Media Council Act

Section 1. Short title Section This Act may be cited as the Media Council Act.

Section 2. Interpretation Section In this Act, unless the context otherwise requires— "Cabinet Secretary" means the Cabinet Secretary responsible for matters relating to the media; "code of conduct" means the code of conduct for journalists and media enterprises provided under section 45 and set out in the Second Schedule; "Commission" means the Complaints Commission established under section 27 ; "Council" means the Media Council of Kenya established under section 5 ; "Court" means the High Court established under Article 165(1) of the Constitution; "foreign journalist" means any journalist who is not a citizen of Kenya and accredited as such under this Act; "journalism" means the collecting, writing, editing and presenting of news or news articles in newspapers and magazines, radio and television broadcasts, in the internet or any other manner as may be prescribed; "journalist" means any person who is recognised as such by the Council upon fulfilment of a criteria set by the Council; "media" means the production of electronic and print media for circulation to the public, but does not include book publishing; "media enterprise" means an organization whose business involves the co...

Section 3. Guiding principles Section 3(1) In exercise of the powers and discharge of functions under this Act, the Cabinet Secretary, the Council and committees established under this Act shall be guided by values and principles enshrined in the Constitution. Section 3(2)(a) reflect the interests of all sections of society; Section 3(2)(b) be accurate and fair; Section 3(2)(c) be accountable and transparent; Section 3(2)(d) respect the personal dignity and privacy of others; Section 3(2)(e) demonstrate professionalism and respect for the rights of others; and Section 3(2)(f) be guided by the national values and principles of governance set out under Article 10 of the Constitution.

Section 4. Application of the Act Section media enterprises;

Section 5. Establishment of the Media Council Section 5(1) There is established a council to be known as the Media Council of Kenya. Section 5(2)(a) suing and being sued; Section 5(2)(b) purchasing or otherwise acquiring, holding, charging and disposing of moveable and immovable property; Section 5(2)(c) entering into contracts; and Section 5(2)(d) doing or performing all other things or acts necessary for the proper performance of its functions under this Act, which may lawfully be done or performed by a body corporate. Section 5(3) The headquarters of the Council shall be in Nairobi. Section 5(4) The Council may establish such offices as it considers necessary to undertake its functions.

Section 6. Functions of the Council Section 6(1)(a) promote and protect the freedom and independence of the media; Section 6(1)(b) prescribe standards of journalists, media practitioners and media enterprises; Section 6(1)(c) ensure the protection of the rights and privileges of journalists in the performance of their duties; Section 6(1)(d) promote and enhance ethical and professional standards amongst journalists and media enterprises; Section 6(1)(e) advise the government or the relevant regulatory authority on matters relating to professional, education and the training of journalists and other media practitioners; Section 6(1)(f) set standards, in consultation with the relevant training institutions, for professional education and training of journalists; Section 6(1)(g) develop and regulate ethical and disciplinary standards for journalist, media practitioners and media enterprises; Section 6(1)(h) accredit journalists and foreign journalists by certifying their competence, authority or credibility against official standards based on the quality and training of journalists in Kenya including the maintaining a register of journalists, media enterprises and such other related r...

Section 7. Composition of the Council Section 7(1)(a) a chairperson appointed in accordance with this section; Section 7(1)(b) one person nominated by the Cabinet Secretary; Section 7(1)(c) seven other members appointed in accordance with this section. Section 7(2)(a) by notice in the Gazette and in at least two newspapers of national circulation, declare vacancies in the Council, and invite applications from qualified persons; and Section 7(2)(b) convene a selection panel for the purpose of selecting suitable candidates for appointment as the chairperson or members of the Council. Section 7(3)(a) Kenya Union of Journalists; Section 7(3)(b) Media Owners Association; Section 7(3)(c) Kenya Editor’s Guild; Section 7(3)(d) Law Society of Kenya; Section 7(3)(e) Kenya Correspondents Association; Section 7(3)(f) Public Relations Society of Kenya; Section 7(3)(g) National Gender and Equality Commission; Section 7(3)(h) Association of Professional Societies in East Africa; Section 7(3)(i) Consumers Federation of Kenya; Section 7(3)(j) the Ministry responsible for matters relating to media; Section 7(3)(k) Kenya News Agency; and Section 7(3)(l) two persons nominated by schools of journalism...

