Kenya at 50

Recently, it was reported that the Cabinet Secretary in the Ministry of Sports, Culture and the Arts, Dr. Hassan Wario has appointed a 10-person committee to finalise work on Kenya’s National Music Policy. This Music Policy Committee will be chaired by the Director of Administration at the Ministry, Mr Wenslas Ong’ayo and comprises two representatives from the related rights collective management organisations (CMOs) namely Suzanne Gachukia (KAMP Board Member) and Angela Ndambuki (PRiSK CEO). Interestingly, there are no representatives from the Music Copyright Society of Kenya (MCSK) not to mention the apparent lack of broad-based stakeholder representation in the committee’s membership. In addition the appointments appear to contravene the two-thirds gender principle in the Constitution.

This committee is mandated with streamlining the entire music industry, reviewing the legal and institutional framework and also recommending implementation plans through the formulation of a robust National Music Policy. We have previously discussed an earlier draft of the policy here. This draft has since been revised and an updated version of the draft policy is available here. This blogpost offers some thoughts on the draft policy for the consideration of the newly appointed Committee.

A general observation that cuts across the entire draft policy is the issue of distribution of functions between the National Government and the County Governments as set out in the Fourth Schedule of the Constitution. In this connection, the policy at numerous sections does not appear to distinguish between the functions of these two levels of Government vis-à-vis the music industry in Kenya.

The Policy Statements on page 6 impose an obligation on the government to promote all forms of cultural expressions. However no reference is made to Article 11 of the Constitution which deals with Culture. The draft policy fails to address the critical issues related to the implementation of Article 11 by all arms of government, in particular the Legislature. According to the Fifth Schedule of the Constitution, the Legislature has until August 2015 to enact legislation in respect of culture. This legislation will have a considerable impact on the music industry therefore this matter ought to be included in the draft policy including appropriate mechanisms for review and consultations with regard to the legislation once enacted.

The Policy Statements on page 11 call for the government to create an enabling environment for the music industry to thrive through the enforcement of the Copyright Act. However it may also crucial for the policy to enumerate some of the key areas of interest for the music industry within the Copyright Act and how these areas can be positively reviewed and strengthened. The same policy statement refers to the introduction of a banderole, which already exists in Kenya and is administered by the Kenya Copyright Board (KECOBO).

The Policy Statements on page 18 refer to the infamous quota of “60% of Kenyan music content” to be enforced against all media owners, however a central definitional issue has not been addressed by the draft policy, namely “what is Kenyan content?” The same policy statement also imposes an obligation on the government to reinforce existing laws and regulations in regard to payment of royalties by the broadcasting houses. This statement would require some elaboration since the Copyright Act and Kenya Information and Communications Act already contain adequate provisions to regulate broadcasting content matters.

The rights of music consumers appear to have been largely ignored by the draft music policy despite the recognition of these rights under Article 46 of the Constitution and the Kenya Consumer Protection Act of 2012. In addition, consumers of music have expressed numerous concerns about the multiplicity of licenses provided under the existing legal framework for collective management of copyright and related rights in Kenya.

Finally Chapter Five of the draft policy proposes the enactment of a piece of legislation on the music industry in Kenya and the establishment of a statutory body known as National Music Board.