Research by Thomson Reuters TrustLaw has found that Kenya and South Africa have comprehensive legal frameworks on the protection of media freedom, like freedom of expression, access to information, and the right to privacy but these rights are not absolute.
“The constitution in Kenya is similar to South Africa as permitting rights, there are various considerations such as hate speech, advocacy for hatred and incitement for violence,” said Gakkii Mbae, a lawyer at Thomas Reuters Trust Law. Mbae says Zambia’s right to access to information is not legislated and does not form part of the constitution.
Mbae presented the report by the organisation during a seminar held by the South African National Editors Forum at the Wits University Centre for Journalism. The report explored foreign media ownership in three countries namely, South Africa, Zambia and Kenya. The report also looked into the survey of laws governing media in these countries, including transparency and foreign ownership of media and how these laws are enforced. The researchers explored the constitution, media ownership regulation, regulation of content and opportunities between the three countries.
Media ownership in South Africa is regulated under the Electronic Communications Act, which limits foreign control of commercial broadcasting services, the Broadcasting Act which regulates private and public broadcasting, and the ICASA Act which regulates electronic communications as well as broadcasters. The report noted the Competition Act, amongst the three countries – when it comes to competition issues and limitation of dominance positions when it comes to ownership, in South Africa – is regulated by the Electronic and Communications Act as well as the competition framework in the country. In Kenya, this is covered by Communications Act regulations. The country develops a policy that is updated often where foreign and local ownership requirements are set out. This is enforced by the Communications Authority of Kenya.
Competition issues within media deals are dealt with by the Competition Commission and Tribunal and appeal bodies have an opportunity to interrogate competition through these frameworks. Researchers found it challenging that the ICASA clause on foreign ownership limitation is 20% and should ICASA decide to enforce this clause, media companies that report such information, should have evidence to back their claim.
Mbae says the problem is that information about media ownership is not availed to the public, a common person would not have access to such information easily. “Although there are frameworks to control media ownership in the three countries, one of the common issues is that the requirement of providing ownership information is not always available to the public,” says Mbae. She says transparency of media ownership was an issue in the three countries, as much as regulations have the information, it is rarely released to the public. The public is in the dark about who controls the priorities content of the news and has an impact on the diversity of the media.
In Kenya, foreign ownership can go up to 70% and in Zambia, foreign ownership cannot exceed 25%. Mbae says what researchers found interesting in Kenya, is that there have been conversations around policy to change foreign ownership. In Kenya, President William Ruto recently said the foreign ownership percentage will be reviewed in order to attract foreign investment. In South Africa, there is a draft White Paper introducing a policy proposal to change the 20% foreign ownership to 49% to increase foreign direct investment. “We [are] not sure where at which stages these conversations are at,” says Mbae.
Media regulation
In media regulation in Kenya, there is statutory regulation. The Media Council of Kenya and the Media Complaints Commission were established under the Media Council Act of Kenya, as an independent body but funded by the government. While in Zambia, there is a bill, which was introduced by stakeholders in the media but some have called for a self-regulation body instead. “This is similar to how the media is regulated in Namibia, where the is a media ombudsman and members of the media fund that organisation as opposed to being funded by the government,” says Mbae.
The report found that regulation of content in the three countries is similar. In comparing the two countries, South Africa and Kenya, the researchers found that in South Africa there are appeal mechanisms in place should the media be disgruntled.
In Kenya, there is a Films and Stage Plays Act and should you need to appeal this will be directly to the minister. “A classic example would be the case of the Rafiki film, a Kenyan-produced film, and the responsible body banned it. Appealing to the minister would have clear adjudication mechanism challenges and they went straight to court and they did not succeed but they are currently appealing,” says Mbae.
In Kenya, there is a law that establishes prohibited areas, which means as journalists, you cannot record or publish information about those areas and you are prohibited from revealing state secrets. In South Africa, defamation law is dealt with by the common law which has been a thorny issue for journalists and media practitioners as this has been in other countries like Kenya. Kenyan courts are bound by judicial precedence, courts are bound by decisions that have been made before.
“We are seeing a pattern where courts are awarding such huge damages against media organisations, in some cases its usually public figures, more so media outlets. For example, a court might award today 22 million Kenyan shillings, the next time the court may go higher as there is precedent,” says Mbae. Mbae adds that there have been systematic discussions about challenging this practice as it poses issues of sustainability of media outlets as having to pay for all suits posed by political figures might lead to the closure of media houses.
In Kenya and Zambia, the Cybercrimes Act is been challenged in court. One of the clauses being challenged is the “forced news offense” due to law enforcement officers abusing it to arrest and harass journalists who operate on digital platforms. “During the Covid-19 pandemic period, a number of journalists were arrested under this provision. The trend that we saw in Kenya is that these cases often are not approved by the prosecutor to go to prosecution. In South Africa, this law was introduced during the Covid-19 pandemic under the Disaster Management Act.
Developing media freedom
“We have listed the cases which we think are important in developing media freedom in South Africa,” says Mbae. The report says in comparison to the other two countries, Kenya and Zambia, South Africa is ahead in terms of recognising public interest reporting or where activists are sued for defamation for public interest reporting or interrogation, there is an opportunity to raise their defense.
“What we have seen as researchers is that South Africa has a very vibrant litigation to protect the rights of journalists,” says Mbae. This is something the researchers have not seen in the other two countries, Kenya and Zambia. “However in Kenya, there are mechanisms for journalists to do that, within the Media Complaints Commissions, journalists can report their rights being violated,” says Mbae. There are currently no cases that have been determined by the Media Complaints Commission. She says there is, however, an ongoing case in Kenya where media organisations are challenging the systematic threat and harassment of journalists but there has been no outcome as courts are still deliberating.
The report highlighted the notable trends in the three countries, in South Africa, the researchers say there are laws that have the potential to review. In the Criminal Procedure Act, there is a section that allows, on application, the magistrate or judicial officer to ask a journalist to reveal their sources. “This has been used before but there have been developments, where journalists will not be imprisoned should they choose not to reveal that information,” says Mbae. She says the research showed that in courts and judicial bodies in South Africa, there is a strong trend toward the protection of journalists and press freedom. Even though Kenya and South Africa have access to information law, procedurally, there seem to be several restrictions on what journalists can access and what they can publish. “In Kenya, when you request information, what is given as a reason, is national security. although national security is quite a convenient excuse to give. As much as there is access to information law, there are constraints,” says Mbae.
In Zambia, there is criminal defamation while in Kenya, this was declared unconstitutional. “What is interesting, this was sneaked back in a subsequent law by lawmakers,” says Mbae. Defamation is clearly an issue in terms of cost implications both to the media outlet and the journalist. Criminal provisions in all countries which limit media freedom could be abused and could lead to the self-censoring of journalists. The cost of litigation in all three countries is really high, which could deter journalists.
The report says some journalists are not familiar with laws that pertain to their work and policies. “As part of the work Trust Law does, we are developing resources, like a resource guide for journalists on defamation and how to deal with journalistic sources,” says Mbae. She says the resources guide has information like how journalists can mitigate defamation and in which instances can their journalistic equipment be confiscated, amongst others. Researchers have also identified an opportunity for legislative review and advocacy with relevant legal drafters in parliament on such laws. They also recommend judicial training for magistrates to have the grounding of these issues to be able to understand media freedom from a constitutional view and for the three countries to promote local media.
*The Thomson Reuters TrustLaw offers programmes where they train and mentor journalists. The organisation also provides pro-bono legal services for journalists.
