Blow to CAK as Court of Appeal allows MCK to develop media code

Communications Authority Of Kenya headquarters in Nairobi. [Wilberforce Okwiri, Standard]

It is a blow to the Communication Authority of Kenya (CAK) after the Court of Appeal declined to stop the Media Council of Kenya (MCK) from developing a broadcasting programming code.

Justices D. Musinga, Mumbi Ngugi, and F. Tuiyott directed that the appeal filed by CAK against the Kenya Union of Journalists (KUJ), MCK, and the Attorney General (AG) be heard on a priority basis.

CAK had appealed a High Court decision by Justice L. Mugambi, which declared both its broadcasting and programming code and sections 46A and (j), and 46H of the Kenya Information and Communications Act (KICA) unconstitutional.

“We do not think that it would be in the public interest to stay the impugned judgment of the High Court, which was rendered in conformity with the provisions of the Constitution and declared section 46A (i) and (j) and 46H (i) of the Kenya Information Communications Act unconstitutional,” said Justice Musinga.

In dismissing the appeal, the appellate court stated that there would be no gap in the regulation of radio and television media after 7 May 2025, as by that time, MCK will have developed the media standards as directed by Justice Mugambi.

The judges noted that since CAK had only satisfied one of the twin principles under rule 5 (2) (b) of the appellate court’s rules, the application must fail.

In the impugned judgment, the High Court directed MCK to execute its constitutional and statutory mandate by developing age-appropriate standards to protect children and other vulnerable persons from inappropriate media content, in accordance with Article 34(5) of the Constitution as read with Section 6 of the Media Council Act.

MCK informed the appellate court that it has already embarked on this exercise, which will be completed within the six-month period given by the High Court.

The appellate court also noted that section 46H (ii) (a) of the Kenya Information Communication Act requires CAK to review the programming code every two years, implying that the broadcasting code being developed by MCK may be revised or amended if the appeal succeeds.

While seeking a reversal of the High Court judgment, CAK warned of the risk that television and media broadcasts could operate in a vacuum.

CAK Corporation Secretary and Director of Legal Services, Lydia Sitienei, said that the absence of an appropriate broadcasting programming code after 7 May 2025 poses a significant danger of an unregulated broadcast media space.

Sitienei added that the appeal would be rendered nugatory if MCK proceeds to develop and implement standards or a broadcasting programming code to replace its own.

She said the radio and television broadcast media regulatory landscape would be altered irreversibly, and the appeal would be overtaken by events.

However, KUJ stated that MCK already has a code of conduct for the practice of journalism, provided in Schedule II of the Media Council Act, which requires only a few modifications to incorporate age-appropriate standards for the protection of children.

KUJ’s Secretary-General, Eric Oduor, said that as the state organ with the professional competence to advise the government on ethical standards in the media, whatever code is generated by MCK can be adopted.

Oduor added that no public resources would have been wasted if the CAK appeal is decided in their favour, saving valuable time in coming up with a code that is compliant with the Constitution.

He also stated that MCK seeks to circumvent and violate the provisions of Article 34(5) of the Constitution, which clearly and unequivocally mandates MCK to set standards and regulate and monitor compliance with such standards.

Oduor explained that to give effect to this article, Parliament enacted the Media Council of Kenya Act, 2013, which established MCK under section 5 as an independent body, well-equipped and empowered to regulate and monitor media broadcasts in Kenya.

He concluded by saying that CAK’s mandate under Article 34(3) of the Constitution does not include regulating media content and cannot, therefore, be invoked to justify encroaching on MCK’s domain.