Section 8. Qualification for appointment as chairperson or member of the Council Section 8(1)(a) is a citizen of Kenya; Section 8(1)(b) holds a degree from a university recognized in Kenya; Section 8(1)(c) law; Section 8(1)(c)(i) law; Section 8(1)(c)(ii) journalism; Section 8(1)(c)(iii) finance; Section 8(1)(c)(iv) gender and human rights; Section 8(1)(c)(v) performing arts; Section 8(1)(c)(vi) advertising; Section 8(1)(c)(vii) public relations; Section 8(1)(c)(viii) religious studies; Section 8(1)(c)(ix) communication; Section 8(1)(c)(x) humanities and social sciences; or Section 8(1)(c)(xi) information technology; Section 8(1)(d) meets the requirements of Chapter Six of the Constitution; and Section 8(1)(e) has had a distinguished career in their respective fields. Section 8(2)(a) is a member of Parliament or county assembly; Section 8(2)(b) is an official of a governing body of a political party; Section 8(2)(c) has at any time within the preceding five years, held a political office; Section 8(2)(d) is an undischarged bankrupt; Section 8(2)(e) has been convicted of a felony; Section 8(2)(f) has benefitted from, or facilitated an unlawful or irregular allocation, acquisition or...

Section 9. Committees of the Council Section 9(1) The Council may establish such committees as may be necessary for the better carrying out of their function. Section 9(2) The Council may co-opt such persons whose knowledge and expertise may be for the Council to undertake its functions.

Section 10. Conduct of business Section The business and affairs of the Council shall be conducted in accordance with the First Schedule.

Section 11. Independence of the Council Section The Council shall be independent of control by government, political or commercial interests.

Section 12. Tenure and terms of office members of the council Section 12(1) The chairperson and members of the Council shall hold office for a period of three years, and shall be eligible for re-appointment for a further and final term of three years. Section 12(2) The chairperson and members of the council shall serve the Council on a part-time basis.

Section 13. Vacancy in the office of the Council Section dies;

Section 14. Removal from office Section 14(1)(a) violation of the Constitution or any other written law, including contravention of Chapter Six of the Constitution; Section 14(1)(b) gross misconduct; Section 14(1)(c) physical or mental incapacity that leads to inability to perform the functions of office; Section 14(1)(d) incompetence or neglect of duty; Section 14(1)(e) bankruptcy; Section 14(1)(f) absence from three consecutive meetings of the Council without justifiable cause; Section 14(1)(g) if the chairperson or a member becomes a director of any media enterprise or holds shares or has any other interest in a corporation, partnership or other body, directly or through another person, if holding those shares or having that interest would result in a conflict of interest with the officer’s official duties; or Section 14(1)(h) if the chairperson or member is convicted of a criminal offence and sentence to imprisonment for a period of more than six months without the option of a fine. Section 14(2) A person desiring the removal of the chairperson or a member of the Council on any ground specified in subsection (1) may present a petition, in writing, to the National Assembly setti...

Section 15. Filling of vacancy Section Where a vacancy occurs in the membership of the Council under section 13 or 14, the appointment procedure provided for under this Act shall apply.

Section 16. Allowances of the chairperson and members of the Council Section The chairperson and members of the Council shall be paid such allowances as the Salaries and Remuneration Commission shall determine.

Section 17. Appointment of the secretary Section 17(1) There shall be a secretary to the Council who shall be competitively recruited and appointed by the Council. Section 17(2)(a) is a citizen of Kenya; Section 17(2)(b) holds a degree from a university recognized in Kenya; Section 17(2)(c) has had at least ten years proven experience at management level; Section 17(2)(d) has extensive experience in public administration; and Section 17(2)(e) meets the requirements of Chapter Six of the Constitution. Section 17(3)(a) the day-to-day management of the affairs of the Council; Section 17(3)(b) the maintenance of efficiency and discipline by all staff of the Council; Section 17(3)(c) the management of the budget of the Council; Section 17(3)(d) ensuring that funds of the Council are properly expended and accounted for; Section 17(3)(e) maintaining such records of the Council as the Council may, from time to time, require; and Section 17(3)(f) the performance of such other duties as the Council may, from time to time, assign. Section 17(4) The secretary shall be an ex officio member of the Council. Section 17(5) The secretary shall hold office for a term of five years and shall be eligib...

