These are dark days for Kenya; just as we celebrate 50 years of independence our freedom is once again threatened. Democracy’s demise looms and draconian dictators are trying to get their tenterhooks in our hard-earned freedoms. Here we are, right at the turning point, socially economically and politically, just about to open ourselves up to be worthy as a global competitor and then the vices that come with power and greed strike again.
It all begins with politicians trying to abuse their power. First they tried to increase their salaries, going against the salary and remuneration commission by setting up their own commission to regulate this. Here they were, directly after their campaign promises trying to get more from a struggling country. Protests ensued and the media went to town. Caricatures of greedy politicians and articles pointing out these discrepancies splashed! They even got a new nickname “MPigs”. During this time every story involving corrupt politicians was highlighted especially the racy ones… The deputy president used a plane to take him around African states, the MP’s were seen in Amsterdam finishing their per Diem on ‘ladies of the night’ and the next day it was headline news. This riled up the politicians to no end.
Then Westgate happened. This was very serious, however, there was misinformation from the Government and the real story wasn’t told. The media got their hands on the story and in the name of public interest released the story as it unfolded. The discrepancies and the lies were plain to see and the government was now in the hot seat again. The public started asking questions. What are the implications of this? How safe is our country? How big is the cover up? How corrupt is our army? These were some of the questions asked. What became apparent however was the role the media plays in educating and informing the public s. This was a threat to the politicians and as the Westgate saga unfolded and more unfortunate truths were brought to light our leaders became more and more uncomfortable.
The solution to the problem?
Well according to the politicians the solution was to pass a draconian law that curtailed free speech. They passed a bill proposing to fine media houses and journalists individually if they wrote stories that didn’t adhere to the new code of conduct that would be dictated by the new commission which would be run by the Government, It could also “make any supplementary or subsidiary orders or directions that it may consider necessary”… Confusing? Well, what that basically means is instead of the independent commission set up by the Media Council of Kenya, the government would set up a Communications and Multimedia Appeals Tribunal to address media complaints which would decide which stories were illegal and then fine the journalists and media houses accordingly. The government would control the media. As (Oluoch) points out “This would appear to fly in the face of Article 5 of the Constitution, which empowers parliament to enact legislation that provides for the establishment of a body that will be “independent of control by government, political interests or commercial interests; reflect the interests of all sections of the society; and set media standards and regulate and monitor compliance with those standards.”
There was an uproar from different media houses.
On November 1st, The Nation published names of the people trying to kill free speech and challenged Uhuru not to assent to these dictatorial laws while exposing the fact that while the debate took place TV coverage was switched off. ‘dark days MP’s pass law to control the media’ In a furious attack on the bill, The Daily Nation newspaper said the bill “puts the country in the same ranks with Zimbabwe, Cuba, Ethiopia and Kuwait” and had set Kenya “firmly on the path of regression into the era of darkness.”
“In one dramatic swoop, parliament has written away the media’s rights,” wrote the paper, a pillar of Kenya’s burgeoning and vibrant independent media.
The Standard pointed out that the new tribunal would limit foreign advertising on local media and that MP’s would vet nominees to the communications authorities ‘democracy under attack’ was their headline.
This all sparked a public outcry and as events unfolded it became clearer and clearer that our system was flawed.
What is the What?
These laws will have far reaching consequences in regards to how the media conducts business and how they handle stories. Development journalism looks at political, economic and social development. Let’s see how these laws will affect the rights of the people and the media. As we look at the implications of these laws, let’s first explore the Universal Declaration of human rights, (UDHR) Article 19 which states:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
Let’s also look at the ICCPR, Article 19 states:
- Everyone shall have the right to hold opinions without interference.
- Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
- The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
The Old Constitution
Section 79 – Protection of freedom of expression:
“(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence.”
The New Constitution, Articles 33, 34, 35:
33. (1) Every person has the right to freedom of expression,which includes—
(a)freedom to seek, receive or impart information or ideas;
(b)freedom of artistic creativity; and
(c) academic freedom and freedom of scientific research.
(2)The right to freedom of expression does not extend to—
(a)propaganda for war;
(b)incitement to violence;
(c)hate speech; or
(d)advocacy of hatred that—
(i) constitutes ethnic incitement, vilification of others or
incitement to cause harm; or
(ii) is based on any ground of discrimination specified or
contemplated in Article 27 (4).
(3) In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.
34. (1) Freedom and independence of electronic, print and all othertypes of media is guaranteed, but does not extend to any expressionspecified in Article 33 (2).
(2)The State shall not—
(a)exercise control over or interfere with any person engaged in
broadcasting, the production or circulation of any publication
or the dissemination of information by any medium; or
(b) penalise any person for any opinion or view or the content of any broadcast, publication or dissemination.
