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1. INTRODUCTION

1.1 Freedom of speech and expression as the pillars of democracy

Freedom of media, freedom of speech and freedom of expression are the basic tenets of a

democratic society1.This is because without such freedoms, would-be leaders will not be

able to sell their ideas to the electorate in their bid to be elected as leaders while those in

the opposition will not be able to play their role of criticizing the incumbent government

because such a move will be seen as a ploy to overthrow the government in place.

A society without these rights is a society bleeding of despotism and any leader claiming

to be leading a democratic society while at the same time abridging these freedoms will

be living a lie because there is no democratic society that has been built by limiting these

freedoms. Any leader in a free and democratic society has ascended onto power through

the facilitation of these freedoms.

The first amendment to the US constitution was incorporated into the US constitution as

an effort to encourage free press as well as free and unrestricted dissemination of ideas,

thoughts, sentiments which had been restricted2.It was therefore very important that there

1 In South African National Defence Force Union v Minister of Defence 1999(4)SA 469(CC) The South

African Constitutional Court held that “Freedom of expression lies at the heart of 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 generally”

2 The First amendment to the constitution of the United States of America was ratified in the year 1791

and states: Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom of speech, or of the press; or the right of

the people peaceably to assemble, and to petition the Government for a redress of

grievances.

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be such an amendment so as to encourage an informed society. Thomas Jefferson is

quoted as having said “A society cannot be both ignorant and free”. This was the attitude

at the time of passing the amendment as the framers of the American constitution

believed that if the new American citizens failed to take care to share information

completely amongst themselves, they would be worse off than they had been as subjects

of the British monarchy the fled. They had a desire for democracy and openness and

sought to leave behind a history of tyranny and official control of information and as

such, they stated that freedom of speech and expression is not a luxury of democracy but

it should be recognized as a necessity3.It is the basic for a democratic form of government

to function and continue to exist by guaranteeing free expression and educated criticism.

1.2 The state of enjoyment of these rights in Kenya and Pre-liberalisation of the

airwaves

Under the Kenyan constitution, article 33 provides for freedom of expression while

article 34 provides for the freedom of media. The inclusion of these rights may be

informed by the nation’s chequered history as far as the exercise of these rights and

freedoms is concerned. The 1970s and the 1980s may be said to have been Kenya’s

darkest years as the regimes at the time sought to limit the free exercise of the freedom of

media, speech as well as freedom of expression. No one was allowed to picket, give any

opinion that was contrary to state policy. Private media was highly censored and any

person whether a high-flying politician, an esteemed academician or an eminent

3 History of the first amendment:<http:// www.illinoisfirstamendmentcenter.com/history.php, at 13th

may 2011>

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clergyman could be bundled up and detained without trial if he or she uttered a word that

the government considered dissent.J.M Kariuki is said to have been assassinated for

criticizing state policy that was widening the gap between the rich and the poor.

Magazines such as the ‘Society’ edited by Pius Nyamora, ‘Finance’ by Njehu Gatabaki

and ‘The People’ by Stanley Matiba were banned or censored by the Moi regime all in

the name of protecting ‘national security’4

The only media house that was allowed to operate without censorship was the infamous

and government-owned Voice of Kenya (V.O.K) whose mandate was nothing short of

glorification pf the incumbent. It spread the government propaganda by branding

dissidents as agents of discord and mutinees.The first headline had to be about the

president and it did not matter whether he was opening a roadside Kiosk or a monument

in his backyard. It is in this light that Article 34(4) was inserted in the constitution which

among other things empowers all state media to be free to determine the content to

broadcast, to be impartial and to afford fair opportunity for the presentation of divergent

views and dissenting opinions. This is meant to protect the state media from manipulation

where anti-government opinions or views are censored and considering the fact that state

media has the widest reach; protect the populace from regime propaganda.

The 1990s heralded a new chapter in the state of freedom of media, expression and

speech. This was due to the re-introduction of multi-party democracy in Kenya. Because

of the changing political playground, there was the need to liberalize the airwaves and

4 Kenya’s dilemma in Security

issues:<http://www.bungelamwananchi.org/index.php?option=com_content&view >at 15th May 2011

4

there were entrants onto the arena of broadcasting and this called for new regulations

.K.T.N (Kenya Television Network) and Capital F.M started broadcasting. For once there

were new media houses whose content was not stipulated by the government in place5.

The 2000s heralded a blast revolution in the media industry in that many FM stations

were established as well as other privately owned T.V stations. S.K Macharia launched

his Royal Media Services that owns a host of F.M stations and a T.V station. Nation

Media Group launched Nation T.V (now known as NTV) and Nation FM (now known as

Easy FM).Since then, the growth in this sector has been unprecedented. There are

currently over twenty T.V stations and over 90 FM stations in Kenya each filling a

unique niche in consumer preferences.

