of this Act empowers the commission commission to: t o: e) Prescribe a programming code f) Review the programming code at least once every 2 years 97
Ibid. Ibid. 99 Tambini, D., Self Regulation of the Media http://www.Blackwellreference.com http://www.Blackwellreference.com(accessed (accessed 15 September 2009). 100 Irving, L. Collection of papers analyzing the prospects of self-regulation for protecting privacy on the internet http://www.law.indiana.edu(accessed http://www.law.indiana.edu (accessed 17 September 2009). 101 Ibid. 102 Supra note 8. 98
26
g) Prescribe a watershed period programming when large numbers of children are likely to be watching programmes, and h) Ensure compliance with the programming pro gramming code prescribed under this section
This legislation has been met with heavy criticism from various quarters regarding the power of 103
the commission in prescribing and reviewing programming content.
Questions on morality
elicit more heat than light and the challenge that the Commission faces is ³how to legislate good taste as a standard upon which a broadcaster can be held criminally liable´ and that in a culturally diverse society like Kenya which does not have a universal value of what is good or abhorrent reliance on the discretion of the editor guided by professional ethics and the existing 104
laws on public nuisance and morality will be adequate.
Therefore, it has been suggested that
the enforcement of the Code of Ethics and Practice and complaints over media content are to be left to the Media Council of Kenya (this raises the question of how effective the Media Council of Kenya is in the self-regulation of the media itself which will be delved into later in this 105
analysis).
Further, national unity and cultural diversity cannot be achieved ³by imposing on
broadcasters legislation to cultivate an abstract ³Kenyan identity´ and a value of what is good or 106
abhorrent as defined by the Information Ministry.´
In the United Kingdom, the Ofcom107 Broadcasting Code of December 2009(incorporating the Cross-Promotion Code) is a code for television and radio, covering standards in programmes, sponsorship, fairness fairness and privacy. For instance, it protects persons under eighteen years, years, protects members of the public from harmful or offensive material in relation to offensive language, violence, sex, sexual violence, discrimination; prohibits the descriptions or demonstrations of 103
For instance, the East Africa Law Society issued a press statement concerning the Kenya Communications. (Amendment) Act 2008. In particular, it noted that section 46 would give the Information and Communications Minister power to control programme content and the Commission will be responsible for ensuring the good taste of broadcasts. The Society also pointed out that it is not within the jurisdiction of Ministers to pass judgment on the quality of news and information and/or proscribe content for the electronic stations; E ALS Wants Retrogressive Clauses of the Kenya Communications (Amendment) 2008 Act Repealed www.eala www .ealawsoci wsociety. ety.org/ org/... .../Pr /Pr ess_% ss_%20 20r r eleas elea se _% _%20 20on_% on_%20 20Communications _% _%20B 20Biill.d ll.doc oc(( accessed 8 November 2009). 104 Wanjiku, R. (2009) Kenya Communications Amendment Act (2009): Progressive or Retrogressive? http://www.apc.org/en/system/fi http://www.apc.o rg/en/system/files/CICEWAKenya2 les/CICEWAKenya200909 0090908_EN.pdf 08_EN.pdf (accessed (accessed 1st March 2010) p. 12. 105 Media Industry Statement on the Kenya Communications (Amendment) Bill 2008 http://kenyapolitical.blogspot.com/ http://kenyapoliti cal.blogspot.com/2008/12 2008/12/media-industry-s /media-industry-statement-on-keny tatement-on-kenya.html a.html (accessed 1st March 2010). 106 Ibid. 107 In full the Office of Communications; it is the independent telecommunications regulator in the United Kingdom.
27
criminal techniques which enable commission of crime and encourages due accuracy and due impartiality impartiality in reporting news. 108
The Standards Code is also provided for by the United Kingdom legislation.
Ofcom is
empowered to ³set, and from time to time to review and revise such standards for the content of programmes to be included in television and radio services as appear to them best calculated to secure the standards objectives´, the standard objectives of which are, among others, that persons under the age of eighteen are protected, material likely to encourage or incite the commission of crime is not included in television and radio services and that the proper degree of responsibility is exercised with respect to the co ntent of programmes which are religious programmes. Perhaps what is more instructive is the provision on the modalities to be adopted by Ofcom in setting or revising standards.
109
They are expected to have regard to the degree of harm or
offence likely to be caused by inclusion of a particular programme content, the likely size and composition of the potential audience for programmes, the likely expectation of the audience as to the nature of programmes content, the likelihood of persons who are unaware of the nature of a programmes content being unintentionally exposed by their own actions to that content, the desirability of securing that the content of services identifies when there is a change affecting the nature of a service and the desirability of maintaining the independence of editorial control over programme content. As can be seen, the United Kingdom statute provides for some guidelines and safeguards to its regulator, the Ofcom, in reviewing and revising the Standards Code unlike in the Kenya Communications (Amendment) Act 2008 which has t his lacuna.
3.2 The Communications Commission of Kenya
The Communications Commission of Kenya was established in February 1999 by the Kenya Communications Act 1998 to ³licence and regulate telecommunications, radio communication
108
Section 319, Audiovisual Media Services Directive (Directive 89/552/EEC as amended by Directive 97/36/EC and by Directive 2007/65/EC). 109 Ibid Section 319(3).
28
110
and postal services in Kenya´.
It serves several functions which include, inter alia: i) licensing
(telecoms and postal/courier) operators ii) regulating tariffs for monopoly areas iii) managing the radio frequency spectrum iv) type-approving communications equipment v) formulating telecommunication numbering schemes and assigning them to network operators. In the United States, the Federal Communications Commission (FCC) is the equivalent of the Communications Commission of Kenya. It is an independent US government agency established by the Communications Act of 1934 and is charged with the role of regulating interstate and international communications by radio, television, wire, satellite and cable.
111
Media Bureaus 112
regulates AM, FM radio, television broadcast stations, cable television television and satelli sat ellite te services.