(3) Broadcasting and other electronic media have freedom ofestablishment, subject only to licensing procedures that—
(a) are necessary to regulate the airwaves and other forms of signal distribution; and
(b) are independent of control by government, political interestsor commercial interests.
(4) All State-owned media shall—
(a) be free to determine independently the editorial content of their broadcasts or other communications;
(b) be impartial; and (c) afford fair opportunity for the presentation of divergentviews and dissenting opinions. (5) Parliament shall enact legislation that provides for theestablishment of a body, which shall— (a) be independent of control by government, political interestsor commercial interests;
(b) reflect the interests of all sections of the society; and(c) set media standards and regulate and monitor compliance with those standards.
35. (1) Every citizen has the right of access to—
(a) information held by the State; and
(b) information held by another person and required forthe exercise or protection of any right or fundamentalfreedom.
(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.
(3) The State shall publish and publicise any important informationaffecting the nation.
Why did they come up with these draconian laws? Do these laws have a positive or a negative impact? Are these laws realistic? And what could possibly be the motive?
What is The Kenya Information and Communication Bill, 2013 about?
The Government will set up a body, The Communications and Multimedia Appeals Tribunal to handle issues pertaining to media
- A Journalist found to have violated any information-related law will be liable to pay a fine of over Kshs 1 million with the affected media house paying 20 million shillings.
- The body has the mandate to adjudicate on complaints by any person in stories carried in the newspapers, the conduct of journalists, and other matters that are likely to hinder the practice of journalism in the country.
- The tribunal can also “recommend the suspension or deregister the journalist involved.”
- Under the new law, local media houses will be required to have at least 45 percent of local content in their programming during the day.
- Media houses will also have 18 months to terminate advertising contracts from foreign firms to meet the prescribed quota.
- Broadcasters licensed to distribute Radio and TV programme services shall make sure that 45 per cent of programmes and advertisements broadcast on TV and radio on any given day comprise local content
According to an article by (Wanambwisi) “The bill was passed a week after Inspector General of Police David Kimaiyo summoned Standard Group CEO Sam Shollei and KTN investigative journalists Mohammed Ali and Allan for questioning over an expose they documented from CCTV footage obtained following the Westgate Shopping mall terror attack that claimed over 70 lives. “This article goes on to describe how “The order was however reversed by President Uhuru Kenyatta, who later defended Kimaiyo, saying he was not out to oppress the media.”
The Human Rights Watch (Bekele), in an article dated November 12th, pointed out that ‘The new laws would undermine basic human rights’ he goes on to say “These new laws are an attempt to undermine freedoms of expression and association in Kenya, “Kenya’s leaders should act swiftly to prevent these bills from becoming law and focus on the country’s real challenges, like police reform and accountability.”
Bekele also points out that our involvement in the ICC and the impending doom that these laws propose go hand in hand with our president’s current case at The Hague. He points out that “The laws come as Kenya’s human rights defenders and nongovernmental organizations are experiencing increasing hostility, harassment, and threats, particularly individuals and organizations viewed as supportive of the International Criminal Court (ICC) investigations in Kenya.”
It does seem quite convenient doesn’t it? Especially considering that in the wake of the Westgate attacks our president was seen rallying up signatures from African Union states to avoid his hearings at The Hague. Considering his campaign promises and his vow toward transparency and honesty, our president does seem to have strayed a little off the path prescribed by his manifesto. As one Nation journalist, Mutuma Mathiu writes, “By silencing the media, politicians know they can do whatever they like with impunity. No one will ever know.” describing the Kenyan media as a key source of checks and balances in public life.
As I come to my conclusion, after exploring the different tangents this argument has to offer, I am impressed yet again by (Oluoch), who phrases it perfectly.
The law is being seen as reflective of official thinking within the regime of Uhuru Kenyatta. He brings to the fore that “Of specific concern to the media fraternity is Article 5(b) 2 of the Bill, which says that freedom of the media and freedom of expression may be limited and shall not extend to situations where the media spreads propaganda for war, incites the public to violence or spreads hate speech. The devil here will be in the exact definition of these offences, with fears that interpretation may take on the hue of the government of the day.”
During these tumultuous times even as we celebrate 50 years of independence the tough questions must be asked. We need to ask the questions Kunczic would ask.Is this government allowing the fourth estate its freedoms as defined by law? What about the people and their right to information, isn’t that relevant? If not, how far will the country regress because of this?
As he protests begin today and the media takes the government to court, I cant help but think that we have a long way to go and the freedoms once shown by our pseudo democracy are starting to show for the cracks that they were. We may have shaken off colonialism but the journey, really, has only begun.