The commemoration of the June 25, 2024, protests on Wednesday gripped the nation. The swift and controversial directive from the Communications Authority of Kenya (CA), ordering major media outlets, including Citizen TV, KTN, NTV, and K24, to halt their live coverage of the protests, became the focal point.

The move sparked immediate public outrage and widespread condemnation. Barely a day later, the Authority rescinded the directive after the Katiba Institute and the Law Society of Kenya (LSK) filed petitions at the High Court. The two bodies argued that the CA’s action violated constitutional rights to freedom of expression and the media.

This tussle between the media and the Information, Communication, and Technology (ICT) regulator is not a new one. Long before Gen Z took to the streets to voice their grievances, the State used the sector regulator either to amplify its message or to suppress dissent. It is a playbook almost as old as the nation, and one that is not unique to Kenya. It speaks to the enduring power of the media.

Media in Kenya is regulated through a co-regulation model that combines State regulation and industry self-regulation. State regulation is anchored in the Kenya Information and Communications Act (KICA), 1998, which grants regulatory powers to the CA as the sector regulator. Industry self-regulation, on the other hand, is facilitated through the Media Council of Kenya (MCK), established under the Media Council Act, with the mandate to formulate and enforce the Code of Conduct and professional standards for the media sector.

The balance of power between the CA and MCK has been tested over time, with each asserting its regulatory dominance. A recent example is the CA’s attempt to set a broadcasting code, a move which the MCK opposed, arguing that such a mandate belongs solely to the Council. In a 2024 High Court judgment, the court affirmed MCK as the rightful regulator in setting media content standards.

This regulatory tussle must also be viewed through the lens of the enabling Acts. KICA was initially enacted to liberalise Kenya’s media and communications sector, opening a space previously dominated by the Kenya Posts and Telecommunications Corporation (KPTC). This was intended to establish a framework regulating the rapidly growing ICT sector.

Since its enactment, KICA has undergone several amendments, with key ones in 2009 and 2013. The 2009 amendments were significant in introducing provisions to guarantee the institutional independence of the then Communications Commission of Kenya (CCK), providing that the Authority should operate free from government, political, or commercial interference.

However, this legislative intent has often been undermined in practice. Despite the law, key leadership positions at the CA, such as the Director-General and the Board Chairperson, continue to be held by political appointees. Over the years, this has eroded public confidence in the Authority’s neutrality and reinforced the perception that it acts as a government censorship tool. The CA’s recent directive to major broadcasters to halt live coverage of anti-government protests further solidifies this perception.

The 2013 amendments introduced another layer, aligning KICA with the 2010 Constitution, particularly by mandating the Authority to respect media freedom and freedom of expression. However, these freedoms are not absolute. The law provides for limitations, particularly where content amounts to propaganda for war, incitement to violence, or hate speech. It is under this pretext that many of the CA’s content-related directives are typically justified.

Nonetheless, the directive issued on Wednesday ordering stations to stop airing protest coverage cited Section 461 of KICA. This section does not exist in the current law. This has raised serious legal and ethical concerns that question both the legitimacy of the directive and the Authority’s understanding of its statutory limits.

The government has long shown an interest in controlling the media. Recent allegations that the government intended to procure a system to monitor and influence online narratives, though seemingly far-fetched, underscore this concern. While it is easier to regulate traditional media, whose transmission signals can be switched off, new media platforms such as X (formerly known as Twitter), Instagram, and TikTok have proven more challenging to control. 

Whether through controversial laws like the Computer Misuse and Cybercrimes Act, 2018, or by requiring social media platforms to establish physical offices in Kenya, there is growing unease among stakeholders about regulatory overreach. Many fear that such moves could threaten freedom of expression, especially in digital media spaces.

A key step forward in reaffirming the freedom of expression and media would be bolstering the strength of the Media Council of Kenya and ensuring the independence of the Communications Authority. This should be enshrined in law, and by also insulating the media from executive interference, ensuring it operates strictly within its regulatory mandate.