Various provisions from different legislations granting powers to the Commission as the regulator of telecommunications, radio communication and postal services need examination in light of whether there needs to be checks and balances. Section 46(1) H of the Communications (Amendment) Act 2008 raises several issues relating to the independe nce of the Communications Co mmunications Commission of Kenya in carrying out its mandate. Under section 33 of the Kenya Communications (Broadcasting) Regulations 2009, the Communications Commission of Kenya is empowered to prescribe a programme code that sets the standards for the time and manner of programmes to be be broadcast by licencees. Where any body of broadcasters wish to operate under its own Programme Code it shall submit such a Code to the Commission for approval to which it will regard standards such as taste and decency of programme material; advertising, infomercials, sponsorships; news, public affairs, analysis and commentaries; children programmes, liquor, dangerous drugs and cigarettes, programming likely to incite, promote hatred or vilify any person or community on the basis of ethnicity, race, gender, religion, culture, age, disability and such other matters as the Commission may prescribe from time to time by 113
notice in the gazette.
The Kenya Communications (Radio Communications and Frequency Spectrum) Regulations 2009 provides that in considering applications for frequency assignment, the Commission shall take into consideration spectrum availability for the type of service and proposed location, 110
http://www.cck.go.ke. http://www.cck.go.ke. http://www.fcc.gov.. http://www.fcc.gov 112 Ibid. 113 Section 34(2) , The Kenya Communications (Broadcasting) Regulations 2009. 111
29
114
whether the proposed service can be satisfied by any other means of communication e.t.c.
The
Commission is also given powers to assign the use of a frequency or frequencies to the applicant and shall take into account all technical data of the equipment and associated accessories proposed to be used by the applicant.115 Owing to the gravity of such powers of prescribing and reviewing the programme code116, considering applications for frequency assignment and assigning the use of frequencies to applicants117, the question of the independence of the Commission is imperative. Section 5 B of the Kenya Communications (Amendment) Act of 2009 provides that the Commission shall exercise its functions independent of any person or body. In contrast, section 3 of the Independent Communications Authority of South Africa Act (hereinafter referred to as the ICASA Act) provides: ³(3) The Authority is independent, and subject only to the constitution and the law, and must be impartial and must perform its functions without fear, favour favour or prejudice (4) The Authority must function without any political or commercial interference´ interference´
The Independent Communications Authority of South Africa establishes the Independent Communications Authority of South Africa (ICASA) as a ³sector-specific regulator for broadcasting and telecommunications, the Media Development and Diversity Agency Act which aims to promote media development and diversity in South Africa and establishes the Media 118
Development and Diversity Agency (MDDA)´.
Further, vide section 5 of the ICASA Act the
minister is to appoint seven of the councilors of ICASA with the recommendation of the National Assembly subsequent to a public hearing with all the candidates. Section 3 of the MDDA Act (No. 14 of 2002) encourages ownership and control of, and access to media by historically disadvantaged communities and historically diminished indigenous language and cultural groups.
114
Section 4(1), The Kenya Communications (Radio Communications and Frequency Spectrum) Regulations 2009. Ibid Section 4(2). 116 Section 46 (1) H, Kenya Communications (Amendment) Act 2008; Section 33, Kenya Communications (Broadcasting) Regulations 2009. 117 Supra note 110. 118 Shale, I.P. (2008). Who is watching Who? Regulation of Media and Freedom of Expression in Uganda: A Critical Analysis of the Press and Journalists Act 1995 ( LLM dissertation, University of Pretoria, 2008).. 115
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It is noteworthy to indicate the provisions of the Proposed New Constitution 2010. It comprehensively provides for the freedom of the media which is a major improvement from the sketchy section 79 of the current constitution. For instance, section 33 provides for the right to freedom of expression extending to artistic creativity, academic freedom and freedom of scientific research. In addition, section 34 safeguards the independence of the media from state manipulation and bar from penalizing individuals for any opinion or view of broadcast content. Perhaps the freedom of broadcasting media to establish subject only to licensing procedures guards against miuse of licensing procedures for selfish or political reasons. However, as the researcher writes this the Draft still remains to be passed and these provisions are cited here for academic reasons. Even with the safeguards provided for in the ICASA Act for ICASA¶s independence, clarity needs to be shed on how the regulating institution is expected to be free from political and commercial influence through some standard mechanism as is spelled out in the Communications Act 1934.
3.3 The Media Council
The Media Council of Kenya ³ is an independent national institution established by the Media Act, 2007 as the t he leading institution in the regulation of media and in the conduct and d iscipline of journalists´ whose membership is drawn from media stakeholders including the Media Owners Association, Kenya Union of Journalists, Kenya Correspondents Association, Kenya Editors Guild, Public Relations Society of Kenya, Kenya New s Agency, Private and Public 119
Universities, the Kenya Institute of Mass Communication and the Law Society of Kenya.
Established by section 3 of the Media Act No. 3 of 2007 as a body corporate, the Council comprises thirteen members
119
120
which form three committees namely; the Accreditation and
nd
http://www.mediacouncil.or.ke/ (accessed 22 February 2010). http://www.mediacouncil.or.ke/(accessed 120 Section 6(1) Media Act No. 3 of 2007. The thirteen members will include two persons nominated by the Kenya Union of Journalists, Journalists, three persons nominated by the Media Owners Association, one person nominated by the Law Society of Kenya, one person nominated by the Editors Guild of Kenya, two persons nominated by schools of journalism or recognized universities, one representing public universities and the other re presenting private universities, one person nominated by the Kenya Correspondents Correspondents Association, one person nominated by the Public
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Training Committee, the Ethics and Public Informat ion Committee, Committee, the Finance and Administration Committee.
121
It is expected that the Council Co uncil shall operate without any political or ot her bias and shall be independent and separate from the government, any political party or any nominating 122
authority.
There are five Complaints Commissioners who handle complaints made against
media conduct whereas the Secret ariat is the executive arm of the Council and is headed by the 123
Executive Director who is also the Secretary to the Council.
