27.Establishment of the Complaints Commission
(1) There is established a Complaints Commission which shall consist of seven members appointed in accordance with this section.
(2) The provisions of section 7(2), (3), (4), (5), (6), (7) and (8) shall apply mutatis mutandis to the appointment of members of the Commission.
(3) After carrying out interviews, the selection panel shall select one person qualified to be appointed as chairperson and six persons qualified to be appointed as members of the Commission, and forward the names to the Cabinet Secretary.
(4) The Cabinet Secretary shall, within seven days of receipt of the names, by notice in the Gazette, appoint a chairperson and six members of the Commission.
(5) The Cabinet Secretary may, in writing, reject any nomination on reasonable grounds whereafter the Cabinet Secretary shall communicate the decision to the selection panel.(6)Upon receipt of the notice of rejection under subsection (5), the selection panel shall select another person from the list of shortlisted applicants and submit his or her name to the Cabinet Secretary for appointment.
Plain English Summary
This section establishes a seven-member Complaints Commission, detailing their selection process and appointment by the Cabinet Secretary. The selection panel interviews candidates, submits names to the Cabinet Secretary, and the appointees are Gazetted within seven days, with the minister having the power to reject a nominee for cause.
28.Membership of the Complaints Commission
(1)The Complaints Commission shall consist of—
(a) a chairperson, who shall be a person who holds or has held a judicial office in Kenya or who is an advocate of the High Court of Kenya of not less than ten years standing; and
(b) six other persons with knowledge and experience in any one of the following areas—
(i) journalism;
(ii) media policy and law;
(iii) media regulation;
(iv) business practice and finance;
(v) the performing arts or entertainment;
(vi) advertising practice; or
(vii) related social sciences.
(2) The members of the Complaints Commission shall, at their first meeting, elect a vice-chairperson of opposite gender from amongst themselves.
Plain English Summary
The Complaints Commission is made up of a chairperson and six members. The chairperson must be a current or former Kenyan judge, or a lawyer who has worked with the High Court for at least ten years. The other six members must have professional experience in areas like news reporting, media laws, business finance, entertainment, advertising, or social sciences. During their very first meeting, these members must vote for a vice-chairperson who is a different gender than the chairperson.
29.Appointments to the Complaints Commission
(1) The appointments to the Complaints Commission shall be done in a fair, transparent and competitive manner based on merit, suitability and competence.
(2) In selecting persons for appointment as chairperson and members of the Commission, the selection panel shall ensure that equal opportunities are accorded to persons with disability and that not more than two-thirds of the members of the Commission are of the same gender.
(3) The names of persons appointed as members of the Commission shall be published in the Gazette, and they shall before assuming office, take an oath or solemn affirmation before a judge of the High Court.
(4) The members of the Commission shall hold office for a period of three years and shall be eligible for re-appointment subject to a maximum of two terms.
(5) A person shall cease to be a member of the Commission only in terms of section 13(1) of this Act.
(6) Whenever a vacancy occurs in the Commission, the Commission shall notify the Cabinet Secretary at once, who shall, as soon as reasonably practical, initiate the process of filling the vacancy in accordance with section 27 of this Act.
Plain English Summary
The hiring process for the Complaints Commission must be open, fair, and based completely on how well the applicants can do the job. The panel must give equal chances to people with disabilities and ensure that no more than two-thirds of the team are of the same gender. Once chosen, the names of the members must be printed in the Gazette, and they must swear an official oath of honesty before a High Court judge before starting work. Members stay in office for three years and can only be chosen again for one more term. If a member leaves early, the Commission must tell the government minister immediately so the hiring process can start again to fill that empty spot.
30.Independence of the Complaints Commission
In performing its functions or exercising its powers, the Complaints Commission shall be independent in its operations and shall be guided by the provisions of Article 159 of the Constitution.
Plain English Summary
The Complaints Commission must do its work independently without any outside control or pressure. When settling disagreements and making choices, the Commission must follow the fairness rules written down in Article 159 of the Constitution, which requires courts and public panels to give justice to everyone without delays or unfair technicalities.
31.Functions of the Complaints Commission
The functions of the Complaints Commission are to—
(a) mediate or adjudicate in disputes between the government and the media and between the public and the media and intra media on ethical issues;
(b) ensure the adherence to high standards of journalism as provided for in the code of conduct for the practice of journalism in Kenya; and
(c) achieve impartial, speedy and cost effective settlement of complaints against journalists and media enterprises, without fear or favour in relation to this Act.
Plain English Summary
The Complaints Commission has three main jobs to perform. First, they listen to and resolve moral or behavioral disagreements between the government and media houses, between the public and the media, or between different media companies. Second, they make sure all reporters follow the official rules and code of conduct written for Kenyan journalists. Finally, they must fix complaints against reporters and media companies quickly, cheaply, and fairly without favoring anyone or being afraid of powerful people.