Section 18. Removal of Secretary Section 18(1)(a) inability to perform the functions of the office of secretary arising out of physical or mental incapacity; Section 18(1)(b) gross misconduct or misbehaviour; Section 18(1)(c) incompetence or neglect of duty; Section 18(1)(d) violation of the Constitution; or Section 18(1)(e) any other ground that would justify removal from office under the terms and conditions of service. Section 18(2)(a) sufficient notice of the allegations made against him or her; and Section 18(2)(b) an opportunity to present his or her defence against the allegations.

Section 19. Delegation by the Council Section 19(1) The Council may, by resolution generally or in any particular case, delegate in writing, to a committee or any officer, member of staff or agent of the Council, the exercise of any of the powers or the performance of any of the functions or duties of the Council under this Act. Section 19(2)(a) shall be subject to any conditions as the Council may impose; Section 19(2)(b) shall not divest the Council of the responsibility concerning the exercise of the powers or the performance of the duty delegated; and Section 19(2)(c) may be withdrawn, and any decision made by the person to whom the delegation is made may be withdrawn or varied by the Council.

Section 20. Staff of the Council Section 20(1) The Council may competitively appoint such officers and other staff of the Council as may be necessary for the proper discharge of its functions under this Act or any other written law, upon such terms and conditions of service as the Council may determine. Section 20(2) In the appointment of the staff of the Council referred to under subsection (1), the Council shall afford equal opportunity for appointment of men and women, members of all ethnic groups and persons with disabilities.

Section 21. Seal of the Council Section 21(1) The common seal of the Council shall be kept in such custody as the Council shall direct and shall not be used except on the authority of the Council. Section 21(2) The common seal of the Council when affixed to a document and duly authenticated shall be judicially and officially noticed and unless the contrary is proved, any necessary order or authorization of the Council under this Act shall be presumed to have been duly given.

Section 22. Protection of the Council from liability Section An action shall not lie against the Council or any of its officers or other persons appointed or authorized to perform any function under this Act on behalf of or in respect of anything done or omitted to be done by them in good faith in the exercise of or performance of any power, authority or duty conferred or imposed by them under this Act.

Section 23. Funds of the Council Section such monies as may be allocated to the Council by the National Assembly;

Section 24. Financial year Section The financial year of the Council shall be the period of twelve months ending on the thirtieth of June in each year.

Section 25. Annual estimates Section 25(1) At least three months before the commencement of each financial year, the Council shall cause to be prepared estimates of the revenue and expenditure of the Council for that financial year. Section 25(2)(a) payment of salaries, allowances and other charges in respect of the staff of the Council; Section 25(2)(b) payment of pensions, gratuities and other charges in respect of staff of the Council; Section 25(2)(c) proper maintenance of the buildings and grounds of the Council; Section 25(2)(d) maintenance, repair and replacement of the equipment and other property of the Council; Section 25(2)(e) payment of allowances of the members of the Council; and Section 25(2)(f) creation of such reserve funds to meet future or contingent liabilities in respect of retirement benefits, insurance, replacement of buildings or equipment, or in respect of such other matters as the Council may consider.

Section 26. Accounts and audit Section 26(1) The Council shall cause to be kept proper books and other records of accounts of the income, expenditure, assets and liabilities of the Council. Section 26(2)(a) a statement of income and expenditure during that financial year; and Section 26(2)(b) a statement of the assets and liabilities of the Council as at the last day of that financial year. Section 26(3) The audited accounts of the Council shall be published in at least two daily newspapers of national circulation