1.3 Post-liberalisation of the airwaves in Kenya

The proliferation of T.V stations and FM stations to such unprecedented levels in Kenya

has brought with it the unique challenge of regulating their establishment as well as

regulation of their content. This is what led to the establishment of the Communications

Commission of Kenya6.Its roles include: the regulations of the telecommunications and

postal/ courier sub-sectors and the management of the country’s radio-frequency

spectrum. The Kenya Communications (Amendment) Act 2009 further enhanced the

regulatory spectrum as well as jurisdiction and its functions now include: protection of

consumer rights within the communications environment, ensuring fair play in the

5 The liberalization was due to Section 36(1) of the Kenya Communication Act No.2 of 1998 which gave

the Communications Commission of Kenya the powers to grant licences to those who would wish to

establish T.V or radio stations

6 CCK was established in 1999 pursuant to Kenya Communications Act No.2 of 1998

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industry, monitoring the activities of licensees to enforce compliance with the licence

terms and conditions as well as the law and facilitating e-commerce7

The question of monitoring the activities of licensees to enforce compliance with the

licence terms and conditions as well as the law and protection of consumer rights forms

the basis of this research. Does the regulation of the content broadcasted by T.V and

radio stations mean an infringement on the freedom of expression and speech? And is the

regulation in tandem with the requirements of the constitution? A look at other countries’

regulatory bodies reveals the same scenario as Kenya’s and the same questions. The

United Kingdom’s Office of Communications (OfCom) has the jurisdiction to protect

children from programs that are unsuitable for them; portrayal of crime, religion,

impartiality and accuracy; sponsorship and product placement and fairness and policy.

From decided cases, the scenario is the same in the United States of America and this

begs the answer as to why governments grant a player in the media industry the licence to

broadcast and then renege this by regulating the content that they broadcast.

The media owners as the most affected insist that the government should not regulate

them while on the other hand the government insists that the content must be regulated to

protect the consumers’ right to helpful and harmless services. This also comes in the

wake of complaints by consumers that some of the players’ broadcasts border on

obscenities and survive on feeding the consumers with doses of pornography. In the

United States Of America, the country’s regulatory body the Federal Communications

7CCK| What we do:<http://www.cck.go.ke/about/what_we_do.html> at 17

th May 2011

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Commission has had to labour in courts of law as regards regulation of indecency and

obscene materials with courts ruling that censoring of obscene materials allows one to

decide for a nation what is morally acceptable and what is not and that for a material to

be obscene, it must present a danger to the nation or to a class of citizens such as children

where for instance, child pornography is concerned8. For instance in the locus classica

FCC v Pacifica Foundation9 the Supreme Court held that the FCC had the authority to

prohibit such broadcasts during hours when children were likely to be among the

audience.

8 The History of the First Amendment:<http://www.illinoisfirstamendmentcenter.com/history.php> at

13th May 2011

9 , 438, US. 726(1978)

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2.0 THE NEED TO TIGHTEN THE REGULATION OF THE CONTENT

Carl Lotus Becker, a distinguished American famously quipped that “ freedom comes

with responsibility” and in arguing for the regulation of radio and T.V content, media

houses should not use the freedom of expression, speech and media as provided for by

the constitution to infringe on the rights of other people particularly those listening to or

watching their broadcast. In the exercise of their freedom, they should maintain decorum

as regards the content they broadcast as some content may be offensive to particular

classes of people.

2.1 Radio and T.V as the mirror of the society

Radio and T.V are supposed to be agents of dispersal of the society’s best norms and

practices. When they ignore this core function, then there is need to protect the most

vulnerable in society such as children from the adverse effects of such broadcasts .For

instance, many societies regard nudity in public a taboo and portrayal of nude people on

T.V or describing nudity on radio may be offensive as well as harmful to some people

hence the need to regulate the content. In Federal Communications Commission v

Pacifica Foundation10 a father complained to the FCC that his son had heard obscene

material broadcast over an FM station owned by the defendants. The defendants received

a sanction from the FCC in the form of a letter of reprimand for allegedly violating

FCC’s regulation which prohibited broadcasting indecent material. The United States’

10 438, U.S 726 (1978)

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Supreme Court held that “the program complained of was indecent but not obscene” The

court accepted as compelling the government’s interests in shielding children from

patently offensive material and ensuring that unwanted speech does not enter one’s home.

This was the issue in a widely discussed 2003 episode of America’s ABC’s NYPD Blue

where the episode had a scene where a woman’s nude buttocks were shown and this

became an object of public debate. In that episode, actress Charlotte Ross played a police

detective who had recently moved in with another detective. She disrobes as she prepares

to take a shower. After a side of her buttocks and the side of one of her breasts are briefly

shown, the camera puns down and reveals her nude buttocks while she faces the shower.

Then the other detective’s son enters the bathroom and sees the naked woman.

Embarrassment ensues as the child retreats from the room11.