3.3.1F unctions unctions
of t he Media C ouncil ouncil
Section 4 of the Media Act enumerates the functions of the Media Council as to: a)
mediate or arbitrate in disputes between the go vernment and the media, between the public and the media and intramedia;
b) promote and protect freedom and independence of the media; c) promote high professional standards amongst journalists; d) enhance professional collaboration among media practitioners; e) promote ethical standards among journalists and in the media; f) ensure the protection of the rights r ights and privileges of journalists in the performance of their duties; g) advise the government or o r the relevant regulatory authority on matters pertaining to professional, professional, education edu cation and the training of o f journalists and other media practitioners; h) make recommendations on the t he employment criteria for journalists; i) uphold and maintain maintain the ethics and discipline of journalists as set out in this Act and any other relevant law; j) do all matters that appertain to the t he effective implementation of this Act. k) compile and maintain a register reg ister of journalists, journalists, media enterprises and such other related registers as it may deem fit;
Relations Society of Kenya, one person nominated by the Kenya Institute of Mass Communications and one person nominated by the Kenya News Agency. 121 Supra note 110. 122 Section 5 Media Act No. 3 2007. 123 Supra note 110.
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l) conduct an annual review of the performance and the general public opinion of the media, and publish the results thereof thereo f in at least two local newspapers.
3.3.2
T he C ode ode of C onduct onduct for t he Practice of Journalism in Kenya
The Code of Conduct for the Practice of Journalism in Kenya for o ur present purposes provides pertinent issues worth consideration. These are: accuracy and fairness; obscenity, obscenity, taste and tone in reporting,; covering ethnic, religious and sectarian conflict and hate speech. As to accuracy and fairness, a journalist is expected to write a fair, accurate and an unbiased story o n matters of public interest. Whenever it is recognized that an inaccurate, misleading or distorted story has been published or broadcast, it should be corrected promptly and an apology published or broadcast.
Journalists are encouraged to avoid publishing pu blishing obscene, vulgar or offensive material unless such material contains a news value which is necessary in the public interest and further, to avoid publication of photographs showing mutilated bod ies, bloody incidents and abhorrent scenes unless such publication will serve public interest.
Similarly, news, views or comments on ethnic, et hnic, religious or sectarian dispute should be published or broadcast after proper verification of facts and p resented with due caution and restraint in a manner which is conducive to the creation of an atmosphere co ngenial to national harmony, amity and peace. Also, news reports or commentaries should not be wr itten or broadcast in a manner likely to inflame the passions, aggravate the tension or accentuate the strained relations between the communities concerned.
To be avoided avo ided too by journalists is making derogatory remarks on people ba sed on ethnicity, race, creed, colour and sex. Careful account should be taken of the possible effect upon the ethnic or racial group concerned, and on the population as a whole, and of the changes in public attitudes as to what is and what is not acceptable when using such terms.
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These principles constitute self-regulation mechanisms which are applicable to t he broadcast media. They constitute guidelines, directions and public expectations of the manner and nature of journalistic functions. Owing to this, regrettably, they don¶t mete out punishment for their breach.
3.4 Conclusion
Although an argument could be raised on the independence (or lack of it) of the Communications Commission of Kenya due to lack of a provision guaranteeing its freedom from political or commercial interference, questions which arise are twofold: One, is there a need for a specific provision which will underscore the need for the Commission to be free from political or commercial interference? Secondly, and most importantly, which body as between the Commission and the Media Council is best suited to check the media? Put differently, which is the µlesser of the two evils¶ in curbing irresponsible journalism? journalism? Mere provision for the independence of the Commission, though an act of ex of ex abundante cautela, cannot be the magical wand for ensuring that the Commission discharges its duties devoid of external influence. Be that as it may, perhaps what will be instructive to consider will be whether the Commission carries its statutory mandate in tandem with the guidelines provided for in the statutes. On a broader view, the stipulations are clear and unambiguous in relation to the 124
requisite requirements for grant of licences
125
and revocation of licences.
124
Under Section 46 C (3) of the Communications (Amendment) Act 2008 a licence is only granted upon fulfillment of conditions such as the licensee broadcasting in geographical limits that the Commission prescribes, inclusion of local content in programme schedule, payment of fees to be prescribed by the Commission and fulfillment of conditions which the Commission may prescribe; similarly, under Section 46 D (2) the Commission is given specific guidelines to follow while considering applications for the grant of a broadcasting licence which include public interest, diversity and plurality of views, availability of radio frequency spectrum e.t.c.
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The Media Council as an institution is ill-equipped in curbing irresponsible journalism since its functions, defined by the Media Act of 2007, are merely prescriptive rather than proscriptive and punitive. As such, while it may perform the role of µuphold and maintaining the ethics and discipline of journalists¶ there are no specific measures it can undertake for breach and where it can recent history has indicated that it is either unable or unwilling to do so. Writes Philip Ochieng: µ«evidence from real life shows irrefutably that, just as commercial interests force owners of the media operating in the West itself to suppress certain kinds of truths, so too the same commercial interests force the same owners of media operating in the Third World to ally themselves with the Third World 126
Establishments Establishments in the suppression of a set of ideas for which both have great antipathy.¶
So, as it were, the media finds itself juxtaposed between competing market interests in the form of powerful media conglomerates and the need for serving public interests. This usually involves a careful balance which sometimes breaches the very essence of journalism which is to entertain and to inform. One commentator co mmentator has opined: µ«the media systems in the early 21 st Century are given over largely to entertainment. Even many socalled µnews media¶ allocate only a small part of their content to public affairs²and a tiny amount to 127
disclosure of official wrong-doing¶
Faced with such unique challenges, the Media Council is incapable of discharging its functions well if placed on the same pedestal as the Communications Commission. As between the two, if a question is to be asked whether which is independent and in need of more reform then the Media Council answers to this. The Communications (Amendment) Act 2008 gives limited discretion to the Commission in the performance of its roles whereas the Media Act No. 3 of 2007 spells out wide, arbitrary and open roles to the Media Council. Similarly, the composition of the Council is predominantly from the media fraternity save for representatives from Law Society of Kenya, public and private universities and Public Relations Society of Kenya. This presents a curious observation of how impartial the Council will be in arbitrating matters for which complaints have been ra ised against the media.
