[kictanet] Media council Draft bill 2010 (Day Four--Appointment of Chair/Procedure for appointment)

Lydia Gachungi Lydia.Gachungi at unesco.unon.org
Thu Jan 27 18:13:54 EAT 2011 

Dear Listers,

To contribute to this debate, let me  start by  quoting  examples of 
what?s happening with similar media councils in the region in relation to 
government appointments . 

According to various International  and regional media watchdog groups, a 
major challenge for the media especially in this region is the temptation 
by governments to respond to concerns about eg  lack of professionalism 
and respect for ethical standards in the media with punitive legislation. 
They  argue that this is what has in part informed government moves or 
attempts to pass restrictive media laws, including the establishment of 
statutory media councils like  the current MCK. These Statutory media 
councils  have ended up doing more to stifle free expression and press 
freedom than to promote professionalism and standards.

 If we take an example of the Rwanda?s Media High Council, which is also 
enshrined in the country?s constitution, and which is arguably the 
region?s most active statutory media council, although its independence is 
guaranteed both by the Constitution and the law, various media watchdog 
groups argue that  since  its members are appointed by the Cabinet from 
among  representatives of different media stakeholders( 2 private media, 1 
public media, 1 civil society, 1-private sector and 2  from central 
government), that the Media High Council tends to focus more on policing 
the media  more than fulfilling  its other mandate of promoting and 
protecting press freedom. 

Other statutory councils in the region, such as Uganda?s Media Council and 
Broadcasting Council attract similar charges of lack of independence or 
distance from the government, which appoints the members. 

Notably, many governments in the region have been involved in all these 
appointment and Kenya is not exceptional.  The reality is that as long as 
the governments are involved in appointments, whether it is the chairman 
of the MCK or the other representative either by the relevant ministry or 
judiciary, independence can never be guaranteed.

 In order to address these challenges, there has been various attempts in 
different  countries  to create self-regulatory mechanisms in the region. 
Tanzania provides perhaps the longest-running self-regulation experience ? 
and one from which lessons could be drawn for other countries in this 
region. 

Uganda also saw the establishment of a non-statutory regulatory body, the 
Independence Media Council of Uganda. However, the statutory Media Council 
and Broadcasting Council are still active and continue to overshadow the 
self-regulation mechanism. 

Rwanda also has the Rwanda Ethics Commission, a self-regulatory body that 
is a sub-committee of the Rwanda Journalists Association. 

In that case, for the MCK, the issue of who is the chair  or appoints the 
same may not be as critical as whether their decision will be independent 
or influenced by the interests they represent  in the board like many 
other statutory bodies  in the region .  The suggestion that more 
representatives from the media industry be appointed to the board all the 
more  makes sense to also ensure that the MCK actually serves the people 
it represents.

 The  board members should also  elect their chair  on revolving basis 
rather than having too much of government hand in MCK composition  and 
management of its board meetings . That may then guarantee a degree of 
independence


Lydia 



ERICK ngaira <erickngaira at gmail.com> 
Sent by: 
kictanet-bounces+lydia.gachungi=unesco.unon.org at lists.kictanet.or.ke
01/27/2011 05:38 PM

To
Lydia <lydia.gachungi at unesco.unon.org>
cc
kictanet at lists.kictanet.or.ke
Subject
Re: [kictanet] Media council Draft bill 2010 (Day Four--Appointment of 
Chair/Procedure for appointment)






Dear  all
I am inclined to believe this was copy paste from the Judicial Service
Commission bill,( drafting error) hence the reference to  ?the Chair
of the Commission?. On the other hand, if that is not the case and
indeed the drafters intention is to have  an advocate as  the chair
then ,these are my comments
.
 1.In other  jurisdictions , for example , Uganda, Tanzania ,
Southafrica,  etc, - where I believe the drafters were borrowing from
, the chair of the council is judge or retired judge, This is mainly
because in these jurisdictions it is the Council that  hears and
determines complaints  unlike the MCK.

The MCK as constituted by both the 2007 Act and the 2010 Bill creates
the Complaints Commission. It is the Commission that hears and
determines complaints. The Chairperson of the commission is a person
qualified to hold the office of a  of the judge of the High Court.
Therefore it is not necessary to make the chair of the Council a
judge, even if the drafters were contemplating an appeal from the
Commission to the Council, as provided for in section 33 of the bill,
the Council already has a an advocate as a member and the  can sit on
the appeals Committee. In view of this, the position of Chairperson
should be open to anyone sitting on the Council, and they should be
elected by the other Council members.

As far as membership to the counci goes, It would be prudent to have
each of the professional bodies drawn from those professions listed
under Section7(c) among other stakeholders, nominate someone to serve
on the Council with a minimum number reserved  for  media
profffesionals.