2.2 Failure of T.V and radio to act as mirrors of the society and the need to protect

the vulnerable

Such is the state of most T.V broadcasts where nudity and scenes of light pornography

are depicted as normal. From a psychological perspective, there is need to gag such

broadcasts as they will ultimately shape the way of thinking of children who grow up

thinking that whatever they see on T.V as normal. A child exposed to adult nudity will

grow up knowing that it is okay to expose one’s nudity. This is the same case where a

child is exposed to scenes of violence while still young as research has shown.

11 Associated Press: High Court asked to reinstate FCC indecency

policy:<http://www.google.com/hostednews/ap/article/>at 13th May 2011

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2.3 Child psychology and the influence of radio and T.V broadcasts

According to a research by the American Academy of Paedtriacs published by University

of Michigan Health System, media violence can contribute to aggressive behaviour,

desensitization to violence, nightmares and fears of being harmed. Watching violent

shows is also linked with having less empathy towards others. According to this research,

an average American child will see 200000 violent acts and 16000 murders by age 18.

Many shows glamourize violence and T.V often promotes violent acts as fun and

effective way to get what you want without consequences. Repeated exposure to T.V

violence makes the children less sensitive towards its effects on victims and the human

suffering it causes. Watching violent media can also affect the child’s willingness to help

others and the violent behaviour persists into adulthood12

Television programs and commercials often show violence, alcohol or drug abuse and

sexual content that may not be suitable for children or teenagers. Studies show that T.V

viewing may lead to more aggressive behaviour and less physical activity. There are

commercials for unhealthy foods such as candy, snacks, sugary cereals and drinks. The

commercials for never give information about the foods children should eat and keep

healthy. Children who see violence may not understand that it is bad and that it hurts

people. When the good guys in those programs use violence, the children grow up

knowing it is okay to use force to handle aggression and settle disagreements. Exposure

12 Television(TV) and children: Your Child; University of Michigan Health System-

<http://www.med.umich.edu/your child/topics/tv.htm#brain> at 13th May 2011

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to sexual content or activity on T.V does not usually show the risks and results of early

sexual activity by showing it as normal, fun, exciting and without any risks. The child

thus ends up copying what he or she sees on T.V to feel more grown up.13

2.4 The law as postulated by Bentham and the need to tighten the regulation

Legal utilitarianism as postulated by Jeremy Bentham in his book Introduction to the

Principles of Morals and Legislation lays forth the intention of any law as to encourage

and foster the greatest happiness and reduce or minimize pain. In the book he formulated

the principle of utility, which approves of an action in so far as an action has an overall

tendency to promote the greatest amount of happiness. Happiness is identified with

pleasure and the absence of pain. To work out the overall tendency of an action, Bentham

sketched a, felicific or ‘happiness making’ calculus which takes into account the

intensity, duration, likelihood, extent, etc of pleasures and pains. Thomas Aquinas posited

the same in Summa Theologica saying “…this is the first precept of the law, that good is

to be done and promoted, and evil is to be avoided. All precepts of the natural law are

based on this…” As such, regulation aimed at controlling what is broadcast on T.V and

radio should be aimed at realizing this greatest happiness and good and minimize

unhappiness that the content may cause to the greatest majority of the populace.

The society does not want a future filled with delinquent adults, pregnant and unmarried

teenagers but wants a happy society filled with responsible children and adults. As such,

13 Television and the Family- Kids Growth,

<http://www.kidsgrowth .com/resources_articledetail.cfm?=1965> at 20th May 2011

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the regulation ensures that the interest of happiness of the society is met hence the need

of a stricter law to regulate the content to ensure that that the society is not harmed by the

harmful content T.V or radio may broadcast. Thomas Aquinas quoting St. Augustine in

Summa Theologica posited that the work of the law is to force through habit the bad

habits out of people it is supposed to guide and through habit make them adhere to the

law and change their habits to habits the society conforms to. This works in the same way

as regards the regulation of radio and T.V content. The society is made of weak people,

that is people who will ape what they hear or watch and as such, tight regulation of what

they watch will prevent them from copying bad habits but follow and get accustomed to

the good habits they may copy from content that is suitable for them. This calls for

regulation in relation to time to air certain material on T.V or radio such as the time to air

material that is perceived as adult content such as material having sexual content or use

of strong language. This is what is referred to as watershed and or safe harbour T.V

broadcast.

2.5 The time demarcation: watershed/ safe harbour

The need to enforce watershed/ safe harbour T.V was laid down in FCC v Pacifica

Foundation14 case. This is meant to protect children from harmful T.V or radio

broadcasts by laying down a time schedule they can be watched, that is when the

likelihood of children being the audience is low for instance after ten o’clock at night

when most of them are asleep. Before this time, the media owners are not supposed to air

14 438, U.S 726 (1978)

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content that ias perceived as containing adult material such as sexual content, language or

strong language such one containing swear or curse words. Many countries have adopted

this model of regulation Kenya included. A closer scrutiny of whether this is adhered to

in Kenya reveals the fact that some Kenyan T.V and radio stations do not follow this.

