Self-regulation is the favoured approach to responsible journalism in Kenya. But there has been some scepticism, especially from politicians and government officials, about the capacity and willingness of the media industry to check itself.

For long, the Media Council of Kenya, which was established by law on October 1, 2007, to oversee the industry and enforce the Code of Ethics for the Practice of Journalism in Kenya, did not inspire much optimism. Upon foundation, MCK promptly retired to an old, nondescript house not far from City Mortuary and was rarely heard from.

MCK had inadequate funding, officials kept snivelling. The government was not keen to support its activities. The Media Act did not give the council enough teeth to bite. And so on…

But the outfit was also crowded by media investors, greying professionals from the last century and other hangers-on who did not really care about promoting media freedom and professionalism.

But now MCK seems to have come back to life. To start with, it has a new set of brains at the top offices led by Dr Levi Obonyo, the chairman and Dr. Haron Mwangi, teh executive Director. The council recently fled from its eerie home near City Mortuary. This month, MCK held its largest public event ever: a regional media conference in Nairobi officially opened by President Mwai Kibaki, followed by an awards ceremony to celebrate the country’s top journalists.

But by far the most significant move by the council is its forceful defence of the Code of Conduct for Journalists in a ruling delivered on April 12 by the Complaints Division in ‘The Aids Law Project vs. Radio Africa and Ciku Muiruri’ case. With that decision, the council seems to be sending out a powerful signal to media people that adherence to the straight and narrow of journalism is not optional.

Facts 

The case concerns a broadcast aired by Classic 105 FM on October 21, 2010, in its popular show ‘Busted’, which is hosted by Ciku Muiruri. That particular episode, which came to be known as “Oh, my God!”, was the talk of the town for months.

The show is about catching cheating spouses or lovers. In the episode, Ciku impersonated the wife of a supposedly cheating man who was allegedly the boss of the woman he was having the extra-marital affair with. The show presenter called up the ‘other woman’, who denied everything. But Ciku threw her into hysteria when she told her that the philandering husband was HIV positive.

The relevant excerpts of the conversation in the broadcast, as presented to the MCK, were as follows:

Ciku (Mama Pat): You are not having an affair with my husband?

Agnes (cheating woman): No. No I can't do such a thing.

Ciku: Now, Agnes , you need to know I haven't called to fight with you and I have not called to make any accusations. I just called to give you some information which I think is going to help you. You know I am a saved woman and I let God guide me in all decisions I make and everything I do. I just called to warn you that my husband has been diagnosed with something very serious.

Agnes: What is it?

Ciku: He’s HIV positive. He is positive he has also infected me. I am also positive.

On 1 November 2010, the Aids Law Project, a non-governmental organization that deals with legal issues surrounding HIV/AIDS in Kenya, lodged a complaint with MCK against Ciku and Radio Africa Group, the owners of Classic 105.

ALP argued that the broadcast of the HIV status of a person without their consent on national radio breached the person's right to privacy as provided for under Article 31(c) the Constitution. Even though Ciku had not fully disclosed the identity of the person, the information supplied was enough to enable friends and close associates of the person to easily speculate or even correctly identify that person.

The complainant averred that radio has immense capacity to influence and shape opinions of the general public. Thus even though the person alleged to be infected with HIV may not have been in fact infected, the broadcast was in total disregard of the right to privacy of a HIV-positive person and promoted stigma against infected persons.

Moreover, the “casual, reckless and negligent manner” in which Ciku and Radio Africa purported to disclose the HIV status of a person on national radio was an offence under the HIV and AIDS Prevention and Control Act .

Further, ALP alleged that broadcast contravened the Media Act by breaching media ethics. The complainant also reported that the particular clip was subsequently used as promotional material by Classic 105 FM for its show 'Busted', which was in extremely bad taste.

Radio Africa filed their response on 5 April 2011. They admitted that the broadcast was indeed aired, but argued that the broadcast was not inaccurate or misleading as listeners were fully aware at all times that Ciku was not in fact the wife of the allegedly cheating husband. Moreover, the broadcast did not reveal the HIV status of any person because Ciku assumed the character of a wife whose actual HIV status remained deliberately hidden throughout the broadcast.

