With the Kenyan Parliament seeking to
stifle the media through the Kenya Information Communication (Amendment) Bill 2013 by imposing
stringent fines to media houses and journalists regardless of the fact that the
Kenyan constitution provides for the freedom of expression, the question thus is,
is media law a blessing or a curse?
INTRODUCTION
Media law in
Kenya emanates from the Bill of rights which provides for the freedom of
expression, freedom of communication and media freedom. It guarantees freedom
to hold opinions, receive ideas and information and to receive and relay
correspondence without interference[1].
The question
however is up to what extent do media practitioners and the press enjoys this
freedom? Even though it is claimed that media freedom is only limited in
certain instances such as where a person waives his rights, or for purposes of
defense, public safety, public order, public morality or public health,
protecting the reputations, rights and freedoms of other persons or the private
lives of persons concerned in legal proceedings, preventing the disclosure of
information received in confidence, maintaining the authority and independence
of the courts or regulating the technical administration or the technical
operation of telephony, telegraphy, posts, wireless broadcasting or television1, media freedom is not an assurance since
some ‘powerful’ individuals take advantage of their positions to fulfill their
selfish ends thereby hindering media freedom.
As much as
individuals and media practitioners are at the forefront condemning the
government for limitations of media freedom citing selfish interests on the
part of the government, they have to take into consideration the effects
absolute media freedom would have on both the public and the state, whether
individuals would maintain peace and harmony amongst themselves or whether
absolute media freedom would be of any value to the public.
GROWTH OF MEDIA IN KENYA
To understand
the current situation i.e. the perception of the media by those in power and by
the public whereby the media has been used by some to propagate their selfish
ends and the public perception that the media has been muffled by the
government, it is essential to take a brief look into the growth of media in
Kenya.
Pre-independence
Frank Baritone in the preface to
The Press of Africa[2]
views as paradoxical the fact that as political freedom came to the continent,
so did press freedom disappear. This is due to the fact that the earliest
private press served sociopolitical interests of immigrant races in settled
colonies such as Kenya where whites had a stake in the continued subjugation of
indigenous people. The press was a tool in ensuring that the settler rather
than the African voice was heard by the metropolitan state. The authoritarian
colonial government’s dominant perception of the Press was always that of an
unnecessary evil that deserved close supervision and control[3].
The press was initially a tool
for disseminating government information to citizens more so, White setter
communities. However, the colonial government adopted draconian laws such as
the Newspapers’ Ordinance (1906) to deal with harsh political realities of the
time. The colonial government feared a free and thriving nationalist press that
acted as the mouthpiece for political independence. It thus enacted the Penal
Code in 1930[4].
African leaders realized that the
only way the people’s grievances could be ventilated was through establishment
of indigenous press. Thus the African Nationalist Press was born of political
rather than economic necessity[5]. The breakout of the Mau Mau war and the declaration
of emergency in 1952 gave the colonial government the excuse to ban all
indigenous publications and to intensify propaganda against the Nationalist
Movement.
The colonial government later allowed
publishing of district political association newspapers and also sponsored some
such as Kihoto, a Kikuyu weekly; Thome in Kamba and Ramogi in
Dholuo after lifting the emergency ban and realizing that prospects towards
independence were inevitable. They however undid the gains achieved by enacting
the Books and Newspapers Act in 1960 to control the proliferation of the
nationalist press. They also controlled and censored radio programs since
inception of radio in 1927[6].
Post-Independence
Despite the fact that the
Nationalist Press was pioneered and closely associated with African
nationalism, the onset of independence meant the primary purpose -agitation for
freedom- had been achieved and the new ruling class quickly abandoned it as
they were aware of the power of the Press. They thus set out to manipulate and
control the media for propaganda purposes and were instead more interested in
fulfilling their selfish gains[7]. Media
freedom thus became more of a mirage rather than a reality. For instance,
during Jomo Kenyatta’s era (1963-1978), the independent government was
intolerant towards the Press and enacted the Official Secrets’ Act in 1968 to
deal with a series of leaks that made the government vulnerable to political
pressure. The government also banned the Pan African Magazine because of
fear of internal criticism
The
Moi era (1978-2002), proved to be worse as the government harassed the media
through agitation of the underground press and later banned independent and
critical publications such as Beyond magazine in 1988; the Financial
Review in 1989 and the Financial Review in 1989 among other
publications. The foreign press wasn’t spared either as local media was ordered
to stop publishing news by foreign wire services for allegedly misinforming the
world about events in Kenya. The Voice of Kenya was renamed Kenya Broadcasting
Corporation, designated as a government parastatal and mouthpiece in 1989.