Material that is safe to watch after 10 o’clock at night is broadcast as early as 8 o’clock in

the evening. In some countries such as the United Kingdom, broadcasters must observe

the 2100 hours watershed and also should take into account when school holidays occur

and children are more likely to be watching. The watershed does not apply to radio

broadcasts but these also have to have particular regard to times when children are

particularly likely to be listening which includes school run and breakfast time.15

As seen in the British scenario watershed affects all programs rated as 16+ and is set at

2100 hrs but in Kenyan this does not seem to occur because programs rated 16 are aired

as early as 8 o’clock in the evening. For instance, the trend with most T.V stations is to

air Mexican telenovelas rated as early as 7.30 pm even when the rating for such

telenovelas is 14+ or 16+.

The content of these telenovelas is not the stuff for the average child or teenager or one

can recommend as suitable for children under the age of 14 as most of them are rated.

The programs contain scenes, where the actors deep kiss each other and at times fondle

each other and remember that at a time such as this the children are not asleep and most

families are at the table at such times. This is done because most of the T.V stations in

15 Peter Carey et al. Media Law, Sweet & Maxwell, 4

th Edition, pp 261

13

Kenya want to beat each in terms of viewership and as such are forced to air such

telenovelas to increase viewership and increase their sales in terms of the numerous T.V

commercials aired between the breaks in the telenovelas.

Some radio broadcasts for instance some programs aired by Radio Africa’s Kiss FM

show otherwise as regards the adherence to watershed broadcast. The station’s Rush

Hour which airs from 3.pm to 8.pm at night airs content that should be reserved for

watershed hours. There is use of strong language and at times callers call to tell of their

rompy lifestyles and other sexually oriented material. The same is replicated in the same

company’s Classic 105 FM which airs in the morning a program called Classic Breakfast

presented by one Maina Kageni and Mwalimu King’ang’i where the debates range from

people calling to tell of their rompy lifestyles, their bedroom prowess among other

sexually oriented debates16. Remember this is aired in the morning when the children are

awake or traveling to school. A closer scrutiny of the radio station listened to widely in

matatus reveals that Classic FM has the largest audience meaning children traveling in

these matatus listen to those debates.

What does one expect of a child growing up in such an environment where topics

unsuitable for children are churned out with abandon? As I argued before, such children

will grow up knowing that it is okay to have multiple sexual partners because most of the

programs are about callers boasting about their mipango ya kando (extra-marital affairs)

16 The Nairobi Chronicle: Maina Kageni Talkshow on Dangerous Grounds,

http://nairobichronicle.wordpress.com/2008/06/13/mainakageni-talkshow-on-dangerous-grounds/ at

14th May 2011

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and it is true that children growing up listening to those programs will grow up a

perverted lot and the result will be a future generation filled with paedophiliacs, teenage

mothers and an explosion of cases of sexually transmitted diseases such as HIV/AIDS.

These T.V and radio stations have abdicated their role of disseminating society-relevant

material hence the need to have the government tighten the noose as regards the content

that they should broadcast

2.6 Radio, T.V and war

Radio as a tool of communication realized its greatest use during the World War II when

it was used as a tool of disseminating wartime propaganda. Winston Churchill was able

to marshal the entire English speaking world into his side and calling for the defeat of the

Nazists in Germany and the rest of Europe and the world17. The Nazis used radio as well

to disseminate anti-Jewish propaganda and spread Anti-Semitic bigotry and whipping up

the passions of Germans as a people of superior race for belonging to the Aryan race.

Their Minister of Propaganda Joseph Goebbels called radio ‘the eight great power’ an

allusion to Napoleon Bonaparte’s reference to the press as the seventh great power as was

in the 1789 French Revolution. Goebells initiated a scheme whereby the German

government subsidized the production and sale of cheap radio sets called the

‘volksemfanger’ which made it available in every home. The listeners were bombarded

with speeches and news designed to brainwash the population and the results were ever

17 Old Time Radio- Winston Churchill Speeches & radio broadcasts:

<http://www.archive.org/details/winston_churchill> at 14 May 2011

15

negative. The results were the extermination of 6 million Jewish people across Europe in

what is referred to as the ‘holocaust’18

Most recently, radio was a tool of choice for spreading extremist agenda during the 1994

Rwandan Genocide where a million people were killed in a span of 100 days. The

killings are attributed to the radio broadcasts which were used to drive racial and ethnic

hatred against the Tutsis in Rwanda. Radio Télévision Libre Mille Collines was identified

as the tool that was used by the majority Hutu government during the genocide. The role

the media played was examined in Prosecutor v Ferdinand Nahimana, John- Bosco

Barayagwiza and Hassan Ngeze19 which is better known as the media trial at the

International Criminal Tribunal For Rwanda in Arusha Tanzania. The RTLMC named

individuals who it falsely accused of being plotters and parasites and calling on listeners

to take action against the inkotanyi (infiltrators) and inyenzi (cockroaches) as the Tutsis

were referred to by the Hutus. A call on the radio for listeners to take up arms against the

inkotanyi meant a call to take up arms against the Tutsis. In some instances, RTMLC

named individuals who it falsely accused of being members of The Rwandan Patriotic

