Ensure the review process streamlines media regulation in Kenya

Kenya's media landscape is often hailed as one of the most vibrant and pluralistic in Africa. The freedom of expression is robustly protected, allowing individuals from diverse backgrounds to voice their opinions and critique the government, including powerful figures, with minimal repercussions.

This environment is anchored in the Bill of Rights, which enshrines freedom of expression, the right to information, and the freedom and independence of the media. Furthermore, public participation is recognised as a legislative and governance prerogative and a national value under Article 10 of the Constitution. The judiciary, a key pillar of Kenyan democracy, has played a pivotal role in upholding these freedoms. Through various landmark rulings, the courts have reaffirmed the right to free speech and press. Over the years, the courts have struck down numerous laws that infringe on these rights, both those predating and following the 2010 Constitution. 

In 2017, the High Court declared Sections 194 and 132 of the Penal Code, which criminalised defamation and "undermining the authority of public officers," as unconstitutional. These provisions were deemed unjustifiable in an open and democratic society, as they stifled public discourse on governance. Similarly, the courts struck down Section 29 of the Kenya Information and Communication Act, which criminalised the "misuse of a licensed telecommunication device," often targeting journalists and bloggers critical of those in power. In 2015, parts of the Security Laws Amendment Act, including a clause requiring journalists to seek permission from the Inspector General of Police before publishing terrorism-related content, were also annulled.

However, the journey has not been smooth. The enactment of the Computer Misuse and Cybercrimes Act in 2018 introduced provisions akin to criminal defamation and criminalised false publication under Sections 22 and 23. The High Court upheld these sections, prompting an appeal that remains pending. This highlights the ongoing tension between safeguarding freedoms and addressing legitimate concerns about misinformation and harmful content.

It is essential to recognise that freedom of speech and press, as articulated under Article 33(2) of the Constitution, comes with responsibilities. This article explicitly prohibits hate speech, incitement to violence, propaganda for war, and advocacy for discrimination-based hatred. Moreover, it emphasises the importance of respecting the rights and reputations of others. This is not a limitation but a call to exercise these freedoms responsibly and considerately, underscoring the gravity of these responsibilities.

The media space in Kenya is regulated by approximately 21 laws, including the Media Council Act, the Kenya Information and Communication Act, the Books and Newspapers Act, the Data Protection Act, the Access to Information Act, the Penal Code, and the Computer Misuse and Cybercrimes Act. An ongoing review aims to further align these laws with the Constitution and eliminate any duplication of roles. This review addresses concerns about the regulatory functions of the Media Council of Kenya, the Media Complaints Commission, the Communications and Multimedia Appeals Tribunal, and the Communications Authority, ensuring a coherent and efficient legal framework.

Journalists and media enterprises are bound by a code of conduct under the Media Council Act. This code upholds ethical standards such as accuracy, fairness, independence, integrity, respect for privacy, and the protection of marginalised groups and children. The Media Complaints Commission enforces this code, ensuring that ethical standards are maintained. As the media landscape evolves, ongoing legal reviews and reforms will be crucial to ensure the media remains a cornerstone of democracy.