The government published without consultations
The Kenya Mass Media Commission Bill (1995) to regulate the operations of the
mass media; and The Press Council of Kenya Bill (1995) for the registration of
the Press Council of Kenya to regulate the conduct and discipline of journalists
and the mass media even though the repeal of section 2A of the constitution in
1991 – which had ensured one party rule- ushered in plural politics and precipitated
the liberalization of the media and the communication sector.
The
government further aggravated matters by ignoring the Media Bill (1998)
prepared by the Kenya Union of Journalists (KUJ) to help guarantee freedom of
the media, protection of journalists, publishers, broadcasters and right of
access to information[8].
Kibaki’s
administration came into power in 2002 and was purported to be unsure of how to
handle media issues. It created the Office of Public Communication in 2004 to
address the media on critical policy issues. It however had difficult
relationship with an independent, assertive and watchful media. Following media
exposures of the Anglo Leasing Scandal and protracted media stand offs, armed
police raided the Standard Group headquarters in 2004 under the guise of
national security threats. The Kibaki administration was however trying to
guarantee media freedom to some extent. This is clearly illustrated in the Kenyan constitution that guarantees media freedom in section (34)
although the said freedom has some limitations.
Laws governing the Media in Kenya
Laws governing the media in Kenya
are fragmented and exist in different sections of civil and criminal laws.
Sources of press law in Kenya include the Constitution, Statutory Law; and
Common Law. The Constitution of Kenya is the supreme law of Kenya and
guarantees the right to freedom of expression. It however does not mention
freedom of the press and other media and provides limitations of the
fundamental rights and freedoms under vague circumstances thus allowing for
violations of same rights[9].
Although the new Constitution guarantees media freedom, hurdles persist because
the anti-media laws in the statute laws of the land are yet to be repealed and
reformed[10].
Sections of the Statutory Law of
Kenya that deal with media practice include: the Defamation Act, Cap 36; The Penal
Code, Cap 63; The Books and Newspapers Act, Cap 111; Copyright Act, Cap 130;
Preservation of Public Security Act, Cap 57; Public Order Act, Cap 56; Film and
Stage Plays Act, Cap 222 (1962); Chief’s Authority Act, Cap 128; Official
Secrets Act, Cap 187 of 1968; Police Act, Cap 84; Armed Forces Act, Cap 199;
Communication Commission of Kenya Act of 1998; Kenya Broadcasting Act, Cap 221
of 1998, ICT Act of 2007 and the Media Act, 2007 with the Ministry of
Information and ICT, Communication Commission of Kenya, Media Council of Kenya
and the Kenya Film Commission among others being the key media regulators[11].
The legislations pertaining to
media law stipulate the extent to which media practitioners can reach while
exercising their freedom and right to expression. They also state the extent to
which the press can be controlled by the state and outline available penalties
for any defaulters. These legislations
were put in place to ensure that media practitioners disseminate accurate and
balanced information, clean entertainment and are patriotic. Persistence of
these laws in the statute books may however encourage impunity in the
application of these laws.
Role
of the media
An unprecedented public debate
has been raging in Kenya over the role of the media more so after the 2007/2008
post-election violence whereby the media was accused by Religious
Organizations, Civil Society, Government departments and foreign missions of
incitement, promoting stereotypes, misreporting events and general
misrepresentations of issues[12].
Understanding the role of the
media in individuals’ (both public and private persons) lives will in essence
enable individuals to understand the power that the media possesses and thus enable
them decide on whether media regulation is necessary.
A policy briefing by the BBC
World Service Trust notes that over the past 15 years, the media in Kenya have
been increasingly assertive and self-confident. They have played a substantial
role in mediating relationships between citizens and state, in shaping the
democratic dispensation in the country and have transformed how some of the
marginalized people in society access information on issues that shape their
lives[13].
It is noted that the main
function of the media is disseminating information to the masses. In short,
media performs the right to know whereby the masses access information outside
their localities. The press is better at bringing problems to the attention of
the public especially if they work in accordance to the principles and codes of
journalistic practice. The role of the media is not only limited to reporting
and analysis of events. They’re also opinion builders, agenda setters and
impart information to the masses.
A desirable media[14]
It can
be argued that media regulation and censorship is aimed towards a greater good
as perceived by the Situationist Value Orientation that believes that
decisions should be made on the basis of what would cause the least harm and
most good. Media regulation is thus aimed towards achieving a more desirable
media.
