Media Complaints Commission Rules Media Council Acted Beyond Its Powers

Nairobi, September 17 – In a major determination that clarifies the roles of Kenya’s media oversight bodies, the Media Complaints Commission (MCC) has found that the Media Council of Kenya (MCK) exceeded its statutory mandate by investigating and sanctioning journalist Josiah Omolo Odanga. The case, which stemmed from a physical altercation between journalists, has established a clear boundary between the regulatory functions of the MCK and the adjudicative duties of the MCC.

The matter began with an incident on January 20, 2024, at Karariv Primary School in Siaya. Mr. Odanga, a journalist, reported that he was verbally and physically assaulted by two colleagues, George Amolo and Mary Goretty Adhiambo Juma, while on assignment. He sustained a head injury and filed a report with the police, leading to a criminal case.

In response, the MCK launched an investigation. Its Western Regional Coordinator, Evans Teddy, conducted interviews with the involved parties. Subsequently, the MCK issued press statements on January 23 and 25, 2024, which referenced a dispute over “handouts” and condemned the conduct of all three journalists. The MCK then suspended their press accreditations. For Mr. Odanga, this resulted in an indefinite suspension without pay from his employer, the Radio Africa Group.

Mr. Odanga challenged the MCK’s actions on multiple fronts. First, he pursued a defamation case in the Siaya Magistrates’ Court, arguing that the press statements were false and damaging. On September 4, 2024, the court ruled in his favour, ordering the MCK to retract the statements, issue an apology, and pay him Ksh 3 million in damages. Seeking a broader institutional correction, he then filed a formal complaint with the Media Complaints Commission, the body he argued was the proper and legally mandated forum for such a dispute from the outset.

Read more article: Journalist Wins KSh 3 Million in Defamation Lawsuit Against Media Council of Kenya

At the heart of his complaint was a question of jurisdiction. Mr. Odanga contended that the Media Council Act creates a distinct separation of powers: the MCK is responsible for setting standards and facilitating dispute resolution, while the MCC is explicitly empowered to mediate or adjudicate complaints against journalists and media enterprises. He argued that the MCK’s investigation, its public pronouncements, and its decision to suspend accreditations were adjudicative functions reserved for the MCC.

The MCK defended its actions, stating that its mandate under Section 6 of the Media Council Act includes developing ethical standards and facilitating dispute resolution. It argued that the absence of a fully constituted Complaints Commission at the time necessitated its intervention to address the professional misconduct and protect the integrity of the media profession.

After considering evidence and submissions from both sides, the majority (4 out of 5) of the MCC panel delivered its determination. It engaged in a detailed analysis of the Media Council Act, focusing on the specific language defining the functions of each body.

The Commission found that the verb “facilitate,” used in the MCK’s mandate, means to make easier or enable a process, not to conduct the process itself. In contrast, the MCC’s mandate to “mediate or adjudicate” implies a definitive, quasi-judicial action. The ruling stated that the MCK’s actions, including conducting interrogations, summoning parties to a meeting with its CEO, and imposing sanctions, were “adjudicatory in nature” and therefore “ultra vires,” or beyond its legal power.

The MCC declared the MCK’s process null and void and ordered it to retract the two press statements, issue an unqualified apology to Mr. Odanga, and validate his journalistic accreditation. The Commission did not order his reinstatement to his former job, noting that his employment was a separate matter between him and his employer.

The decision was not unanimous. In a dissenting opinion, MCC Chairperson Demas Kiprono agreed that the MCK’s process was flawed but disagreed with the majority’s core finding. Kiprono argued that a regulator must possess inherent administrative powers to investigate and impose temporary sanctions to uphold professional standards, especially in the public interest. He further contended that the problem was not “that” the MCK acted, but “how” it acted. He would have quashed the sanction on procedural grounds and directed the MCK to develop clear regulations for future administrative actions, rather than eviscerating its power to act entirely. He stated that the majority’s interpretation would hinder the MCK’s ability to function effectively as a regulator.

The determination provides a definitive legal clarification on the limits of the MCK’s powers and reinforces the MCC’s role as the sole arbiter of media disputes in Kenya. It underscores the principle that statutory bodies must operate strictly within the boundaries set by the law.

Journalists and media stakeholders welcomed the MCC ruling saying it offers protection from having their professional standing adjudicated by a regulatory body without the due process guarantees of a quasi-judicial tribunal. The industry stakeholders said the ruling has tried to resolve a longstanding ambiguity about the division of powers within the co-regulatory model, and that would ensure that the roles of standard-setter and adjudicator remain separate and distinct.