Communications Authority Ordered to Review Unconstitutional Regulations

CA Director general

In a significant legal development, a Kenyan court has issued a series of orders compelling the Communications Authority of Kenya (CA) to reconsider its regulations that prohibited TV stations from broadcasting live protests. The court ruled that the Communications Authority actions were in violation of the country’s constitution, highlighting the importance of safeguarding freedom of expression and information.

At the time, the then Director General Ezra Chiloba who resigned last week, stated that 6 Kenyan stations had breached the programming code. The court’s ruling, issued on 19th October, included several key orders. Firstly, the court has quashed CA’s decision of March 22, 2023, to censure six TV stations—Citizen TV, NTV, K24, KBC, TV47, and Ebru TV—for covering opposition demonstrations on March 20, 2023. The court found that these actions by the authority had infringed upon the broadcasters’ rights and freedoms.

Unconstitutional Clauses

A significant aspect of the court’s judgment was the declaration of the unconstitutionality of Regulation 19(a), (b), (c), and (d) of the Kenya Information and Communications (Broadcasting) Regulations, 2009. These regulations were deemed to limit the freedom of expression, media, and information in vague and overbroad terms, directly contradicting Articles 33, 34, and 35 of the Kenyan Constitution.

Furthermore, the court highlighted that the Programming Code for Broadcasting Services in Kenya, 2019, had expired and was of no legal effect. This was established under section 46H(2)(b) of the Kenya Information and Communications Act (KICA), 2009 , and section 11(1) and (4) of the Statutory Instruments Act, 2013. Consequently, Clause 10.2.1 of the Programming Code was considered non-binding, and the authority’s decision based on it was invalidated.

Going forward, the court has directed the regulator to review the Programming Code for Broadcasting Services in Kenya that are currently in effect. Recognizing the complexities of this process, the court has suspended the order for 12 months, allowing the authority time to address the issues at hand.