Wangusi picks new fight with media over content rules

The Communications Authority of Kenya (CA) has opened a fresh battlefront against electronic media operators with the publication of new rules that empower it to regulate media content.

The proposed regulations, contained in a Programming Code for free-to-air radio and television services that the CA released on Monday, give the regulator powers to revoke the licences of radio and television stations that air adult-rated content between 5am and 10pm.

The rules are in total disregard to Article 34 of the Constitution that restricts the CA’s role to regulation of airwaves “and other forms of signal distribution”.

Francis Wangusi, the CA director-general, said the Programming Code is aimed at preventing the airing of material that is unsuitable for children and minors.

“Save for educational programmes, which may require graphic details, no broadcasting station shall air programmes including interactive call-ins or discussion sessions whose content is suitable for adult-only audiences during the watershed period,” the proposed programming code says. 

Mr Wangusi said that once the proposed code comes into force, no radio station will be allowed to broadcast or talk about sex during the watershed hours.

“Some of the FM stations are notorious for this to the extent of breaking all the rules in the book,” he said. 

Regulation of media content is recognised as the province of the Media Council of Kenya (MCK) as defined in the Constitution and an Act of Parliament.

Harun Mwangi, the media council chief executive, said the CA was acting out of its mandate and in disregard of global best practices.

“The regulator should most importantly have acted to ensure that the programming code is consistent with the Constitution,” Dr Mwangi said, adding that regulation of content is not under the purview of the CA.

Article 34 of the Constitution guarantees freedom of the media from government control — the only limitations being the spreading of propaganda war, incitement to violence, hate speech or advocacy of hatred that constitutes ethnic incitement to cause harm or based on ground of discrimination.

Section 2 of the same Article expressly bars the State from exercising control over or interference with any person engaged in broadcasting or circulation of any publication or from penalising any person for their opinion, view or the content of any broadcast, publication or dissemination.

Dr Mwangi said some operators were taking advantage of a lack of a code of conduct for broadcasters to push the boundaries of ethical programming with lurid depiction of sex and violence, even as he insisted that the MCK is the body mandated to regulate print and electronic media content.

“The global best practice demands that the government or regulators only have an oversight role as far as regulating the professionals and content is concerned. Their emphasis should instead be on regulating hardware and licensing,” he said. 

The MCK is a statutory body established by the Media Council Act to regulate the media content, the conduct and discipline of print and electronic journalists.

Mr Wangusi, however, insisted that the CA had taken into account the objectives of the Act and fundamental values, rights and freedoms enshrined in the Constitution, adding that the code will only apply to broadcasters who are not members of any regulatory body.

“This code will not apply where a broadcaster is a member of a body which has proved to the satisfaction of the authority that its members subscribe and adhere to a programming code enforced by that body by means of its own mechanisms and such programming code and mechanisms have been filed with and accepted by the authority,” he said.

Mr Wangusi said the CA intends to make the programming code part of the new broadcasting licensing conditions as outlined in the Kenya Information and Communication (Broadcasting) Regulation, 2009.

The proposed regulations have been published on the CA’s website for the public and interested parties to review and submit comments by May 8, 2015.

The CA’s foray deep into the content regulation territory is further betrayed by its proposal that the number of hours for children programmes be increased to five hours from the current three both for radio and television.

It is currently not mandatory for broadcasting stations to dedicate any amount of time to children’s content, a situation that has seen most of the stations airing such programmes only on Saturdays.

The number of television and radio stations is expected to increase with the migration to the digital broadcasting platform and there has been concern over the quality of content that will be coming out of the channels.

The CA also wants children’s programmes to be aired in the morning and afternoon when children are still active and that broadcasters acting in violation of the code face severe penalties, including revocation of their licences.

In a move that takes the CA close to becoming a morality police force, Mr Wangusi is proposing that children’s programmes avoid scenes depicting consumption of liquor or tobacco products ‘unless an educational point is being made and in very exceptional cases if the dramatic context makes it absolutely necessary’.

“The new code aims to ensure that programmes broadcast between 5am and 10pm are suitable for family audiences and that the transition from family-oriented to a more adult programming after the watershed period is gradual,” Mr Wangusi said.

The CA is also moving into the unchartered waters of advertising, with a rule that restricts marketing content to not more than seven minutes in a 30-minute programme. Insertion of more than two advertising breaks in a 30-minute programme will also be outlawed. 

The proposed rules also seek to bar broadcasters from airing advertisements during live screening or broadcasts of national holiday ceremonies, parliamentary proceedings, and the State of the Nation address.