2. On he JSC being the appointing authority, I believe the idea was to
make the MCK  independent from the government  in the spirit of
article 34(5), however this is inconsistent with the provisions  of
article 172 that outline the mandate of  the JSC. To that extent the
provision is null and void as provided for in article 2(4) of the
Constitution.



On 27/01/2011, Solomon Mburu Kamau <solo.mburu at gmail.com> wrote:
> Dear All,
>
> On 27 January 2011 15:32, k.k. ombati <kaykerubo at gmail.com> wrote:
>
>> Hi,
>> Firstly,I think its unrealistic to decide that the chairman of the MCK
>> must be lawyer and one qualified to be a judge at that.That is too
>> exclusive...i think the postion of chairperson should be open to
>> anyone sitting on the Council.
>>
>
> I agree. The Chair of MCK should not be a person of the position of a 
judge
> or a lawyer, because, essentially, if we let lawyers and judges be the
> chairs of constitutional bodies, the other professionals will feel left
> out.  This exclusivity should be avoided.
> Still on article 7(c), I find it rather 'choosy'. Ten years experience?
> Doesn't that lock out other interested groups - the youth to be specific 
-
> from serving in this Council?
>
>
>
>> Secondly,the Act has failed to state how the appointment of
>> chairperson will be done,will it by election by existing council
>> members or nomination or are they to be appointed by the appointing
>> authority.
>>
>> thirdly,to mandate the JSC to appoint members of the MCK is oustide
>> the constitutional mandate of the JSC,I would propose that
>> professional bodies drawn from those professions listed under
>> Section7(c) together with KUJ,Editors Guild and Media Owners
>> Association etc...each nominate someone to take up a position in MCK
>> with a number of seats,say four,reserved for media professionals only.
>>
>>
>> On Thu, Jan 27, 2011 at 12:48 AM, Grace Githaiga 
<ggithaiga at hotmail.com>
>> wrote:
>> >
>> >
>> >
>> > Good Morning Listers,
>> >
>> >
>> >
>> > Welcome to day four of our debate.
>> >
>> >
>> >
>> > Today, we will focus on the appointment of the Chairperson of the 
Media
>> > Council, and procedure for appointment of Council Members.
>> >
>> >
>> >
>> > The Appointment of the Chairperson Article 7 (2)
>> >
>> > The chairperson of the Commission shall be a person who is qualified 
to
>> hold
>> > the office of judge of the High Court under the Constitution.
>> >
>> >
>> >
>> > Question: Should the Chair of a Media Council be drawn from the legal
>> > profession?
>> >
>> >
>> >
>> > Article 8 (1) The Chief Justice shall, within fourteen days of the
>> > commencement of this Act, and every time vacancies shall arise in the
>> > Council, by notice in the gazette declare such vacancies in the 
Council
>> and
>> > request for applications.
>> >
>> > (2) An application under subsection (1) shall be forwarded to the
>> Judicial
>> > Service Commission within fourteen days?for purposes of considering
>> > applications, interviewing and short listing at least three persons
>> > qualified for appointment as chairperson and nine persons qualified 
for
>> > appointment as members.
>> >
>> >
>> >
>> > Question:
>> >
>> >
>> >
>> > a)      Article 161 (2) of Kenya?s constitution states that the Chief
>> > Justice is the head of the judiciary.  Should his duties also extend
>> > into
>> > the appointing authority for MCK?
>> >
>> >
>> >
>> > b)      The mandate of the Judicial Service Commission (JSC) as 
stated
>> > in
>> > article 172 of Kenya?s Constitution is for the judiciary. Should JSC
>> > then
>> > extend its mandate to the Council when its mandate is so clearly 
stated
>> in
>> > the Constitution?
>> >
>> >
>> >
>> > c)      What would be the alternative appointing authority?
>> >
>> >
>> >
>> > Once again, we would like to hear your comments/views on these 
critical
>> > issues.
>> >
>> >
>> >
>> > Rgds
>> >
>> > Grace
>> >
>> >
>> >
>> 
-----------------------------------------------------------------------------------
>> > If you have the strength to survive, you have the power to succeed. 
Life
>> is
>> > all about choices we make depending upon the situation we are in. Go
>> forth
>> > and rule the World!
>> >
>> >
>> >
>> >
>> >
>> > _______________________________________________
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>> >
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>> >
>>
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>>
>
>
>
> --
> *Solomon Mb?r? Kamau*
>
> *****************************************************
> *Man is a gregarious animal and enjoys agreement as cows will graze all 
the
> same way to the side of a hill!*
>
> AND
>
> *It is better to die in dignity than in the ignominy of ambiguous
> generosity! *
>
> http://smiley2.wordpress.com
> http://mburu.sikika.co.ke
>

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