125
Section 46 J of the Communications (Amendment) Act 2008 requires that the Commission revokes a licence where the licensee is in breach of the provisions of the Act or conditions of a broadcasting licence or fails to use the assigned broadcasting frequencies within one year after assignment by the Commission. 126 Ochieng, P. (1992) I Accuse the Press. Nairobi: Initiatives Publishers p. 115. 127 Curran, J. & Gurevitch (Eds) (2000) p. 122.
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CHAPTER FOUR COMPARATIVE ANA LYSIS OF REGULATION OF BROADCAST MEDIA
4.0 Introduction
The broadcast media has been the subject of stricter regulation than the press. Such regulation varies from one country to another depending on their peculiar circumstances, their institutional capacities, level of their democracy and adherence to international instruments. We have examined the Communications Commission of Kenya as a regulator, among other media institutions, of the electronic media. The role of the Media Council has also been considered as part of self-regulation mechanism of the broadcast media. However, a comparative analysis with other jurisdictions could assist in drawing similarities and differences which could assist in extracting best practices for the Kenyan broadcast bro adcast media and its institutions. The United States of America and South Africa have been chosen by the researcher for two reasons. One, U.S has been touted as upholding freedom of the press and therefore calling for an examination of its institutions. Two, South Africa used to have very repressive media laws during apartheid but after its end it has revamped its media institutions and provided progressive legislations protecting freedom of expression. These two countries have been chosen not because they are the best models but they offer an opportunity for closer scrutiny of their regulating institutions and legislations and how they operate. But care has to be taken in this regard because media policies, regulations and institutions are products of the society achieved through its collective experience, peculiar circumstances and political history. While parallels might be drawn between one country and another, it should be borne in mind that ultimately there are fundamental structures that media regulators have to have so that they are able to discharge their duties impartially and effectively. Similarly, there are international instruments which safeguard freedom of speech and the minimum threshold expected for effective functioning of the media in any country.
36
Thus, a comparative analysis offers this opportunity to examine the strengths and shortfalls of legislations in Kenya, South Africa and U.S. Such an exercise critiques the relevant legislations with the aim of recommending what best suits the media and society particularly Kenya.
4.2 South Africa
During apartheid South Africa¶s media was shackled under repressive government censorship. The provisions of the Radio Act, 1952, and the Broadcasting Act, 1976, were the statutes with which the government controlled the telecommunications and broadcasting industry.128With the end of apartheid in 1994 and enactment of the constitution, freedom of the press was reinstated. In this spirit bodies such as the Independent Media Commission, the Transitional Executive Council and the Independent Broadcasting Authority were formed.129 Established by the Independent Broadcasting Authority Act, the Independent Broadcasting Authority promotes the provision of a diverse range of radio and television broadcasting services; ensure issuance of licences which reflect cultural diversity of South Africa and sets acceptable standards for 130
programmes and advertising.
With the coming into effect of the Broadcasting Act 1999, the
provisions of the Independent Broadcasting Authority Act were supplemented and South African 131
Broadcasting Corporation (SABC)
132
restructured.
The constitution provides for freedom of
expression which includes freedom of the press and other media, freedom to receive or impart information or ideas, freedom of artistic creativity, academic freedom and freedom of scientific 133
research.
However, this does not extend to propaganda for war, incitement of imminent 134
violence or advocacy of hatred based on race, ethnicity, gender or religion.
There are instances
where this right could be limited as long as it is ³reasonable´ and ³justifiable´ and shall have
128
http://www.bowman.co.za/Broadcasting/Index.as http://www.bowman.co.za/B roadcasting/Index.asp p (accessed 10th March 2010). Ibid. 130 Section 4, Independent Broadcasting Authority Act 2000. 131 South African Broadcasting Broadcasting Corporation is the state-owned broadcaster broadcaster in South Africa which is the equivalent of KBC in Kenya. 132 Supra note 1; for more on the restructuring of the SABC, regulation on telecommunications and the current regulatory framework of the media in South Africa check http://www.bow http://www.bowman.co.za/B man.co.za/Broadcasting/Index roadcasting/Index.asp .asp.. 133 Section 16(1), Constitution Constituti on of the Republic of South Africa No. 108 of 1996. 134 Section 16(2), Constitution of the Republic of South Africa No. 108 of 1996. 129
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regard to the nature of the right, the importance of the purpose of the limitation and the nature 135
and extent of the limitation. limitation. 4.2.1
T he Independent C ommunications ommunications Aut hority of Sout h Africa
The Independent Communications Authority of South Africa (ICASA) is the regulator for the South African communications, broadcasting and postal services sector established by the 136
Independent Communications Authority of South Africa Act of 2000. 137
electronic communications and the postal sector.
It licenses and regulates
ICASA also monitors licensee compliance, 138
manages radio frequency spectrum and protects p rotects consumers.
It has various divisions.
139
The independence of the Authority is safeguarded by section 3(3) of the ICASA Act which provides that it shall be ³independent and subject only to the constitution and the law and must be impartial and must perform its functions without fear, favour or prejudice´. Further, the 140
Authority shall function without any poli po litical tical or commercial interference.
4.2.2
T he Press C ouncil ouncil of Sout h Africa
The Press Council of South Africa, a body set up as a ³self-regulatory mechanism«by the print media to provide impartial, expeditious and cost-effective adjudication to settle disputes´, is committed to protecting freedom of expression and excellence in journalistic practice and 141
It has adopted the South African Press Code (hereinafter referred to as the Press
142
and is its custodian. The Council is composed of a total of twelve members formed by
ethics. Code)
six press representatives and six public representatives.