The
question however is, just what entails a desirable media? Peter Oriare,
Rosemary Okello-Orlale and Wilson Ugangu in their book; The media we want: the Kenyan Vulnerabilities Study outline what
Kenyans desire to see in the media (based on a research they undertook).
·
Kenyans
desire a free, independent, assertive, vibrant and responsible media that effectively
advances democracy, human rights, good governance and socioeconomic
transformation. Such media would provide platforms for campaigning against the
culture of impunity, a key challenge to Kenya’s political and socioeconomic
transformation.
·
A
professionally run media that promotes respect and adheres to fundamental
principles and global standards of journalistic practice. It should also support
efforts to promote professionalism in journalistic practice; and gather and
provide accurate, fair, balanced and impartial information, education and
entertainment to all Kenyans.
·
A
plural and diverse media that promotes diversity of opinions and responds to
the diverse aspirations and expectations of the entire population.
·
A
media that would promote the Kenyan identity and national cohesion globally; a
media that is sensitive to the welfare of journalists and provides competitive
working conditions.
·
An
independent and assertive public service broadcaster that would discharge its
mandate efficiently and impartially to all Kenyans without fear or favor and accountable
ethnic language radio stations that are not politically captured.
Towards
a desirable media[15]
There isn’t a single strategy
that can be used to ensure that the kind of media desired by Kenyans is
achieved. There however exist recommendations aimed towards accomplishing the
same. They include:
·
Strengthening
professionalism in the journalistic practice through training programmes,
associations and organizations.
·
Strengthen
lobbying and advocacy for the repeal of all anti-media laws alongside the
enactment of a media-friendly constitution and laws, with emphasis on pressurizing
the government to act expeditiously.
·
Intensify
efforts to lobby for the enactment of a Freedom of Information Act to guarantee
greater access to information held by the government and other public bodies
and review sections of the Kenya Information and Communication Act 2008 and the
Media Act, 2007 that inhibit effective operations of the media industry.
·
Building
the capacity of the Media Council of Kenya (MCK) to enable it to effectively
and efficiently act as a regulator for journalistic practice in Kenya.
·
Putting
up capacities for small media organizations, especially ethnic and community
radio stations, to effectively handle interactive live broadcasts as a way of
nurturing a culture for peace journalism. Clear guidelines for monitoring hate
speech and incitement in radio stations should also be put in place.
·
Promote
media literacy as well as other efforts that scrutinize media behavior.
WHY
REGULATE THE MEDIA?
Given the power of the media in
terms of their ability to reach a wide target audience more so through the print
media (newspapers and magazines), the government thought it necessary to limit
the kind of information they disseminated mainly due to purposes of public
interest and security concerns. This move was however in bad light as the
post-independence period (between 1963 and 2003) saw with it total subjugation
of the press whereby some publications were banned and broadcast media had
their licenses revoked. Media censorship is an ironical move as the achievement
of independence was also supposed to guarantee media freedom.
Understanding the reasons for
media regulation will in essence help individuals decipher whether media laws
can be perceived as a blessing or as a curse for media practitioners. The main
underlying reasons for media regulation are:
i.
To protect the
integrity of governments
Every state has security needs
and concerns, which are undeniably legitimate. Certain laws have been put in
place to ensure the government operates efficiently. Besides, the government
must maintain some level of integrity for people to have faith in it[16].
The Official Secrets Act is a legislation that provides for preservation of
state secrets and state security as some information must remain privileged
within time and space for effective functioning of the government as the
release of such information could jeopardize public good. For example, if Kenya
and Sudan decided to train their military to take out the Al Shabaab, such information should remain secured within the
government as its release could mean that Kenya and Sudan are in danger of
potential attacks by the Al Shabaab.
ii.
To protect the
integrity of courts
The law pertaining to the
protection of the integrity of the courts is referred to as the contempt of
court. It refers to any willful disobedience
to, or disregard of a court order or any misconduct in the presence of a court;
any action that interferes with a judge's ability to administer justice or that
insults the dignity of the court.
The
integrity of courts has to be protected because failure to do so may result in
individuals losing trust in the judicial system. The law also prohibits
coverage of court proceedings to some extent as coverage can imperil the
administration of justice- this possibility is weighed against the right to
know on the part of the public[17].
iii.
To enhance
national security
Some information must remain
privileged within time and space as their release could jeopardize public good.
Thus to ensure that national security is maintained, the government enacted
laws such as the Public Order Act, Preservation of Public Security Act,
Official Secrets Act and the Armed Forces Act to ensure that peace and
stability is maintained within the country.
iv.
