Media Watchdog’s Jurisdiction Questioned after Controversial Ruling

Nairobi, September 23 – Media Complaints Commission (MCC) former head and seasoned High Court advocate William Oketch has weighed in on the Commission’s recent determination involving the suspension of journalist Josiah Omolo Odanga, warning that the watchdog may have acted outside its legal mandate. In a detailed critique, Oketch argues that the ruling reveals a fundamental jurisdictional flaw that threatens the credibility of Kenya’s media self-regulation system.

According to Oketch, the MCC erred by admitting and ruling on a complaint directly against the Media Council of Kenya (MCK) itself. Under Section 34 of the Media Council Act, the Commission is empowered to hear complaints only against two categories: a journalist or media enterprise, or someone who has restricted their freedom of expression. The MCK, he points out, is neither. “The first part deprives the Commission of jurisdictional mandate because the MCK is neither a journalist nor a media enterprise,” Oketch writes.

The case stemmed from a January 2024 incident in Siaya, where Odanga reported being assaulted by two colleagues while on assignment. After a police report was filed, the MCK conducted its own inquiry, issued press statements citing “handouts” as the source of the clash, and suspended accreditation for all three journalists. For Odanga, this sanction triggered an indefinite suspension without pay by his employer, Radio Africa Group. In doing so, the MCK blurred the line between its regulatory role and the adjudicative powers reserved for the MCC, blurring that would later form the crux of the jurisdictional dispute.

Read more here: Media Complaints Commission Rules Media Council Acted Beyond Its Powers

It is this blurring, Oketch argues, that rendered the entire process ultra vires, a legal term for acting beyond one’s powers. By framing the matter as a “complaint” against the regulator itself, the Commission stepped into a legal void it was never meant to occupy. If the complainant was aggrieved by a decision of the MCK, such as accreditation or public statements, the proper legal path would have been an appeal under Section 42 of the Act, or a judicial review application before the High Court.

Instead, the Commission proceeded to hear the matter, creating what Oketch calls a cascade of further errors. It ordered the Council to retract press statements and issue an apology, despite Section 22 of the Act shielding the MCK from liability for good-faith actions carried out in its official mandate. It also questioned whether the Council Secretariat had exceeded its jurisdiction; an issue Oketch stresses belongs exclusively to the High Court. “The Commission or any subordinate adjudicative body… cannot sit in judgment on the scope of powers of another related body. That is the domain of the High Court,” the opinion states.

The MCC decision, however, 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.

Read more here: Journalist Wins Sh. 3 Million in Defamation Lawsuit Against Media Council of Kenya

He stressed that the problem was not that the MCK acted, but how it acted. In his view, the sanction should have been quashed on procedural grounds, and the MCK directed to craft clear regulations for future administrative actions. By stripping the Council of any such power, the majority ruling risked leaving the MCK hamstrung. Kiprono warned that this interpretation would hinder the Council’s ability to function effectively as a regulator.

The ruling and dissent have stirred debate within media and civil society circles. A media rights advocate, who is also a senior editor but asked not to be named because of his close engagement with both the MCC and MCK, said the Commission’s credibility is now at stake. “When the watchdog confuses its own powers, the whole system suffers a crisis of credibility. Journalists need clarity. If the MCC is seen as overreaching, it weakens trust in self-regulation.”

He added that the dissenting opinion raised a real-world concern: “Kiprono was saying, yes, fix the process, but don’t cripple the regulator. In a media environment as fast-moving as Kenya’s, sometimes you need provisional enforcement tools.”

Support for Kiprono’s minority opinion has come from within media circles, where some see his approach as more pragmatic for Kenya’s fast-changing media landscape. Samuel Oluoch, a regular contributor to the Media Stakeholders Forum, a WhatsApp group of journalists, editors, lawyers, and media rights advocates, argued that while the majority opinion exposed the MCK’s overreach, Kiprono’s dissent better captured the realities of regulation. He pointed out that regulators like Ofcom in the UK rely on provisional tools to act quickly in the public interest, and Kenya should consider amending its laws to allow similar “light-touch administrative actions.” For Oluoch, Kiprono’s dissent was not about stripping the MCK of power but about ensuring it acts within fair and clear rules.

Echoing similar view Eric Shimoli, a former Nation Media Group associate editor and now media relations coach, warned that the judgment, if left to stand, could render the Media Council toothless. In his words, a regulator unable to summon or reprimand journalists who breach ethics risks becoming irrelevant in a market already struggling with brown-envelope journalism and declining standards. For Shimoli, the solution is not to muzzle the Council but to strengthen its hand, giving it the authority to tackle ethical lapses before they spiral into full-blown crises.

Kenya is not the only democracy to wrestle with questions of press regulation, but other systems have drawn clearer lines. In the UK, the Independent Press Standards Organisation (IPSO) can only adjudicate complaints against member publishers, not its own board. In South Africa, the Press Council separates the roles of regulator and adjudicator, ensuring no overlap. Even in India, where the Press Council faces criticism for government influence, it does not purport to sit in judgment on its own regulatory body.

Kenya’s framework, by contrast, is caught between narrow statutory limits and growing demands for quick interventions in a volatile digital environment. “Kenya borrowed elements from these models but has allowed ambiguity to creep in,” added the senior editor. “The Odanga case exposes how blurred boundaries can quickly erode legitimacy.” He further summed up the stakes saying: “This confusion plays straight into the hands of those who argue self-regulation has failed. If left unresolved, it could invite statutory controls, which would be far worse for press freedom.”

Oketch’s legal opinion also highlighted governance gaps within the Media Council itself. He notes that substantive actions, such as issuing press statements or administrative sanctions, cannot legally be undertaken by the Secretariat or CEO without express resolutions from the governing board. This concern mirrors recent Supreme Court guidance cautioning public bodies against allowing secretariats to usurp the authority of their boards.

Civil society actors argue that such weaknesses reflect broader governance problems across Kenya. “We have seen this in commissions, parastatals, and regulators, chief executives acting as if their offices confer unchecked powers,” said the senior editor. “The media sector is simply another casualty of poor institutional discipline.”

Journalists, critics, and media rights defenders are divided on what the Odanga ruling means for the future of press regulation in the country. Some view it as a chance to strengthen the system by forcing courts to clarify the boundaries of the Media Council and its Complaints Commission, to ensure clearer rules everyone can trust. Others worry that the decision could entrench delay and confusion, leaving the MCC weakened and ineffective at holding the media accountable.

At stake is the balance between legal formality and regulatory practicality on whether self-regulation remains narrowly confined to handling complaints or evolves into a more proactive framework. For now, both the press and the public remain in limbo, with the case exposing a system at a crossroads, uncertain whether to stand still or adapt to Kenya’s fast-evolving media landscape.

In his ten-page critique, Oketch insists that the fog of uncertainty can only be lifted by the High Court. A judicial determination, he argues, is essential to draw firm jurisdictional lines between the Media Council and its Complaints Commission, ensuring both remain within the law and safeguarding the credibility of Kenya’s fragile media self-regulation model