Front20 to have them killed. It advised listeners to identify Tutsis by examining their

physical appearance “look at their small noses and break them off” The radio became a

18 10 Most Evil Propaganda Techniques Used by Nazis: <http://brainz.org/10-most-evil-propaganda-

techniques-used-nazis> at 14th

June 2011

19 Case No. ICTR 99-52-T

20 The Rwandan Patriotic Front was the rebel army mainly consisting of Titsis and moderate Hutus that

fought the Hutu majority goverment that was being headed by Juvenal Habriymana at the time of the

Rwandan genocide. It is widely recognized has having successfully stopped the genocide,

<http://www.hrw.org/legacy/reports/1999/rwanda/Geno15-8-03.htm> at 2nd August 11

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powerful force considering that at the time in Rwanda, the ratio of illiterate people was

very high. Radio therefore was the medium with the highest reach. Rwandans and the

interahamwe (The name that was used to identify the Hutu militia) listened to RTLMC

everywhere including at roadblocks during the killings. Messages transmitted by radio

were taken at face value and orders issued during the broadcasts were followed to the

latter. It is estimated that the broadcasts explained an increase in violence that amounted

to 45000 Tutsis deaths about 9% of the total21. The foregoing examples show the

influence radio broadcasts have on the society when it comes to marshalling the society

to a cause even when the cause is an evil one and hence the need to regulate the content

so as to limit instances where hate speech is spread through the radio or television

broadcasts.

2.7 The failure of regulation policies and the need to lay down strict laws

and the need to protect consumer rights

The effects of these radio broadcasts were unprecedented and this may be attributed to

the weak policies that never gave the media a clear guidelines as regards the content to

broadcast. Clearly laid down laws go a great deal in ensuring that decorum is maintained

in terms of what the T.V or radio content is concerned and hence help in averting disaster

that hate speech may cause. In pre-genocide Rwanda, RPF and the government signed a

pact to regulate hate speech but this was not adhered to by the individual stations that

were owned by both parties. It is therefore improbable to say that radio and T.V can self-

21 Yanagizawa David, Propaganda and Conflict: Theory and Evidence from the Rwandan Genocide,

Institute for International Economic Studies, Stockholm University (21st

November , 2009)

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regulate as the Rwandan case showed and therefore a need to have clear-cut policies as

regards the regulation of content broadcast by the media houses. The policies in this case

involve Acts of Parliament and the constitution.

Article 33(2) of the Kenyan constitution provides that:

“Freedom of expression does not extend to propaganda for war, incitement to violence,

hate speech or advocacy to hatred”.

This means that as far as the constitution has provide for freedom of expression, it has

tempered that freedom with a proviso that the right should not be used to whip emotion or

encourage hatred in the country. The right is not an absolute right and in the enjoyment of

this right even in media house, care should be taken to ensure it is used for the benefit of

the whole country and not usage that may lead to unnecessary bloodletting.

Article 24(1) (d) of the Kenyan constitution provides that:

“In the enjoyment of rights and fundamental freedoms by any individual, the person

enjoying the rights and fundamental freedoms should not prejudice the rights and

fundamental freedoms of others”.

As such, the radio and T.V broadcasts in the exercise of the freedoms of media, speech

and expression should seek to foster national unity and encouraging that which is good

for the whole society. They should not use the freedoms accorded for their own benefit

without regard to what the rest of the society thinks but should seek to aid the society at

large.

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The Communications Commission of Kenya is also mandated to protect consumer rights

as encapsulated in article 46 of the Kenyan Constitution. Consumer rights include the

right to goods and services of reasonable quality. Consumers therefore have a locus

standi as provided for by article 22 to petition the High Court to declare their rights where

their feel that the broadcasts are not up to required standards or are broadcasts harmful to

special classes of people such as young children

This is the approach United Kingdom’s OfCom has taken. Section 319 of the

Communications Act of 2003 empowers OfCom to set up standards of contents of radio

and T.V programs. These standards are meant to protect under-18s. For instance, factual

programs such as documentaries must not materially mislead the audience and so serious

is this that OfCom predecessor ITC fined a television company called Carlton

Communication £2 million in 1998 for broadcasting a faked documentary called ‘The

Connection’ which was about Columbian drug cartels22

The regulation also requires that broadcasters must exercise the proper degree of

responsibility with respect to the content of religious programs. The religious views and

beliefs of those belonging to a particular religion must not be subject to abusive

treatment. Religious programs must not seek to promote religious views or beliefs by

stealth, must not seek recruits or improperly exploit any susceptibilities of the audience.

