Re: [kictanet] Media council Draft bill 2010 (Day Four--Appointment of Chair/Procedure for appointment)
Dear All I'm still rural siaya where power challenges persist hence I will be brief. I agree with most of you that the chair of the council must not be a judge and a legal profession because the council duties are not limited to arbitration. The office of the chief Justice is very busy with enough judicial concerns to address and may nit have time for media. I suggest that the members appoint their chair and the ministry be the appointing authority. According to the new constitution, the ministers won't be political appointees so the minister could perform those duties with the interest of industry players better. There is need to assert journalism the profession and recognition as the fourth estate. Racheal Sent from my iPhone On Jan 27, 2011, at 6:13 PM, Lydia Gachungi <[email protected]> wrote: 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 <[email protected]> Sent by: kictanet-bounces+lydia.gachungi=unesco.unon.org@lists.kictanet.or.ke 01/27/2011 05:38 PM To Lydia <[email protected]> cc [email protected] 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 <[email protected]> wrote:
Dear All,
On 27 January 2011 15:32, k.k. ombati <[email protected]> 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 <[email protected]> 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
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Dear Listers KK, Lydia, Rachael, Solomon and Erick, your insight into issues of today’s debate are very well taken in. KK, thanks for pointing out that the draft is silent on the appointment procedure of the Chair. You and Erick are also right that the appointment of MCK members is outside Judicial Service Commission’s constitutional mandate. Solomon, right on point on the need to be vigilant on all Chairs of Constitutional bodies being drawn from one profession. But most important I agree with you that young people should not be locked out by the 10 year requirement. On a light note, maybe we still want them to be ‘future leaders’J . Erick, you have given us an insight into what might have informed the drafters, and the fact that the appointment process might have been borrowed from JSC Bill. You have also enlightened us on other jurisdictions of Uganda, Tanzania and South Africa. I believe with this background, we will be able to strengthen this document and have an MCK that has the advantage of being informed by other examples and therefore adopt what is relevant. Lydia, thanks for providing the case of Rwanda Media Council and their example of the Cabinet appointment process. You have raised a concern of how governments have tended to respond to media’s of lack of professionalism and ethical issues namely through punitive legislation and statutory Media Councils. And now thinking aloud, could the Kenyan government be doing the same? Your concern on the independence of MCK has been noted, as well as the need to have a Chair who can rise above interests of those represented in the council when it comes to decision making. And finally Racheal, thanks for reminding us that Cabinet Secretaries will no longer be politicians. I mean the practice has been for politicians to hold Ministerial positions. I therefore imagine we need to keep reminding/locate our thinking in the new dispensation. And finally Listers, here is a summary of the issues raised today: 1. The appointment of MCK members should be done independently and be outside the control of the government to promote freedom of expression and prevent state actors from interfering with the independence of the media 2. The seat of the chairperson of the MCK should not be limited only to an Advocate of the High Court. It should be open to all council members. 3. Stakeholders in the media industry as well as other professionals should have a say in who gets appointed to the MCK. 4. The JSC should not be the body mandated to make appointments to the MCK. It should be considered that this role be played by the Cabinet Secretary with participation of the Industry. 1. Does the requirement for having at least ten years experience in the professions mentioned in Section 7(c) have the consequence of locking out the youth from positions in the MCK? 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
Dear Listers Today being Friday, we are only raising three concerns on requirements for appointment to the Council and tenure of office of Council members. On requirements for appointment (article 10) the draft provides for eligibility for appointment to the Council which is (a) a person is a holder of a degree…, has expertise in areas of media policy and law, media regulation, business practice and finance, journalism, the performing arts, entertainment, education, advertising practice or related social issues. Question: Is this section necessary considering issues of qualifications for appointment have already been dealt with in section 7 (on qualifications)? On tenure of office, members shall hold office for a period of three years and shall be eligible for re-appointment subject to a maximum of two terms. Question: · Should there be special provision of election of Chair within the Council? · And can a person be a Chair for the two terms s/he is a council member? Let me take this opportunity to thank all those who have made this debate very interesting in the first five days. We will take Monday next week as day six where we will discuss matters finance. We do hope that those who have not been able to participate/contribute will get a chance to do so next week. Do have a great weekend. 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!
participants (2)
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Grace Githaiga -
Racheal Nakitare