32.Powers of the Commission in discharge of functions
The Commission shall have all the powers incidental to and necessary for the effective discharge of its functions under this Act and any other written law and shall—
(a) establish and maintain an internal mechanism for the resolution of disputes;
(b) prescribe procedures for determination of disputes relating to the media;
(c) receive, investigate and deal with complaints made against journalists and media enterprises;
(d) summon and receive information of evidence relating to any matter.
Plain English Summary
The Commission is given all the necessary legal powers to carry out its work effectively under this law. To solve issues in the media sector, it can create and run its own internal systems for fixing disagreements, set official step-by-step procedures for handling media cases, and directly receive and investigate complaints made against reporters and media companies. Finally, it has the authority to order people to appear before it and force them to hand over information or physical evidence linked to any case under investigation.
33.Powers of the Complaints Commission
(1) The Complaints Commission may, by notice in writing, require any person to—
(a) give to the Complaints Commission reasonable assistance in the investigation of a complaint made under this Act; and
(b) appear before the Complaints Commission for examination concerning matters relevant to the investigation of any complaint made under this Act.
(2) The Commission shall not be bound by the rules of evidence as set out in the Evidence Act (Cap. 80).
(3) Except as expressly provided for in this Act or any regulations made pursuant to this Act, the Complaints Commission shall regulate its own procedure.
Plain English Summary
The Complaints Commission can send a written note to order anyone to help them investigate a complaint or show up in person to answer questions about a case. When holding these meetings, the Commission does not have to follow the strict, complicated court rules about what counts as evidence in a normal trial. Instead, the Commission is allowed to create and follow its own step-by-step procedures, as long as they follow this law and its regulations.
34.Complaints
(1)A person aggrieved by—
(a) any publication by or conduct of a journalist or media enterprise in relation to this Act; or
(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,
may make a written complaint to the Complaints Commission setting out the grounds for the complaint, nature of the injury or damage suffered and the remedy sought.
(2) A complaint under section 31 may be made—
(a) orally, either in person or by any form of electronic communication; or
(b) in writing, given to the Registrar of the Complaints Commission setting out the grounds for the complaint, nature of the injury or damage suffered and the remedy sought.
(3) Where complaints are oral, the Commission may require them to be reduced in writing within seven days, unless it is satisfied there are good reasons for not doing so,
(4) A complainant shall disclose to the Commission—
(a) the complainant’s name and address; and
(b) other information relating to the complainant’s identity that the Commission reasonably requires.
(5) Despite subsection (4), the Commission may—
(a) keep information provided by a complainant confidential if there are special circumstances or the Commission considers it is in the complainant’s interests to do so; or
(b) accept an anonymous complaint concerning an issue of public interest, or where no clearly identifiable person or group is affected.
(6) The Commission may ask a complainant to provide more information about the complaint within a reasonable time fixed by the Commission.
(7) The Commission may at any time require a complaint or information provided by a complainant to be verified by the complainant by oath or statutory declaration.
(8) Without prejudice to the functions of the Council set out in section 6 of the Act, the Council may take up a complaint on its own initiative, and forward the same to the Commission for determination where in its opinion the complaint has public interest implications.
(9) The Commission may refer a complaint made under subsection (1) to the Communications and Multimedia Tribunal established under the Kenya Information and Communications Act (Cap. 411A), where the Commission determines that the complaint relates to a matter which falls within the mandate of the Tribunal.
Plain English Summary
Anyone who is hurt by what a journalist publishes or how a media company behaves can make a complaint. You can also complain if someone tries to block a journalist from doing their job freely. You can complain by writing a letter to the Registrar or by speaking to the Commission in person or online, though oral complaints must usually be written down within seven days. Your complaint must include your name, address, what went wrong, how you were hurt, and how you want it fixed. The Commission can keep your identity secret to protect you, accept anonymous complaints if it helps the public, and ask you to swear an oath that your story is true. Finally, the Media Council can start an investigation on its own for important public matters, and the Commission can pass your case to the Multimedia Tribunal if it fits their job better.
35.Procedure upon complaint
(1) Upon receipt of a complaint, the Complaint Commission shall notify, in writing, the party against whom the complaint has been made, within fourteen days of receipt of the complaint, stating the nature of the complaint, the breach, act or omission complained of and the date on which the matter shall be considered by the Commission.
(2) The notice referred to in subsection (1) shall require the person against whom the complaint is made to respond to the complaint in writing or appear before it at the hearing of the complaint.