2.8 Regulation of radio and T.V content to foster local talent

22, Peter Carey et al. Media Law, Sweet & Maxwell, 4

th Edition, pp 261

19

The regulation of content by the government also goes to a great extent in promoting

local content. It is prudent for a country to promote the local industry by ruling on the

quota of foreign programmes to be broadcast on the radio and television stations. For

instance, the French regulatory body Conseil Supérieur de L´Audiovisuel (roughly

translated as Supreme Audiovisual Council), has set a quota of foreign content to be

broadcast in a bid to protect and preserve the French language. Adding to the EU policy

wherein 50 per cent of all television programming must be of European origin, the

French government requires that 40 per cent of this 60 per cent be of French origin. In

addition, 35 per cent of songs on radio stations targeting teenagers must be of

francophone origin (which includes French as well as African-French or Arab-French),

while 60 per cent of songs on stations targeting seniors (aged 45 and over) must be of

francophone origin.23. This goes to a great extent in promoting and creating employment

through the airing of local content. When there is such a requirement, the local

broadcasters are required to look for content and in doing so, local shows will have a

market free of competition from the relatively cheaper foreign content.

23Comparing Media Regulation Between France, the USA, Mexico and Ghana, Robert McKenzie

< http://www.juridicas.unam.mx/publica/rev/comlawj/cont/6/arc/arc5.htm> at 14th July

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3.0 AN UN-REGULATED MEDIA: ARE THERE ANY BENEFITS TO

ACCRUE?

3.1 Radio and T.V as agents of development

It is an accepted fact that media especially radio and T.V have played a big role in

furtherance of development and good leadership agenda throughout the world. Unlike

print media which can be confiscated by non-progressive regimes, radio or T.V waves

cannot. They are not limited by physical boundaries and can transcend all regions

regardless of the differences in time, language or colour. Shortwave radio broadcasts are

known to travel unimaginable distances and can be received by any short-wave radio in

the world. With the advent of cable T.V and radio, the freeness of these broadcasts cannot

be unrivalled by print media or by roadside picketing. Because of this, they are the most

relevant type of media that can be used to disseminate information in countries ruled by

despotic leaders and help bring such regimes to an end.

It is notable that in repressive regimes, the freedoms of media, expression and speech are

curtailed so as to keep the citizenry in the dark. The content is highly regulated and as

such that becomes a good recipe for stunted economic growth as is the example of North

Korea. N. Korea borders its sister South Korea in the Korea peninsula which is a middle

income country with majority of the citizens being the middle class which is the direct

opposite of N. Korea.

North Korea is listed as the lowest in the grant of freedom of media, expression and

speech. All media outlets are strictly owned and controlled by the communist

21

government. The content broadcast is directed and controlled by the North Korean

Central News Agency and the broadcasts are entirely dedicated toward political

propaganda and promoting personality cult of Kim Il-Sung and Kim Jong-Il, the

country’s leaders. The media in that country routinely makes false claims and uses

highly-charged rhetoric attacking the Western world, Christianity, the United States of

America, Israel, Japan and South Korea. The radio and television sets sold in North

Korea are preset to receive only the government frequencies and it is a criminal act to

manipulate the sets to receive broadcasts from outside North Korea. Short wave radios

are prohibited. The resultant effect of these strict regulations is agrandissement in

despotism and such a society reeks of underdevelopment because of an informed

citizenry24. The same happens in Myanmar where freedom of expression or speech is not

guaranteed by law. The military junta ruling the country has curtailed every broadcast

that gets to the general public. Broadcasts from BBC and VOA are jammed in the

country25. This has clearly reflected in the countries development as they were rated in

Foreign Policy’s Failed States Index(2010). North Korea is ranked as no. 17 in the failed

states index and Myanmar ranks as no. 1326.

3.2 Radio and T.V as government watchdog

24The state of media freedom in North Korea, http://en.wikipedia.org/wiki/Media_of_North_Korea at

14th August 2011

25http://www.voacap.com/documents/jamming_radio_broadcasting_VKL.pdf at 14th August 2011

26List of failed states by ranking 2011,

http://www.foreignpolicy.com/articles/2010/06/21/2010_failed_states_index_interactive_map_and_ran

kings at 25th August 2011

22

The non-liberalisation of the media in Zimbabwe has led to a situation where private

media cannot actively play its role as the government watchdog for fear of closure or

confiscation of equipment by the government machinery. The result is that there is an

uninformed citizenry ready to serve the regime even when it is clear that the regime’s

agenda has got nothing to show to the country in terms of development27.