135
Section 36, Constitution of the Republic of South Africa No. 108 of 1996. th http://www.icasa.org.za/ (accessed 10 March 2010). 137 Ibid. 138 Ibid. 139 These are the Engineering and Technology Division, the Licensing and Compliance Division, the Markets and Competition Division, the Complaints Division, the Consumer Affairs Division, the Legal Division and the Communications Division. 140 Section 3(4), the Independent Communications Authority of South Africa Act. 141 th http://www.presscouncil.org.za/(accessed http://www.presscouncil.org.za/ (accessed 29 March 2010). 142 The Code covers areas such as truthful, accurate and fair reporting of news, prohibition of the publication of child pornography, prohibition of discrimination and hate speech, where advocacy of strong and controversial views are permissible, need for due care and responsibility in regard to the presentation of brutality, violence and atrocities. 136
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One of the key provisions in the Press Code is on the Complaints Procedures found under Part B of the Code. An Ombudsman receives complaints from aggrieved persons or bodies to which he endeavours to achieve a settlement.
ritique 4.2.3 C ritique In as much as the South African Constitution is commendable, there is need to probe it. The laudatory comments it has received have not escaped the attention of one commentator: µPerhaps no constitution has been the subject of as much rave reviews and romantic hyperbole as the constitution of post-apartheid South Africa. It might very well be that it deserves all the praise that is lavished upon it; it is a magnificent constitution but it is debatable whether it is necessarily superior to all others«¶143
This could have been informed by the ³experiences of other countries in constitutionalism¶ on a general scale but more specifically at addressing pertinent problems closely tied to South African 144
history.
Consequently, as a document, the constitution has tried to address past injustices and
experiences from other countries and civilizations. While this might deserve approbation, it will not necessarily follow that such a constitution could be the antidote to all ills afflicting South Africans even in the media sphere. There have been judicial pronouncements in South Africa worthy of mention. As per O¶Regan,J in Sout h African National Defence Union v Minister of Defence: Defence: Freedom of expression lies at the heart of a democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society
143 144
Makali, D. (Ed.) supra p. 372. Ibid.
39
generally. The Constitution recognizes that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters. 145
Additionally, freedom of expression has been regarded as a ³web of mutually supporting rights´ 146
in the constitution
and a ³ sine qua non for every person¶s right to realise her or his full
potential as a human being, free of the imposition of heteronomous power´.147 4.3 The United States of America 4.3.1
T he F ederal ederal C ommunications ommunications C ommission ommission
The Federal Communications Commission (FCC) is an independent United States government agency established by the Communications Act of 1934 charged with regulating interstate and international communications by radio, television, wire, satellite and cable.148 It is directed by five Commissioners serving terms of five years appointed by the President with the advice and 149
consent of the Senate.
There are seven operating Bureaus and ten staff Offices. For our
purposes, mention of a few few will do: Media Bureau which regulates AM, FM radio and televisio televisio n broadcast stations, cable television and satellite services; Consumer and Governmental Affairs Bureau which educates and informs consumers about telecommunications goods and services and coordinates telecommunications policy efforts with industry and other governmental agencies. The Enforcement Bureau enforces the Communications Act and the rules of the Commission. It should be noted that the commissioners are not supposed to be financially interested in any company manufacturing or selling telecommunications equipment or be interested in any way as to compromise his ability of discharging his responsibilities as a commissioner. To curb political
145
(CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999) para. 7. See Case and another v Minister of Safety and Security and others (CCT20/95, CCT21/95) [1996] ZACC 7; 1996 (3) SA 617; 1996 (5) BCLR 608 (9 May 1996); As per Mokgoro J, in para. 25 But my freedom of expression is impoverished indeed if it does not embrace also my right to receive, hold and consume expressions transmitted by others. Firstly, my right to express myself is severely impaired if others rights to hear my speech are not pr otected. And secondly, my own right to freedom of expression includes as a necessary corollary the right to be exposed to inputs from others that will inform, condition and ultimately shape my own e xpression. Thus, a law which deprives willing persons of the right to be exposed to the expression of others gravely offends constitutionally constitutionally protected freedoms both of the speaker and of the would-be recipients. 147 Case case Para 26. 148 http://www.fcc.gov/aboutus.html(accessed http://www.fcc.gov/aboutus.html (accessed 10th March 2010). 149 Section 4[47 U.S.C. 154] (a), Communications Act 1934. 146
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infiltration, there is a requirement that three of the commissioners may be of the same political party. 4.3. 2 C ritique ritique
Although the United States of America has been lauded as a paragon of freedom of expression, such needs examination. Attempts at justifying such superiority have been propounded by commentators, including Justice Scalia of the United States Supreme Court, who have proposed that ³Americans enjoy greater political and civil rights than the Russians´. 151
the Supreme Court Judges
150
Judicial activism of
perhaps extol these fundamental guarantees of American tolerance
for freedom of expression. Justice Oliver Wendell Holmes is credited for µClassic Market-place of Ideas¶ postulation in his dissenting speech: µBut when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of th eir own conduct that the ultimate good desired is better r eached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.¶ Constitution.¶152
Like his friend Holmes, Justice Louis Brandeis has also given one of the most powerful defences for freedom of expression: µThose who won our independence believed that the final end of th e state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth..that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government...Believing in the power of reason as applied through public discussion, they eschewed silence¶153
However, even with these hallmarks, America is tainted by its collective history of racial intolerance, judicial lethargy on the front of freedom of expression protection in the McCarthy era and its treatment of members of the Communist Party and those suspected of espionage. 150
Makali, D. (Ed) supra p. 375. Such as Oliver Wendell Holmes, Louis Brandeis, James Madison e.t.c. 152 Abrams v United States (1919) ; in dissent, 250 U.S. 616. 153 Whitney v People of State of California (1927) 274 U.S. 357. 151
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Levy has said that, ³the persistent image of colonial America as a society in which freedom of 154
expression was cherished is an hallucination of sentiment that ignores history´.
As Mulei, C.,
et al. observe: µHistorically, a few countries, among them United States and Sweden, can claim to be liberal compared to the mostly repressive rest of the world with regard to media freedom. But that is not necessarily to agree with the views of author Nadine Strossen who has bluntly asserted that ³the United States has one of the freest presses in the world, operating operating relative r elatively ly unconstrained by the legal or other pressures¶155
Further, in what has puzzled modern observers, ³despite having the First Amendment since 1791...judicial sensitivity to freedom of expression concerns is a relatively recent development´ 156
occasioned by heavy-handed government intrusion and manipulation.
Also, judicial review
was an alien concept in the American Constitution until the judicial decision of Justice John Marshall in the case of Marbury Marbury v Madison.157 In contrast, section 84 of the Kenyan Constitution provides for an avenue for redress in the High Court for breach of one¶s fundamental rights and freedom. It must however be pointed out that in as much as the United States of America is the prototype of free media, she is a product of her collective history and circumstances. In essence, she might be the exemplar of freedom of expression but cannot be faulted because her system might be archetypal but never faultless.