(3) After considering each party’s submissions, the Commission shall then conduct a preliminary assessment to determine the admissibility or otherwise of the complaints lodged within fourteen days.
(4) The Complaints Commission or any of its panels may, after conducting a preliminary assessment of a complaint, and being of the opinion that the complaint is devoid of merit or substance, dismiss such complaint and give reasons thereto.
(5) A party may within fourteen days from the date of dismissal, apply for review or variation of the Commission’s decision under subsection (4).
(6) Where the Commission considers there is a breach of the Act or Code it may facilitate an early resolution of the complaint by a referral to an inter parties mediation process within fourteen days.
Plain English Summary
When the Commission gets a complaint, it must send a written note to the accused person or media company within 14 days to tell them what happened. This note will order them to write back with their side of the story or show up in person for a meeting. The Commission then has 14 days to look at the facts from both sides and decide if the case is worth moving forward. If they find that the complaint has no real proof or value, they can dismiss it completely, but they must explain their reasons. If your case is dismissed, you have 14 days to ask the Commission to change its mind and look at it again. Finally, if they see that a media rule was broken, they can send both sides to a mediation meeting within 14 days to try and solve the problem quickly and peacefully.
36.Mediation of disputes
(1) The chairperson of the Complaints Commission may appoint one of the members of the Commission as a mediator, to attempt to facilitate an early voluntary settlement of the dispute between the parties to the dispute.
(2) The mediation process shall be voluntary and shall be conducted in accordance with the rules made by the Commission under this Act.
(3) The mediation proceedings shall be—
(a) private and confidential; and
(b) conducted on a without prejudice basis.
(4) No person may refer to anything said at the proceedings during any subsequent proceedings, unless the parties agree in writing.
(5) Upon satisfactory determination of a mediation meeting, the mediator shall cause to be signed by both parties a certificate signifying acceptance of the decision which shall be adopted as a decision of the parties in the dispute.
(6) No person, including the member who acted as mediator, may be called as a witness during subsequent proceedings in the Commission or in any court to give evidence about what transpired during the previous mediation meetings.
(7) The mediation rules and procedure made pursuant to this section shall provide for—
(a) the role and responsibilities of the mediator;
(b) the roles and responsibilities of the parties;
(c) the indemnification of the mediator in case of any claims for damages that may arise in any way from the mediation;
(d) the protection of confidential information disclosed or obtained during mediation;
(e) the inadmissibility in any legal proceedings of any statements made during the course of proceedings;
(f) the settlement of the disputes in accordance with the Act and Code of Conduct;
(g) the acceptance of the settlement and issuance of a certificate of acceptance of settlement;
(h) the binding nature and the admissibility of the settlement agreement in court for enforcement purposes; and
(i) the costs of the mediation.
Plain English Summary
The chairperson of the Commission can choose a member to act as a mediator and help both sides settle their disagreement peacefully and voluntarily. These talks are kept strictly private and confidential, meaning nothing said during the meeting can be used later in court or in front of the Commission, and the mediator cannot be called as a witness. If both sides agree on a solution, they will sign an official certificate to accept the choice, making it a binding agreement that can be taken to court for enforcement. The Commission's official rulebook sets out the costs of these talks, protects all shared secrets, protects the mediator from being sued for damages, and ensures the final agreement follows the media's code of conduct.
37.Hearing of disputes
(1) Where the mediation fails or the parties or either of them objects to any mediation efforts, the Commission shall set down the complaint for determination and issue a date on which the matter shall be determined by the Complaints Commission after a full hearing.
(2) The chairperson of the Complaints Commission may establish hearing panels each consisting of three members of the Commission to deal with, hear and determine the Complaints admitted for hearing.
(3) The panels established under subsection (1) shall exercise all the powers and shall perform all the duties and functions of the Complaints Commission in relation to any matter before the panel.
(4) Members of a panel established under subsection (1) may, if necessary, consult with other members of the Complaints Commission for purposes of ensuring consistency of decisions of the Commission.
(5) The Complaints Commission shall, having heard the matter the subject of the complaint, make a report, issue any decision as it deems appropriate and give directions in connection with the complaint, and shall publish its findings if it considers it in the public interest to do so.
(6) The Complaints Commission shall communicate its decision to the parties concerned within seven days from the time the decision is made.
(7) The Complaints Commission shall conduct its hearings in public unless the Commission upon recorded compelling reasons certifies any particular session as closed.
(8) The Complaints Commission may publish or publicize its decision made under this section in any case where it thinks it appropriate to do so.