To prevent
damage to other interests
Limitation of the Freedom of
expression on the part of the media ensures that interests such as public
morals, reputations and rights of private individuals are not infringed on. If
for instance there were no laws governing media conduct, rights of individuals
would be violated as media practitioners would in essence infringe on peoples
rights or even engage in rampant defamation under the guise of seeking and
imparting information to the masses since they would be no consequences for the
same.
CONCLUSION
Media freedom has been an elusive
concept in Kenya with the government using security concerns to clamp free flow
of information. In as much as the government is at the forefront trying to
justify media regulation, they ought to realize the fact that Kenya is a
democratic and not an autocratic state where dictatorship is the order of the
day.
The media plays an invaluable
role in the society and should thus be allowed to report freely and responsibly
on issues as failure to guarantee media freedom creates a leeway for autocracy
whereby those in power refuse to be accountable and responsible manipulating
and controlling the media for propaganda purposes and to fulfill their selfish
gains. Noam Chomsky’s words; “…the issue
is whether we want to live in a free society or whether we want to live under
what amounts to a form of self imposed totalitarianism…” (Noam Chomsky, Media Control: The Spectacular Achievements
of Propaganda) should be taken into consideration by those in support of
media censorship.
Although freedom of the media is
directly captured under Article 34 of the Kenyan constitution and exemplified
in the freedom and independence of electronic, print and all other types of
media with limitations on freedom of expression also applying to media freedom
and the same section further prohibiting the state from exercising control over
or interfering with any person engaged in broadcasting, the production or
circulation of any publication or the dissemination of information by any
medium, the same constitution provides limitations of the fundamental rights
and freedoms under vague circumstances thus allowing for violations of same
rights.
In my view, freedom of expression
by both individuals and the media is a fundamental human right that ought to be
safeguarded as is the case in the United States whereby freedom of expression
is a fundamental liberty guaranteed by the First Amendment of the Constitution
with the courts and legislative bodies being hesitant to impinge on that
freedom. A similar scenario should also be adopted in Kenya.
Although some would argue that absolute
media freedom would cause more harm than good, I am of the opinion that this is
a fallacy brought about by the entrapping of authority whereby individuals are
of the opinion that whatever decisions made by those in power are essentially
the right and best decisions aimed at the better good of the society.
Individuals need to realize the fact that the main aim of media censorship is
to protect private interests of those in power. For instance, the Official
Secrets Act has been used to cover government misdeeds over time. Media freedom
should thus be guaranteed on condition that media practitioners conform to the
codes of journalistic practice and become answerable to the Media Council of
Kenya and the Communications Commission of Kenya.
[1]Okoth-Yogo
Kiboyye. 2010. Introducing Law: Selected
Lectures. www.mu.ac.ke/chisimba/introduction
[2]Frank
Baritone (1979).The Press of Africa:
Persecution and Perseverance, Macmillan Press, London.
[3]David Makali (2004). Media Law
and Practice: The Kenyan Jurisprudence, Phoenix Publishers Limited,
Nairobi, Pg 57
[4] David Makali (2004). Media Law
and Practice: The Kenyan Jurisprudence, Phoenix Publishers Limited,
Nairobi.
[5] Ibid
[6] Ibid
[7] Ibid. Pg 58
[8]
Peter Oriare et al. The Media We Want:
The Kenyan Vulnerabilities Study. WWW.awcfs.org/new/index.php?option=com_docman...
[9]
downloads.bbc.co.uk/worldservice/trust/pdf/Kenya_media_legal_framework.pdf
[10]Peter
Oriare et al. The Media We Want: The
Kenyan Vulnerabilities Study. WWW.awcfs.org/new/index.php?option=com_docman
[11]
Peter Oriare Mbeke. The media, Legal
Regulatory and Policy Environment in Kenya: A historical briefing
[12]
Peter Oriare et al. The Media We Want:
The Kenyan Vulnerabilities Study. www.awcfs.org/new/index.php?option=com_docman
[13] Ibid
[14]Peter
Oriare et al, The Media We Want: The
Kenyan Vulnerabilities Study
[15] Ibid
[16]
Okoth-Yogo Kiboyye. 2010. Introducing
Law: Selected Lectures. www.mu.ac.ke/chisimba/introduction
[17] David Makali (2004). Media Law
and Practice: The Kenyan Jurisprudence; Phoenix Publishers Limited,
Nairobi. Pg 129
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