4.4 Conclusion
It might be argued that the Communications Act 1934, just like the ICASA Act, has provided for the independence of the media regulating institutions from commercial and political interference something which is lacking in the Communications (Amendment) Act 2008 save for Section 5B which provides that ³«the Commission shall exercise its functions independent of any person or body´. This is hardly comprehensive and it creates a lacuna for manipulation of the Commission thus compromising its independence.
154
Makali, D. (Ed.) supra p. 20. ibid p. 361. 156 Ibid p. 376, also p. 361. 157 (1803) 5 U.S. (1 Cranch) 137. 155
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The Proposed New Constitution of 2010 contains some provisions on freedom of expression and of media. An improvement from from the current constitution, section section 33 of the draft provides for for the right to freedom of expression which incorporates freedom of artistic creativity, academic freedom and freedom of scientific research. These are not provided for under the current constitution. Worthy of mention is also the incorporation of the provisions of Article 20 of the International Covenant on Civil and Political Rights. These are in limitation of this right to freedom of expression against propaganda for war, incitement to violence and hate speech. Section 34 provides for the freedom of the media and bars the State from controlling the media and penalizing individuals for any opinion or view of broadcast content. In addition, broadcasting and other electronic media are given freedom of establishment subject only to licensing procedures. Similarly, a curious observation relates to the need for a state-owned media to afford fair opportunity for the presentation of divergent views and dissenting opinions. Perhaps this provision is informed of the excesses of Kenya Broadcasting Corporation when it was put under the manipulation of o f party politics.
Even with the safeguards provided for in the ICASA Act for ICASA¶s independence, clarity needs to be shed on how the regulating institution is expected to be free from political and commercial influence through some standard mechanism as is spelled out in the Communications Act 1934.
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CHAPTER FIVE SUMMARY, CONCLUSION AND RECOMMENDATIONS
5.0 Summary and Conclusion
Regulation of the broadcast media is a vexed issue. This owes to the fact that on one hand there is need for upholding freedom of expression and therefore calling for restraint in policy and legal measures that might be seen as a ³gag´ to press freedom and on the other hand there is a need for safeguarding public interest since the airwaves are public property which need to be used wisely and in accordance with the wishes of the public. Consequently, a balance ought to be struck between these two extremes which will ensure a better operation of the broadcast media. The best philosophy which will therefore define the broadcast media is thus a worthy suggestion. There are different press theories postulated which include Authoritarianism, Libertarianism, Social Responsibility Theory, Soviet Media Theory, Development Communication Theory and Democratic Participant Theory. Arguments might be advanced on what press theory best encapsulates the Kenyan broadcast media situation. Such a task is arduous due to the hybrid manifestations of the various press theories and the rapid changes in society, occasioned by events, political changes and the common history of a country. Similarly, a certain press theory could be manifested on a deceptive superficial level but rendered nugatory by test of democracy, change of regime or a changed Executive stance on the media. As it were, there are two divides of broadcast media regulation: self regulation in the form of the role of the Media Council and state regulation arguably in the form of Communications Commission of Kenya. The Media Council has been bestowed with the role of safeguarding the interests of journalists and improving on their t heir ethics and professionalism. Its membership is designed in such a way that the Council is able to look into the internal affairs of journalism with realization of the importance of freedom of expression. However, such a Council could be faulted considering the fact that, if it be true, media conglomerates are driven by commercial and market forces which have the capacity of permeating into the Council thus sacrificing its objectivity, impartiality and search for public interest and professionalism. There have been complaints about the role of the 44
FM radio stations in fanning ethnic hatred, holding talk shows with sexual connotations and TV stations airing materials without regard to the children audience. These issues raise serious questions about the extent to which the Media Council can assist in ³self-regulating´ the broadcast media itself. Is it that its role is prescriptive and not proscriptive, or subjective rather than objective and wide and discretionary rather than limited and measurable? Put differently, are the blames leveled against the Media Council justified or is it a case of misdirected blind criticism on an otherwise presupposed internal mechanism for improving journalism practice here in Kenya? To what extent is the Code of Conduct for the Practice of Journalism in Kenya effective and what could be done to improve it? These are pertinent questions with no clear-cut answers. Whereas the milestones achieved by the Media Council cannot be quantified, the inherent deficiency in such an exercise is a pretension that the Council¶s roles are fixed with ultimate fixed results. On the contrary, the Council¶s role might be an exercise of a slow and gradual process whose effects might not be rapid and visible but all-encompassing and cross-cutting. Perhaps, then, such a debate as to whether the Council is objective or subjective might be without merit because the media itself, same with the Council and society, is a product of an array of concealed interests. The question that begs is how the Council could be improved so that it can discharge its functions in a better way. The roles of the Council are clearly defined in the Media Act 2007. On a legal level, there are recommendations suggested for the Council. On a social level, the Council needs to re-examine itself and be ready to ³bite the bullet´ where journalistic standards have been sacrificed and admonish these and conduct seminars and awareness programmes on the recommended journalistic practices. This line of thought is merely platitudinous and ca nnot suggest areas for legal reform. The Communications Commission of Kenya, backed by state support, legal mandate and properly structured modus operandi and defined limits and criteria for arriving at its decision, perhaps befits the hallowed ground of being the elixir for regulating the media than the Media Council. The Media Council finds itself trapped in an amorphous setting, though backed by a legal mandate through the Media Act 2007, it is cast in a position where its functions are not followed by some properly formulated monitoring mechanisms. 5.1 Recommendations
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Having examined the Communications (Amendment) Act 2008, the Media Act No. 3 of 2007 and the Kenya Communications (Broadcasting) Regulations 2009, there are weaknesses manifested in these statutes which need reform. Proposed amendments will be suggested. The institutions of the Media Council and the Communications Commission of Kenya will then be looked at briefly and recommendations given on ways in which they could be improved. 5.1.2 Reforming the Statutes
a) C ommunications ommunications (Amendment) Act 2008 Section 46 (1) H of the Communications (Amendment) Act 2008 empowers the commission to set standards for the manner, time and type of programmes to be broadcast by licensees under the Act. Subsection 2 of the Act empowers the commission to prescribe a Programme Code, review it every 2 years and prescribe a watershed period of programming for children. The Programme Code is not defined save for Section 33 of the Kenya Communications (Broadcasting) Regulations 2009 where the Commission¶s role is replicated. Although there could be no discrepancy in this provision, such a power is wide and expectedly so where the Programme Code is not defined in law but left to be construed by the Commission. In the interpretation section of the Communications Act 2008, a Kenyan programme is defined to mean ³sounds or vision or a combination of both whose content comply with the classification of local content as may be required by the Commission Commission from time to time´. Questions of public public tastes or ³local content´ have no definite answers especially where the Programme Code is not defined thus leaving it to manipulation. Recommendation Need for Definition of Programme Code: Although a precise definition of the Code could be
limiting if not imprudent, a broad overview of what should guide it is suggested. It should give the general outlines of what the Code prescribes upon which the Commission can discharge its mandate.
