Cablegate: Kenya's Media: Part I - Overview and the New Media Law


DE RUEHNR #2640/01 3551129
R 211128Z DEC 09



E.O. 12958: N/A
SUBJECT: Kenya's Media: Part I - Overview and the New Media Law

1. (SBU) Summary. This is the first part of a four-part report on
the state of the Kenyan Media. The parts are: 1) Overview and the
new media law; 2) Radio Stations; 3) Media Houses and Cross
Ownership; and 4) Role of the media and New Trends. Since the
liberalization of the media industry in the late 90s, Kenya has
seen impressive growth of both the broadcasting and print media.
The role of the media during the 2007 post-election turmoil,
particularly, that of vernacular stations, is still widely debated.
The violence after the elections and the media's vigorous criticism
of Kenya's leading politicians catalyzed the passage of a media
law, which has created much unhappiness among the media. It is not
clear if the GOK's Communications Commission of Kenya (CCK), even
with the new media law in play, would be able to rein in
politically well-connected media houses. Many also fear that the
government could apply the new rules selectively to constrain
critical reporting. End summary.


Vibrant Media


2. (SBU) The media industry in Kenya was largely state-controlled
from 1963 to the late 1990s. In 1990, Kenya had three radio
stations and two television stations, all state-owned and operated.
When the government began de-regulating the media in the late 90s,
the number of all forms of media grew rapidly, particularly FM
radio stations. The mainstream print media today comprises five
daily newspapers with a combined circulation of about 350,000. The
first private TV station, KTN, was licensed in 1990. So far, the
state owned KBC (Kenya Broadcasting Cooperation) remains the only
nationwide broadcaster. Currently, there are twelve TV stations
and over 100 radio stations in operation. As the liberalization of
the media continued, the Kenyan media companies had to learn to
survive in the fierce competitive environment that emerged. The
result has been a vibrant media, which aggressively ventures into
areas previously considered off-limits, such as official corruption
and other abuses by government officials.


New Communications Act


3. (SBU) The media's willingness to shine a spotlight on GOK
officials ' misdoings and the questionable role of some media
outlets in the 2008 post-election violence catalyzed a new,
potentially more restrictive media law, the Kenya Communications
Act. The media reacted violently to clauses in the Act which they
believed curbed media freedom. In addition to Section 88, which
gave the Minister of Information power to dismantle a media outlet
in the event of emergency, there were a series of newly-added
clauses that would infringe upon media freedom. For instance, the
Minister for Information was given unchallenged power to control
media content. That control would be exercised through the power
to "issue guidelines for programming codes." The act also
conferred on the Minister power to grant, refuse or cancel
broadcasting licenses on the basis, inter alia, of non-fulfillment
of "such other conditions as may be prescribed" by the Minister.
President Kibaki, who had signed the new bill on January 2, 2009,
subsequently succumbed to pressure from the media and the Act's
most controversial provisions including Section 88 were removed.
The new "final" bill was passed by Parliament in May 2009.


What's in the New Regulations?


4. (SBU) The Communications Commission of Kenya (CCK), the
government agency mandated to oversee the implementation of the new
media law, circulated new regulations in late September. Dubbed
the Kenya Communications Regulations of 2009, the new rules are
considered to be the most ambitious attempt to shape broadcasting
in Kenyan history. They seek to regulate broadcast content,
technology, advertising, ownership and public interest issues.
Chairman of the Media Council (media's own self-regulatory body),
Wachira Waruru said, "The intentions for the new regulations were
good" but they were "issued in a haphazard way without enough
consultations with the media." Media owners met several times to
strategize and fight back. Some of there concerns were following:


Intrusive and Overarching?


5. (SBU) The new regulations stipulates, "The Commission shall
ensure that broadcasting services reflect the culture, needs and
aspirations of the audience and or viewers, and such services
provide appropriate amount of local content and include news and
information in their programming as well as discussion on matters
of national importance as may be prescribed by the Commission from
time to time." It prohibits broadcaster from accepting
sponsorships of news broadcasts, and from releasing informercials
for a period exceeding three and half hours of the performance
period in any day, during prime-time or during any break in the
transmission of a children's program.


Licensing: Murky Business


6. (SBU) The two most contentious issues addressed by the
regulations remain licensing and content monitoring.

In the past, licenses were issued by the Ministry of Information
and Communication, while frequencies were allotted by the CCK. The
new regulations have made the CCK solely responsible for both
operations. Waruru agreed that this had to be the first step in
streamlining the licensing system.

7. (SBU) However, several media houses disagree. The most
significant and potential controversial change was a proposal to
introduce the one frequency per one broadcaster per spot rule --
"all licensees, except the public broadcaster shall not be assigned
more than one broadcast frequency for radio or television
broadcasting in the same coverage area." Its effect will be to
force some of the major broadcasters to surrender frequencies
already in their possession. According to Kiprono Kittony,
Chairman of Radio Africa, the holding of more than one broadcast
license is a pre-existing and non-negotiable issue, which the
Kenyan government cannot revisit retrospectively.