Section 27. Establishment of the Complaints Commission Section 27(1) There is established a Complaints Commission which shall consist of seven members appointed in accordance with this section. Section 27(2) The provisions of section 7 (2), (3), (4), (5), (6), (7) and (8) shall apply mutatis mutandis to the appointment of members of the Commission. Section 27(3) After carrying out interviews, the selection panel shall select one person qualified to be appointed as chairperson and six persons qualified to be appointed as members of the Commission, and forward the names to the Cabinet Secretary. Section 27(4) The Cabinet Secretary shall, within seven days of receipt of the names, by notice in the Gazette , appoint a chairperson and six members of the Commission. Section 27(5) The Cabinet Secretary may, in writing, reject any nomination on reasonable grounds whereafter the Cabinet Secretary shall communicate the decision to the selection panel. Section 27(6) Upon receipt of the notice of rejection under subsection (5), the selection panel shall select another person from the list of shortlisted applicants and submit his or her name to the Cabinet Secretary for appointment.

Section 28. Membership of the Complaints Commission Section 28(1)(a) a chairperson, who shall be a person who holds or has held a judicial office in Kenya or who is an advocate of the High Court of Kenya of not less than ten years standing; and Section 28(1)(b) journalism; Section 28(1)(b)(i) journalism; Section 28(1)(b)(ii) media policy and law; Section 28(1)(b)(iii) media regulation; Section 28(1)(b)(iv) business practice and finance; Section 28(1)(b)(v) the performing arts or entertainment; Section 28(1)(b)(vi) advertising practice; or Section 28(1)(b)(vii) related social sciences. Section 28(2) The members of the Complaints Commission shall, at their first meeting, elect a vice-chairperson of opposite gender from amongst themselves.

Section 29. Appointments to the Complaints Commission Section 29(1) The appointments to the Complaints Commission shall be done in a fair, transparent and competitive manner based on merit, suitability and competence. Section 29(2) In selecting persons for appointment as chairperson and members of the Commission, the selection panel shall ensure that equal opportunities are accorded to persons with disability and that not more than two-thirds of the members of the Commission are of the same gender. Section 29(3) The names of persons appointed as members of the Commission shall be published in the Gazette , and they shall before assuming office, take an oath or solemn affirmation before a judge of the High Court. Section 29(4) The members of the Commission shall hold office for a period of three years and shall be eligible for re-appointment subject to a maximum of two terms. Section 29(5) A person shall cease to be a member of the Commission only in terms of section 13 (1) of this Act. Section 29(6) Whenever a vacancy occurs in the Commission, the Commission shall notify the Cabinet Secretary at once, who shall, as soon as reasonably practical, initiate the process of filling the v...

Section 30. Independence of the Complaints Commission Section In performing its functions or exercising its powers, the Complaints Commission shall be independent in its operations and shall be guided by the provisions of Article 159 of the Constitution.

Section 31. Functions of the Complaints Commission Section mediate or adjudicate in disputes between the government and the media and between the public and the media and intra media on ethical issues;

Section 32. Powers of the Commission in discharge of functions Section establish and maintain an internal mechanism for the resolution of disputes;

Section 33. Powers of the Complaints Commission Section 33(1)(a) give to the Complaints Commission reasonable assistance in the investigation of a complaint made under this Act; and Section 33(1)(b) appear before the Complaints Commission for examination concerning matters relevant to the investigation of any complaint made under this Act. Section 33(2) The Commission shall not be bound by the rules of evidence as set out in the Evidence Act (Cap. 80). Section 33(3) Except as expressly provided for in this Act or any regulations made pursuant to this Act, the Complaints Commission shall regulate its own procedure.

Section 34. Complaints Section 34(1)(a) any publication by or conduct of a journalist or media enterprise in relation to this Act; or Section 34(1)(b) anything done against a journalist or media enterprise that limits or interferes with the constitutional freedom of expression of such journalist or media enterprise, Section 34(2)(a) orally, either in person or by any form of electronic communication; or Section 34(2)(b) in writing, given to the Registrar of the Complaints Commission setting out the grounds for the complaint, nature of the injury or damage suffered and the remedy sought. Section 34(3) Where complaints are oral, the Commission may require them to be reduced in writing within seven days, unless it is satisfied there are good reasons for not doing so, Section 34(4)(a) the complainant’s name and address; and Section 34(4)(b) other information relating to the complainant’s identity that the Commission reasonably requires. Section 34(5)(a) keep information provided by a complainant confidential if there are special circumstances or the Commission considers it is in the complainant’s interests to do so; or Section 34(5)(b) accept an anonymous complaint concerning an issue...