b) Kenya C ommunications ommunications (Broadcasting) Regulations 2009
46
The Kenya Communications (Broadcasting) Regulations 2009 (hereinafter referred to as the Regulations) has been criticized for granting upon the Commission the discretion of determining other requirements before granting licence and need for an applicant to demonstrate capability to offer a minimum of ten channels channe ls to each subscriber.
Recommendations Deletion or rewording of the clause: Section 3 (1) (e) of the Regulation indicates µsuch other
information or requirement as the Commission may from time to time prescribe¶ in relation to the requirements that need to be furnished by the Commission. This ought to be deleted altogether or alternatively reworded in such a manner as to involve consultation in the process if there are no exhaustive and detailed criteria. Deletion of clause: Section 3 (2) of the Regulation provides the requirement for applicants to
satisfy the Commission of capacity to offer a minimum of ten channels to each subscriber. This clause needs to be deleted for two reasons: One, capacity to offer channels is dictated by availability of channels in the multiplexer, and two, it does not allow licencees the ability of judging the number of channels to offer due to market demands, profit margins and a wide array of other factors.
5.1.3 Reforming the institutions
a) T he C ommunications ommunications C ommission ommission of Kenya The issue of the independence or lack of it, of the Communications Commission of Kenya needs examination. Section 5 B of the Kenya Communications (Amendment) Act of 2009 provides that the Commission shall exercise its functions independent of any person or body. This is not satisfactory since it doesn¶t safeguard the institution from political or commercial interests. Recommendations
i.
Insertion of the clause µpolitical or commercial interests¶: Although it could be
argued that express provision for bar of the Commission from political or commercial 47
interests could not be the panacea for its independence or not, there is wisdom in inserting these words in the statutes as a precautionary measure. However, the greatest test of whether the Commission will indeed be independent from political or commercial interests lies in its collective philosophy, need to uphold democracy and operation within the ambit of the law that forms it.
ii.
Publicization of the Commission¶s activities: The Commission should be made
µrelevant¶ to the ordinary person. This will entail conduction of awareness campaigns in the media, updating its website regularly and making it simple for an ordinary Kenyan to understand its composition and roles. iii.
Sustainability: The Commission is currently state-regulated. While there is no
discrepancy in this since it is the practice even in other jurisdictions, problems might arise where a dictatorial regime might want to compromise the probity of the Commission¶s activities either in rewarding it for a folly or punishing it for sticking to its mandate. Moreover, even when the state might be willing to support the activities of the Commission, the funds it channel might be limited in comparison to its wide mandate. The Commission could avoid such an eventuality by finding alternative means of deriving its funds through investments which could substantially boost its relevance and efficacy.
b) T he Media C ouncil ouncil Perhaps the two essential functions played by the Council as provided for under section 4 of the Media Act relate to arbitrating disputes between the government and the media and upholding journalistic standards and ethics. In the promotion of these roles, the Council could follow these guidelines: Recommendations
i.
Awareness Campaigns: There is need for awareness and sensitization to be conducted
first to the media practitioners on the kind of journalistic ethics that is expected of them. 48
This will take the form of continuous cont inuous education on e merging merging issues in their fields whether in the legal sphere or need to uphold high journalistic standards for public good. The general public also needs to be sensitized on the role of the media and what they could do to improve it in relation to desisting from restriction from issuing hate speeches and their right to decent programmes for them and their children. Complaints procedures need to be demystified so that the general public is aware of such recourse.
ii.
Need for collaboration with the Commission: The Commission is normally regarded
by the media as µtight-fisted¶ government machinery ready to clamp down on media freedom. Such a perception, whether real or imagined, will greatly be assuaged by mutual collaboration and assistance between the two bodies. The Council could do well in improving the media by fostering good relations with the Commission in legal and policy guidelines and seeking ways in which errant journalists cannot further dent the image of journalism. iii.
Steps against dwindling standards in FM Radio Stations: Given that the Council is
mandated to look into the ethics and standards of journalists, the Council needs to examine the rising cases of sexual connotations in FM Radio Stations and query raised about the role that the radio stations played in fanning ethnic hatred. This role cannot be left to the government and the Commission to deal with. iv.
Strengthening the Ethics and Public Information Committee: Save for its mention
under the Media Act, the Ethics and Public Information Committee¶s functions have not been publicized. It is from sensitization of the public of the Committee¶s roles and relevance that media sanity, prejudices, misconceptions and mechanisms for recourse could be shaped, improved, corrected and restored. v.
Demystifying the Complaints mechanism: Although the mechanism and procedure for
lodging complaints are clearly provided in the Media Act, the general public remains almost totally oblivious of such mechanism. Further, the procedure for lodging complaints electronically should be strengthened in the Media Council website and made consumer-friendly. On a different note, too, the website needs to be spruced up and
49
updated regularly so that it keeps tab with the progress and challenges in media. This should also be done in the Kiswahili language for which the common consumer is wellaccustomed to. vi.
