The High Court, sitting in Nairobi on Friday gave conservatory orders stopping the Cabinet Secretary for Communication, Information and Technology Fred Matiang’i from setting up panels to reconstitute the Media Council of Kenya Council Board, the Council’s Complaints Commission and setting up the Multi-Media and Appeals Tribunal until the full case is heard and determined by the High Court.
Journalists organizations, the Kenya Correspondents Association, the Kenya Editors Guild and the Kenya Union of Journalists had moved to court to have the court declare the Media Act 2013 and the Kenya Information and Communications (Amendment) Act 2013 unconstitutional.
Three top media houses in Kenya, the Nation, Standard and Royal Media Services also filed a similar suit with the existing Media Council also joining it to stop the implementation of the new Media Act 2013.
The three cases were consolidated by Justice Mumbi Ngugi who has referred it to the Chief Justice Willy Mutunga to constitute a three judge bench to hear the case, which requires constitutional interpretation.
The suit raises a number of constitutional issues, among them that the two laws are in violation of Article 34 of the country’s constitution which envisages a media body free from government, political and commercial control.
The suit also raises the issue of the Presidency being turned into a legislative organ as President Uhuru Kenyatta made recommendations to the National Assembly in his memorandum last year which became part of the new law following protests from the media industry over the initial bill, contrary to Article 115 of the Kenyan constitution.
The Article requires the president to only express his reservations with the whole or sections of the Bill as presented to him for assent by the National Assembly, and not to make binding recommendations which tie the hands of parliamentarians.
Lawyer James Orengo for the journalists bodies and Paul Muite for the media houses urged the court to grant the conservatory orders arguing that media freedom and other fundamental rights would be put in jeopardy if the Cabinet Secretary for Information was allowed to go ahead to implement the two Acts whose constitutionality was being questioned by the petitioners.
The lawyers further argued that setting up the Appeals Tribunal would trigger a climate of fear and intimidation on media practitioners and media establishments as it would immediately commence levying financial penalties of Shs 500,000 ($5880) on journalists and Shs 20 million($235200) on media houses judged in violation of the KICA Act by the tribunal.
They said it was double jeopardy as the Media Council, through the Complaints Commission also had powers to levy fines on journalists, creating an environment which would harass and intimidate the journalists into silence and stifle media freedom, freedom of expression and ultimately, the exercise of democracy by Kenyan citizens.
Lawyers for various government agencies and the National Assembly and the Senate argued that stopping the process would injure the interests of the public rather than those of media practitioners saying the laws were meant to regulate the media to make them more responsible in furtherance of the protection of the rights of members of the larger society.
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