8. (SBU) Although broadcasters are given five years to bring their
operations in line with the new regulatory regime, powerful
"hoarders" will resist because they have already invested millions
in infrastructure, while their expansion plans were based on the
multiple frequencies they have been holding. They argue that the
government could not "roll back" the growth of the broadcasting
industry which was done, not by the government, but by
enterprising, hard-working and ingenious pioneers. Kittony
maintains that if they have to "return" the frequencies and have to
"dismantle" what has been already built, the Kenya media industry
will suffer the set back. Media owners also question who then will
have those frequencies, expressing their lack of confidence in the
CCK's fairness and impartiality.

9. (SBU) The new CCK regulations also stipulates that a license

will be granted only to those who offer broadcasting services for
at least eight continuous hours per day. No frequency is
transferrable to another entity without the CCK's permission.

10. (SBU) The CCK sees things differently. Among the frequencies
already issued, about 30 frequencies lie idle because the owners,
not yet interested in operating a station immediately, keep them
"just in case" when they may need to open a new station for
political or other reasons. Many politicians are believed to be
these owners. Some of them already have started operating their
own stations. Others are reportedly planning to open stations
before the next presidential elections in 2012.

11. (SBU) According to the CCK's Deputy Chairman, Francis Wangusi,
the Nairobi area has exhausted the frequency spectrum and there is
no new frequency to be had, while some frequencies are being
unused. This situation not only precludes new aspiring
broadcasters' entry to the market but also stifles healthy
competition, says Michael Mumo, Managing Director of Capital FM.
The phenomenal growth of the broadcasting industry meant an
insatiable demand for the broadcast spectrum, leaving the CCK no
choice but to deny a frequency to a "legitimate" broadcaster,
because there are no more frequencies to be had.


Content Regulation


12. (SBU) The new regulations give the CCK authority to prescribe
to broadcasters the time, type, and format of programs to be aired.
It is stipulated, "A licensee shall not broadcast any matter which
contains the use of offensive language, including profanity and
blasphemy; presents sexual matters in an explicit and offensive
manner; glorifies violence or depicts violence in an offensive
manner; is likely to include or perpetuate hatred of vilify any
person or section of the community on account of the race,
ethnicity, nationality, gender, sexual preference, age, disability,
religion or culture of that person or section of the community."

13. (SBU) The new regulations also require that news and
information be presented in a balanced manner, without prejudice
and be based on fact, not on opinion, rumor, supposition or
allegation unless the broadcast is carried out in a manner that
indicates these circumstances clearly. The CCK prescribes even
"proper" ways to conduct interviews.

14. (SBU) During an election period, "A licensee shall provide
equal coverage and opportunities to political parties and
candidates and shall not permit any broadcast sponsored by or made
on behalf of a political party."

15. (SBU) Until now, program content has been self-regulated, with
broadcasters abiding by a code of ethics established by the Media
Council of Kenya and individual media houses' own editorial
guidelines. Observance of standard practices such as the principle
of the right to reply, fairness, and objectivity which had earlier
been left to the media houses and the Media Council, are now
regulated by the CCK and breaches will be punished. Media
practioners feel that the CCK, a government-appointed authority, is
unnecessarily empowered to prescribe what are matters of national
importance and cultural needs of viewers and listeners. They fear
that it is likely to be biased in favor of promoting the


Battle Looming


16. (SBU) Before the passage of the new media law, many had
characterized the Kenyan media's impressive growth as proliferation
without regulation. Few disputed the need to regulate the
fast-growing broadcast industry and streamline its then murky
practices. Particularly during the post-election violence, when

the media did not always play a helpful role, there was a consensus
that some form of regulation was necessary. The crux of the
problem, however, was the overwhelming mistrust of the government
by the public and by the media. When the CCK circulated new
regulations in late September to media practitioners, they were not

17. (SBU) Rose Kimotho, Managing Director of K-24 and Kameme FM,
criticized the government for "trying to infringe upon editorial
independence of media houses." Linus Gitahi of the Nation Media
Group suggested that each media house post its reaction on its
website with suggested amendments. He questions, "What criterion
wild be used to determine which licensees qualify for the national
license? A subjective criterion will result in favoritism and




18. (SBU) While the rapidly expanding media market in Kenya
clearly needed better ground rules, how the government will
implement them remains to be seen. One concern is that they may be
more strictly applied to those media houses openly critical of the
government. We remain in close contact with media and government
officials, and have made clear our concern that any media laws and
regulations not be biased in such a way as to intimidate or
constrain legitimate media activity.

© Scoop Media

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