Promotion of judicial activism: There has been a general feeling that the judiciary has
been lethargic if not unnecessarily hard in advancing freedom of expression in Kenya. This has taken the form of its approach and punishment meted out in defamation suits. While this stance has the benefit of upholding professionalism, decency and recourse for injury suffered by a victim, the long term effect of this is subjugation of media freedom and creativity. Whereas provisions of law could be interpreted in such a way as to capture the spirit of the law, this ought to be done in such a way as to strike a balance between the need to uphold freedom of expression and serving private and public interest. There is need for the judiciary to break away from constricting and limited interpretation of freedom of expression and adopt a broad-based, wide-ranging and germane approach to media issues.
50
BIBLIOGRAPHY Books
Baker, C.E. (1989) H uman uman Liberty and F reedom reedom of Speech. New York: Oxford University Press. rd
Bittner, J.R. (1991) Broadcasting (1991) Broadcasting and Telecommunications: An Introduction. Introduction. 3 Ed. New Jersey: Prentice-Hall, Inc.
Curran,J. (2000) ³Rethinking Media and Democracy´ in J. Curran and M. Guvevitch (Eds.), Mass Media and Societ . New York, NY: Oxford University Press Inc. (p. 120-154).
Gibbons, T., (1998). Regulating (1998). Regulating t he Media. Media. London: Sweet and Maxwell. J. Milton., Areopagitica, Milton., Areopagitica, A speech for t he Liberty of Unlicensed Printing ed. Noel Douglas (London: Humphries & Co. Ltd., 1927).
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Mill, J.S.(1869) On Liberty. Liberty. (4 Ed.) London: Longmans, Green, Reader and Dyer.
Makali, D. (Ed) (2003). Media (2003). Media Law and Practice: T he Kenyan Jurisprudence. Nairobi: Phoenix Publishers Ltd. Ochieng, P. (1992) I (1992) I Accuse t he Press. Nairobi: Initiatives Publishers.
Stone, G., Seidman, L., Sunstein, C., Tushnet, M., Karlan, P. (2003) T he F irst irst Amendment . New York, NY: Aspen Publishers. Zelezny, J.D., (1991).
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Law: Liberties, Restraints, and t he Modern Media. Media.
California: Wadworth Publishing co.
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http://www.gret.org/parma/uk2/resources/edm/pdf/Kenya http://www.portal.unesco.org http://www.downloads.bbc.co.uk http://www.digital.lib.msu.edu http://www.pff.org http://www.comminit.com http://www.marsgroupkenya.org/pdfs/2008/10/Waki_Chapters/Chapter_8_The_media_and_the_ post_election_violence.pdf http://www.pressreference.com/Gu-Ku/Kenya.html http://www.communication.go.ke/media.asp?id=46 http://www.standardmedia.co.ke/letters/InsidePage.php?id=2000001030&cid=17& http://www.canlii.org/en/ca/scc/doc/1989/1989canlii20/1989canlii20.html
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http://www.journalismethics.ca/research-ethics/history.htm http://press-freedom.suite101.com/article.cfm/what_is_the_social_responsibility_theory http://rezaspace.blogfa.com/post-1014.aspx https://www.cia.gov/library/publications/the-world-factbook/geos/ke.html http://www.cck.go.ke/UserFiles/File/migration_digital_tv.pdf http://downloads.bbc.co.uk/worldservice/trust/pdf/kenya_media_legal_framework.pdf http://www.Blackwellreference.com http://www.law.indiana.edu www.ealawsociety.org/.../Press_%20release_%20on_%20Communications _%20Bill.doc http://www.apc.org/en/system/files/CICEWAKenya20090908_EN.pdf http://kenyapolitical.blogspot.com/2008/12/media-industry-statement-on-kenya.html http://www.cck.go.ke http://www.fcc.gov http://www.mediacouncil.or.ke/ http://www.bowman.co.za/Broadcasting/Index.asp http://www.icasa.org.za/ http://www.fcc.gov/aboutus.html
Legislations
The Kenya Communications (Broadcasting) Regulations 2009.
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The Kenya Communications (Radio Communications and Frequency Spectrum) Regulations 2009.
Kenya Communications (Amendment) Act 2008. Media Act No. 3 of 2007. The Constitution of Kenya. Communications Act 1934. Independent Broadcasting Authority Act 2000. Constitution of the Republic of South Africa No. 108 of 1996.
International Conventions
International Covenant on Civil and Political Rights Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entered into force on 23 March 1976 in accordance with Article 49. Universal Declaration of Human Rights Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948. 194 8. African [Banjul] Charter on Human and Peoples' Rights, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force on 21 October, 1986.
European Convention (Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11) Adopted by the Council of Europe in Rome on 4 November 1950.
American Convention on Human Hu man Rights entered into force on 18 July 1978.
Cases
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Abrams v United States (1919) 250 U.S. 616.
ase C ase
and anot her v Minister of Safety and Security of ot hers (1996) 5 BCLR 608.
Cheserem
v Immediate Media Services( Services( 2000) Nairobi HCCC No. 398.
dmonton E dmonton
Journal v Alberta (Attorney General) (1989) 2 S.C.R. 1326.
Marbury v Madison (1803) 5 U.S. (1 Cranch) 137.
Sout h African National Defence Union v Minister of Def ence (1999) 6 BCLR 615.
W hitney v People of State of C alifornia alifornia (1927) 274 U.S. 357.
Other Materials
Abbott, B., Lipsky, JR (1976) ³Reconciling ³Reco nciling Red Lion and Tornillo: A Consistent Theor y of 3. Media Regulation´. 28 Stanford Law Review 56 3.
Campbell, AJ (1999) ³Self-regulation ³Self-regulation and media´. media´. 51 F ederal ederal C ommunications ommunications Law Journal 715. Shale, I.P., µWho is Watching Who? Regulation Regu lation of Media and Freedom Freedo m of Expression in Uganda: A Critical Analysis Analysis of the Press and Journalists Journalists Act 1995¶. (2008) (unpublished (unpublished dissertation) (accessed from http://www.up.ac.za/dspace/bitstream/2263/8081/1/shale.pdf http://www.up.ac.za/dspace/bitstream/2263/8081/1/shale.pdf ). ).
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