Increase in the Regulation of Advertisers in Kenya

The County Outdoor Advertising and Control Bill, 2018 (the Bill) was recently passed by the Senate with amendments and referred to the National Assembly to proceed to the Second Reading.

The Bill claims to be targeted at ensuring that advertisers utilizing outdoor advertisement respect the environment and the structures upon which the advertisements are displayed. The Bill also claims to be aimed at bringing a balance between the need to advertise and the need for public safety.  However, an initial reading of the proposed law reveals a lack of specificity in many of its provisions.  

For instance, the Bill provides that in assessing an application for an outdoor advertising licence, one of the considerations shall be whether the proposed advertisement will be “distracting or confusing as to pose a hazard to road users in the vicinity of the advertisement.” The Bill however fails to extrapolate on what amounts to “distracting or confusing”. Additionally, the Bill does not provide a definition for the term “public safety”.

With the lack of clarity on the provisions, and absence of principles to be employed by county officials in assessing advertisements, the law is arguably muddling an already wanting situation by granting county officials absolute discretion.

The Bill as currently drafted increases the risk associated with the advertising business. Categorization of advertisements as “unsafe” may become rampant. Advertisers may also find themselves subject to penalties for contravention of the law by the publishing of advertisements that supposedly pose a risk to “public safety”. The sanctions include imprisonment for a term not exceeding six months and/or a fine not exceeding two hundred thousand shillings.

It is therefore vital to keep observing the progress of the Bill and monitor any further amendments to the proposed law that may provide clarity or pose further challenges to the freedom of expression of advertisers enshrined in the Kenyan Constitution.

By Wambui Mwariri and Rose Njeru