3.3 Radio and Ujamaa socialism

In Tanzania, the constant broadcast of Ujamaa policies on Radio Tanzania and constant

broadcast of his socialist oriented speeches may be blamed for that country’s

underdevelopment. Nyerere preached his version of Socialism rooted in traditional

African village life. The fact is that Tanzanian laws allowed this since the Tanzanian

Broadcasting Services Act empowers the Tanzanian Broadcasting Commission with a

wide discretion which includes supervising content28. This means that the radio

broadcasts, the readily available and cheapest mode of broadcasting and reaching the

citizenry, were awash with speeches on Nyerere’s African Socialism

Dworkin argues that “in a just political society, the government must treat its adult

members as responsible moral agents…Morally responsible people insist on making up

their own minds of what is good or bad in life, politics, governance. The government

27 Zimbabwe Media Advocates Push back in Broadcast Liberalisation:

<http://www.voanews.co/zimbabwe/news/zimbabwe -lawmaker-says-No-Near-Term-Broadcasting-

Licenses-121521434.html>

28 Human Rights litigation & the domestication of human rights standards in Sub-Saharan Africa, Ahraj

Casebook Series, Vol. II pp 95

23

insults its people and denies their moral responsibility when it decrees that they cannot

be trusted to head opinions that might persuade them to dangerous or offensive

convictions…”29. What Dworkin is implying here is that the government must let the

citizenry choose what is right for them or that which is not right for them. As such,

regulation of content by the government in its bid to force upon the people its agenda

however harmful and distasteful to the citizens, is morally wrong and an abuse to the

intellect of the citizenry. This may be equated to the frequent broadcasts of Nyerere’s

Socialist speeches as they were more of a slap on the intellect of the Tanzania he was

leading because soon after he retired, the country adopted capitalism. His Rhetoric had

not helped anything but further drive the country onto underdevelopment. The Tanzanian

government’s effort to impose the ideas onto people’s minds through constant broadcast

of “wosia wa baba”30 as the speeches were called did not bear much fruit as the

Tanzanians could make their own decisions as regards what is right for them as they are

their own free moral agents

3.4 Radio and television and transparency

A non-regulated airing of broadcast is good for transparency in the manner that the

government conducts its business and therefore helps in unraveling unscrupulous deals in

regard to taxpayers’ money. Secrecy is endemic in Kenya that one may not be wrong to

say that Kenya and Kenyans are two big secret societies. This earned the government the

nickname siri kali which is a corruption of serikali because of the secrecy surrounding

29 Ronald Dworkin, Freedom’s Law(1996), pp200

30 Swahili for ‘A father’s advice’

24

most of its operations. People are secretive and there is a clear line between public and

private affairs. Most people do not want anyone to know what happens in their private

lives and in their personal relationships. One interesting observation is that there is a lot

of secrecy in matters relating to money and wealth. Money matters are discussed in

private and in secrecy. This creates a shroud of secrecy around money and resources.

This culture has crept into the core of government operations.

Many government deals are made in secret. The result of this is that it gives an impetus to

unethical practices and the result is the pilfering of public coffers by corrupt government

officials. A non-regulated media era in Kenya has helped in curbing corrupt deals

because in radio and T.V broadcasts people have been allowed to discuss matters to do

with the accountability of the government by publicly naming leaders suspected in

pilfering public resources. Talk shows freely discuss corrupt leaders and advocate for

their removal from office31 For instance in 2006, the media in Kenya was able to marshall

the country in calling for the resignation of George Saitoti and Kiraitu from office for

their involvement in Goldenberg and Anglo Leasing corruption scandals respectively.

The same happened in the USA when Richard Nixon was forced out of office over the

Watergate scandal32

31Kiraitu Murungi was forced to resign after Kenyan media replayed a dossier released by John Githongo

on BBC’s Hard Talk in 2006.The dossier included audio tapes where Kiraitu urges Githongo to go slow on

sleaze.The dossier is available at <http://radical8.com/2011/02/28/kenya-the-githongo-dossier-and-the-

anglo-leasing-scandal-original-copy-of-the-full-report/> and the Hard Talk interview video is available at

<http://news.bbc.co.uk/2/hi/africa/4697612.stm> at 29th August 2011

32The Watergate Scandal, <http://www.u-s-history.com/pages/h1791.htm>l at 14 August 2011

25

4.0 CONCLUSION

When the content is not regulated, informative programs easily reach the entire

population and hence enables the wananchi to get information that may help improve

their quality of life. It is not okay at all for a government to limit information in that it

curtails broadcast that it sees as a threat to its existence. A socialist republic should let

content meant for a capitalist society reach its citizens so that they can choose for

themselves the aspects of capitalism that can be helpful to them. Free trade of ideas even

when they are conflicting helps foster a diverse society. When the diversity is harnessed

for the good of everyone, what follows is a miracle in terms of development. It is very

difficult to have a homogenous society and that people can not affirm the same tastes and

therefore the regulation of content by the government in its bid to create such a society is

an effort in vain. The government should allow every citizen to freely express himself or

herself and that in itself will reduce the tension that is related to regulation of content and

lack of space to express themselves.