Section 35. Procedure upon complaint Section 35(1) Upon receipt of a complaint, the Complaint Commission shall notify, in writing, the party against whom the complaint has been made, within fourteen days of receipt of the complaint, stating the nature of the complaint, the breach, act or omission complained of and the date on which the matter shall be considered by the Commission. Section 35(2) The notice referred to in subsection (1) shall require the person against whom the complaint is made to respond to the complaint in writing or appear before it at the hearing of the complaint. Section 35(3) After considering each party’s submissions, the Commission shall then conduct a preliminary assessment to determine the admissibility or otherwise of the complaints lodged within fourteen days. Section 35(4) The Complaints Commission or any of its panels may, after conducting a preliminary assessment of a complaint, and being of the opinion that the complaint is devoid of merit or substance, dismiss such complaint and give reasons thereto. Section 35(5) A party may within fourteen days from the date of dismissal, apply for review or variation of the Commission’s decision under subsection...

Section 36. Mediation of disputes Section 36(1) The chairperson of the Complaints Commission may appoint one of the members of the Commission as a mediator, to attempt to facilitate an early voluntary settlement of the dispute between the parties to the dispute. Section 36(2) The mediation process shall be voluntary and shall be conducted in accordance with the rules made by the Commission under this Act. Section 36(3)(a) private and confidential; and Section 36(3)(b) conducted on a without prejudice basis. Section 36(4) No person may refer to anything said at the proceedings during any subsequent proceedings, unless the parties agree in writing. Section 36(5) Upon satisfactory determination of a mediation meeting, the mediator shall cause to be signed by both parties a certificate signifying acceptance of the decision which shall be adopted as a decision of the parties in the dispute. Section 36(6) No person, including the member who acted as mediator, may be called as a witness during subsequent proceedings in the Commission or in any court to give evidence about what transpired during the previous mediation meetings. Section 36(7)(a) the role and responsibilities of the mediator...

Section 37. Hearing of disputes Section 37(1) Where the mediation fails or the parties or either of them objects to any mediation efforts, the Commission shall set down the complaint for determination and issue a date on which the matter shall be determined by the Complaints Commission after a full hearing. Section 37(2) The chairperson of the Complaints Commission may establish hearing panels each consisting of three members of the Commission to deal with, hear and determine the Complaints admitted for hearing. Section 37(3) The panels established under subsection (1) shall exercise all the powers and shall perform all the duties and functions of the Complaints Commission in relation to any matter before the panel. Section 37(4) Members of a panel established under subsection (1) may, if necessary, consult with other members of the Complaints Commission for purposes of ensuring consistency of decisions of the Commission. Section 37(5) The Complaints Commission shall, having heard the matter the subject of the complaint, make a report, issue any decision as it deems appropriate and give directions in connection with the complaint, and shall publish its findings if it considers it i...

Section 38. Decisions of the Complaints Commission Section 38(1)(a) order the offending party to publish an apology and correction in such manner as the Commission may specify; Section 38(1)(b) order the return, repair, or replacement of any equipment or material belonging to a journalist confiscated or destroyed; Section 38(1)(c) make any directive and declaration on freedom of expression; Section 38(1)(d) issue a public reprimand of the journalist or media enterprise involved; Section 38(1)(e) order the offending editor of the broadcast, print or on-line material to publish the Commission’s decision in such manner as specified by the Commission; Section 38(1)(f) impose a fine of not more than five hundred thousand shillings on any respondent media enterprise and a fine of not more than one hundred thousand shillings, on any journalist, adjudged to have violated the Act or Code of Conduct, where upon such a fine shall be a debt due to the Council and recoverable as such; Section 38(1)(g) in its reasons for its findings, record a criticism of the conduct of the complainant in relation of the Complaint, where such criticism, is in its view, warranted; Section 38(1)(h) recommend to t...

Section 39. Allowances of the chairperson and members of the Complaints Commission Section The chairperson and members of the Complaints Commission shall be paid such allowances as the Salaries and Remuneration Commission may determine.