Plain English Summary
If a mediation meeting fails or if either side refuses to try mediation, the Commission will schedule the complaint for a formal hearing. The chairperson can set up smaller hearing panels of three members to listen to and decide on these cases. These panels have all the powers of the full Commission and can talk to other Commission members to make sure their decisions match up with past cases. After listening to everyone, the panel will write a report and issue its final decision. They must tell both sides their decision within seven days and can publish their findings if it helps the public. Finally, all hearings must be open to the public unless the Commission has a very serious, recorded reason to hold a secret or closed session.
38.Decisions of the Complaints Commission
(1) The Complaints Commission or any of its panels may, after hearing the parties to a complaint—
(a) order the offending party to publish an apology and correction in such manner as the Commission may specify;
(b) order the return, repair, or replacement of any equipment or material belonging to a journalist confiscated or destroyed;
(c) make any directive and declaration on freedom of expression;
(d) issue a public reprimand of the journalist or media enterprise involved;
(e) order the offending editor of the broadcast, print or on-line material to publish the Commission’s decision in such manner as specified by the Commission;
(f) impose a fine of not more than five hundred thousand shillings on any respondent media enterprise and a fine of not more than one hundred thousand shillings, on any journalist, adjudged to have violated the Act or Code of Conduct, where upon such a fine shall be a debt due to the Council and recoverable as such;
(g) in its reasons for its findings, record a criticism of the conduct of the complainant in relation of the Complaint, where such criticism, is in its view, warranted;
(h) recommend to the Council the suspension or removal from the register of the journalist involved;
(i) make any supplementary or ancillary orders or directions that it may consider necessary for carrying into effect orders or directives made.
(2) The Complaints Commission or any of its panels may make any or a combination of the orders set out in subsection (1).
Plain English Summary
After listening to both sides, the Commission or its panels can hand out punishments or rules to fix the problem. They can order the wrongdoer to print or broadcast an apology and a correction, tell an editor to publish the Commission's final decision, or publicly scold the reporter or media company. If a reporter's tools were taken or broken, the Commission can order them to be returned, fixed, or replaced. They can also give out official statements protecting free speech, fine a media company up to 500,000 shillings, and fine an individual journalist up to 100,000 shillings. If the person who complained behaved badly, the Commission can criticize them in their final report. Finally, they can recommend that a reporter be suspended or banned from working, and they can make any extra rules needed to ensure their orders are followed completely.
39.Allowances of the chairperson and members of the Complaints Commission
The chairperson and members of the Complaints Commission shall be paid such allowances as the Salaries and Remuneration Commission may determine.
Plain English Summary
The chairperson and the board members of the Complaints Commission will receive travel and meeting payments for their work, but the exact amount of money they get must be decided by the official Salaries and Remuneration Commission.
40.Protection of the Complaints Commission from liability
A member of the Complaints Commission shall—
(a) be free from any criminal or civil liability for anything done or said in his capacity as a member of the Commission; and
(b) not be subject to court summons to give evidence on any proceedings before the Commission or any of its panels.
Plain English Summary
Members of the Complaints Commission have special legal protections to help them do their jobs without fear. They cannot be sued or prosecuted for anything they say or do while performing their official duties. Additionally, a court cannot force them to show up as witnesses to give evidence about any of the cases or hearings handled by the Commission.
41.Record of proceedings
The Complaints Commission shall keep or cause to be kept a record of all proceedings of the Complaints Commission.
Plain English Summary
The Complaints Commission must write down and save an official, permanent record of everything that happens during its meetings, hearings, and legal proceedings.
42.Appeals
(1) A person aggrieved by a decision of the Council may appeal to the Complaints Commission against that decision in such manner as may be prescribed.
(2) A party aggrieved by the decision of the Complaints Commission may, after thirty days after the Commission has made its decision, apply to the High Court for such orders as the court may, in exercise of its jurisdiction under Article 165(6) of the Constitution, think just.
Plain English Summary
If you are unhappy with a choice made by the Media Council, you can appeal that decision by taking it to the Complaints Commission. If you still do not agree with the choice made by the Complaints Commission, you have 30 days to challenge it in the High Court, where a judge can issue a fair order to solve the problem.
43.Decisions of the Commission to be final
Where no application is made to challenge the decision of the Commission within thirty days of the date of the decision, the decision of the Commission shall be final and binding to the parties.
Plain English Summary
If nobody goes to court to challenge the Commission's choice within 30 days, the decision becomes completely final. This means both sides must follow the ruling, and they are not allowed to argue against it or try to change it anymore.
44.Procedures of the Complaints Commission
Except as expressly provided in this Act or any regulations made thereunder, the Complaints Commission shall have power to regulate its own procedure.
Plain English Summary
The Complaints Commission has the power to create and follow its own step-by-step guidelines for how it runs its meetings and hearings, as long as those choices do not go against anything specifically written in this law or its official rulebooks.