5.0 RECOMMENDATIONS

There should be a balance as regards the regulation of the content that is broadcast in

radio and T.V stations vis à vis the freedom that should be granted to the media houses

broadcasting the content. This is because when there is a balance; both parties will know

when to intervene when there is a violation of the laid down regulations. The Media

Council of Kenya has formed an arbitration tribunal called the Complaints Commission

of the Media Council that is charged with the self regulation of the content that is

broadcast in the radio and T.V stations that have subscribed to its membership. This is an

26

effort to rein on its subscribers who do not tow the line when it comes to broadcasting

content that is acceptable in the context of the Kenyan society. For instance in March

2011, the commission delivered a key judgement in a case between former security

minister Dr. Chris Murungaru and the Nation Television. Dr. Murungaru had complained

that a news item broadcast by Nation Television on the eveningof 8th of February 2009

linking him to Anglo- Leasing Scandalwas innacurate, unfair and biased. The

Commission ruled in favour of the complainant and directed the media house to

apologize to him. The Nation Media group made a formal apology on 22nd of March 2011

during its 9 o’clock news bulletin. The Commission is is composed of five members that

are seasoned lawyers and communications professionals33

Such a cause as the one spearheaded by the Media Council of Kenya helps reduce the

government’s involvement when it comes to regulating the content that the media houses

broadcast to consumers. This will thus reduce instances where the government’s

highhandedness is used to rein in on wayward broadcasters. In the end it is true to accept

that freedoms of expression and speech are essential to survival of a democratic nation

and so the regulation of radio and T.V content should not hinder the enjoyment of these

rights. But in the end, the media houses and their editorial heads should not use the

freedom granted to them wrongly but should exercise prudence and the result will be a

flawless enjoyment of the aforementioned freedoms. A matter that is of public interest

should remain so and the freedom should not be used to settle scores. Matters considered

33 Council Heightens Arbitration Role, 26

th May 2011

<http://www.mediacouncil.or.ke/index.php?option=com_content&view=article&id=92&catid+1&Itemid=

78> at 30th

August 2011

27

to be of public interest may include exposing corruption, examining the conduct of state-

funded bodies, matters of constitutional importance, rooting out crime and of course

keeping a watchful eye out for potential abuses of trust or office by politicians. When the

broadcasts are of such nature, then the state should not interfere with such broadcasts as

they serve the wellbeing of a nation.

To create a balance between state regulation and self-regulation, the media in Kenya

should set up a body where complaints against the wayward broadcasting houses can be

channeled to such as the National Association of Broadcasters in the United States and

the Press Complaints Commission in the United Kingdom . For instance, the Press

Complaints Commission in the United Kingdom is an established body that is charged

with receiving the complaints against the media houses that go against the set standards

contained in its Editors’ Codebook. The body has members drawn from the media

industry itself and the rest are lay members. The commission oversees the system and

adjudicates on the complaints it receives. The codebook embraces a balancing act

between respecting the rights of the public to know and the need to protect other

concerned parties34

Such a body will help the radio and T.V broadcasts to self-regulate as failure to do so

can be adjudicated from within the industry itself and not the government. This is a body

similar to the Advocates Complaints Commission where the complaints against

unscrupulous lawyers are presented before a body composed of lawyers and the matter

34 Hadwin and Bloy, Sweet & Maxwell, Law and the Media, p.207

28

can be solved, if possible, before it is taken to the courts. Considering that there is no

professional body that governs the conduct of journalists as is the case with lawyers,

doctors, dentists, the complaints body should have in its charter the power to suspend a

broadcasting station if it does not tow the line. If the radio or T.V station is not satisfied

with the decision, then the right to appeal can be granted and the station can access the

courts of law. This thus can be the only situation where the state can interfere with the

media houses.

There should be tighter regulation of advertisements broadcast on T.V and radio. This is

because advertisement is the backbone of the media industry and at times the editorial

boards may be lax in enforcing a filtration of which adverts to run and the ones not to run

on their daily broadcast. The United Kingdom’s ITC advertising Standards Code applies

to all British T.V stations regulated by Ofcom when airing broadcasts. The general

principles running through the code are that advertising should be legal, decent, honest

and truthful35. The adverts should follow the minutage which is the total number of

advertising minutes allowed during a prescribed segment of time which is usually an hour

in the United States of America. There should be a bumper, which is a momentary

graphic image usually the logo of the T.V station, in order to create clear separation

between the two types of content36. Such a demarcation helps the audience to know when

the content being broadcast in the station as just a commercial gimmick and when the

35 Peter Carey & Jo Sanders, Media law (Third Edition), p.254

36Comparing Media Regulation Between France, the USA, Mexico and Ghana, Robert McKenzie <

http://www.juridicas.unam.mx/publica/rev/comlawj/cont/6/arc/arc5.htm> at 30th August 2011

29

content is to be real. This therefore plays a very important role in protecting the audience

when it is that of children to know what is real and what is unreal.