Section 40. Protection of the Complaints Commission from liability Section be free from any criminal or civil liability for anything done or said in his capacity as a member of the Commission; and

Section 41. Record of proceedings Section The Complaints Commission shall keep or cause to be kept a record of all proceedings of the Complaints Commission.

Section 42. Appeals Section 42(1) A person aggrieved by a decision of the Council may appeal to the Complaints Commission against that decision in such manner as may be prescribed. Section 42(2) A party aggrieved by the decision of the Complaints Commission may, after thirty days after the Commission has made its decision, apply to the High Court for such orders as the court may, in exercise of its jurisdiction under Article 165(6) of the Constitution, think just.

Section 43. Decisions of the Commission to be final Section Where no application is made to challenge the decision of the Commission within thirty days of the date of the decision, the decision of the Commission shall be final and binding to the parties.

Section 44. Procedures of the Complaints Commission Section Except as expressly provided in this Act or any regulations made thereunder, the Complaints Commission shall have power to regulate its own procedure.

Section 45. Code of conduct Section 45(1) The journalists and media enterprises shall keep and maintain professional and ethical standards and shall, at all times, comply with the code of conduct set out in the Second Schedule. Section 45(2) The Cabinet Secretary on recommendation of the Council may, from time to time, amend the Second Schedule.

Section 46. Accreditation of journalists Section 46(1) The Council shall consider and approve applications by foreign journalists for accreditation to practice in Kenya and may charge such fees as the Cabinet Secretary in consultation with the Council, may by notice in the Gazette prescribe. Section 46(2) The accreditation shall be valid for a renewable period of twelve months. Section 46(3) In considering an application for accreditation of a foreign journalist in Kenya, the Council shall ensure that such accreditation does not prejudice the employment opportunities of qualified and registered local journalists or other media practitioners.

Section 47. Unaccredited institutions Section 47(1) An educational institution that is not accredited under any written law or that has not been granted a charter shall not offer or teach courses in journalism. Section 47(2) An institution that offers or teaches courses in journalism contrary to subsection (1) commits an offence and the proprietor, director or manager of such institution shall be liable, on conviction, to a fine not exceeding twenty-five thousand shillings or to imprisonment for a term not exceeding two years, or both.

Section 48. Offences Section 48(1)(a) without lawful justification fails or refuses to comply with the direction of the Council; Section 48(1)(b) obstructs or hinders the Council in the exercise of its powers under this Act; Section 48(1)(c) furnishes information or makes a statement to the Council which he or she knows to be false or misleading in any material particular; or Section 48(1)(d) when appearing before the Council or any of its committees, for examination, makes a statement which he knows to be false or misleading in any material particular, Section 48(2) A person convicted of an offence under this section shall be liable to a fine not exceeding two hundred thousand shillings, or to imprisonment for a term not exceeding six months, or both. Section 48(3) A person who is convicted of an offence under subsection (2) shall be liable, for any subsequent offence, to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding two years, or to both. Section 48(4) Where any offence mention in subsection (1) is committed by a body corporate, the body corporate, every principal officer or staff of the corporation directly responsible for the acts or om...

Section 49. General penalty Section 49(1) A person who contravenes any provision of this Act or regulations made thereunder for which no penalty is specifically provided for shall be liable, upon conviction, to a fine not exceeding two hundred thousand shillings, or to imprisonment for a term not exceeding six months, or both. Section 49(2) Where an offence under subsection (1) is committed by a body corporate, the corporate body and every principal officer or staff of the corporation directly responsible for the acts or omissions constituting the offence shall be liable to the fine not exceeding two million shillings or imprisonment for a term not exceeding two years or to both.

Section 50. Regulations Section 50(1) The Cabinet Secretary shall in consultation with the Council, make regulations for the better carrying out of the provisions of this Act. Section 50(2) Without prejudice to subsection (1), the council may make rules to govern its own procedures. Section 50(3)(a) the authority of the Cabinet Secretary to make regulations under this Act will be limited to bringing into effect provisions of this Act and to fulfillment of the objectives specified under this section; Section 50(3)(b) the principles and standards applicable to the regulations made under this section are those set out in the Interpretation and General Provision Act (Cap. 2) and the Statutory Instruments Act (Cap. 2A).