The respondents further observed that the only person for whom the information in the said broadcast could possibly be inaccurate or misleading, and who could have legal capacity to bring a complaint, was the woman who was allegedly having an extra-marital affair with the cheating spouse. But she had not complained. Nor was ALP acting for her.

With regard to the breaches of the Code, Radio Africa argued that Ciku was justified, within the meaning of Article 8 of the Code, to use subterfuge to obtain the information in the broadcast since that information could not be obtained by any other means. They averred that the caller who publicly requested Ciku to call her allegedly cheating husband was constitutionally entitled to information concerning her family. So Ciku and Radio Africa were justified, as the agent of the caller, to obtain that information for her through the means they utilised.

On the issue of privacy, the respondents argued that at no time was the full identity of the wife revealed to listeners. The right to privacy subsists in a private individual and is not a collective right. ALP could not therefore purport to bring a complaint for breach of the right to privacy of people infected with HIV in general. The complainant's argument that even though the person alleged to be infected with HIV was not infected, the broadcast was in disregard to the right to privacy of the HIV positive person, was baseless and an abuse of the procedures for dealing with complaints.

At the hearing, ALP called one witness and Ciku appeared as a witness for Radio Africa.

In further submissions to the Commission, ALP reiterated that they were a juridical person with capacity to sue and be sued and therefore had capacity to institute a complaint against the respondents on the basis of Section 26(1) of the Media Act, which provides that any person aggrieved by

(a) any publication, or any conduct of a journalist or media enterprise or the Council;

(b) anything done against a journalist or media enterprise that limits or interferes with the Constitutional freedom of expression of such journalist or media enterprise, [can] make a written complaint to the Council setting out the grounds for the complaint, nature of the injury or damage suffered and the remedy sought.

In their written submissions, the respondents questioned the complainant’s capacity to file the complaint, the Commission’s jurisdiction to hear the complaint, whether the respondents had breached any provisions of the Act and the Code and whether the complainant was entitled to the reliefs sought.

The Commission found that the complainant indeed had constitutional and statutory capacity to file the complaint on behalf of people living with HIV/AIDS and that the council was empowered by law to enforce the Media Act and the Code of Ethics for the Practise of Journalism in Kenya through the Complaints Commission.

The Commission also found that Ciku had breached the Code by not identifying herself when seeking to obtain information as a journalist. The Commission expressed concern that Radio Africa chose to use HIV/AIDS, which has been declared a national disaster, as a prank to bust an allegedly cheating spouse.

Ciku also admitted recording people without their knowledge, which is against the Code of Conduct for journalists. She did the same for that particular episode of ‘Busted’.

The Commission further found that the respondents breached the right to privacy by intruding into the personal life of individuals without consent, including on health and sexuality matters.

“We have already noted that the manner in which HIV/AIDs came out in this case was not with a view to furthering the fight against the disease, which would be in public interest. HIV/AIDS in this complaint came out as a prank. This is no public interest,” the Commission said.

The names Nicholas, Agnes and Mama Pat were used without any attempt to distort their voices to avoid identification, the commission found. Ciku had admitted during her testimony that the names she used in the broadcast Nicholas, Agnes and Mama Pat were real, which was a breach of media ethics.

Although Ciku alluded to their having an in-house policy on privacy and the conduct of shows at Radio Africa, the commission said it was not clear what that in-house policy was, as Ciku admitted to not having heard of the Media Act and Code of Conduct for the Practice of Journalism in Kenya.

“The Commission finds this worrying as it explains the breaches of the Code of Ethics. The Commission urges the respondents to immediately familiarize themselves with the Media Act and Code of Conduct for the Practice of Journalism so as to avoid breaches in future.”

Following these findings, the commission ordered Radio Africa to pay a fine of Sh200,000 for Ciku’s failure to identify herself when seeking information as a journalist. It also ordered the group to pay another Sh200,000 for Ciku’s conduct of recording interviews and phone conversations without seeking consent.

Radio Africa was also ordered to pay Sh200,000 for intrusion and inquiries into individuals’ private life without seeking consent or explaining public interest involved.

Another fine of Sh200,000 was imposed for Ciku’s failure to apply caution in use of names to avoid harming persons concerned in violation of Clause 12 of the Code of Conduct.

Read the full ruling at http://www.mediacouncil.or.ke