Media Freedom in Kenya Lecturer: Musakali, Joseph Juma

1. Media Freedom in Kenya Lecturer: Musakali, Joseph Juma

2. Several questions are raised by the assertion that the state can legitimately control the press, namely: (i) Who should define the role of the press? (ii) How much control may the state exercise? and, (iii) What accepted methods and instruments of control should the state adopt?

3. All states in Africa have chosen to become part of the press through state-owned radio and television networks and ownership of newspapers (Mwaura 1980; Ugboajah 1980). In addition, it can be assumed that they participate most actively in determining how the role of the press should be executed. However, and very fortunately, it is still accepted all-round that the function of the press is to inform and to entertain (Elias 1969:122). This is not just a convenience: many would insist that it is a human right — 'the right to know'.

4. The state cannot be trusted to exercise restraint at all times in the performance of its functions. The ideals of democracy, constitutionalism and a free press cannot be left to state discretion. In practice they are usually ingrained in the law as constitutional rights (Terrou and Solal 1972). If this is done, the confines of state actions are easier to delineate and predict

5. The law is the legitimately recognized and accepted method of control. This is not to suggest that states have not used other methods and instruments. It is merely to emphasize that when law is used as an instrument' of control, the action of states and their agents are scrutinized in public debate, legal action and legitimate complaint. It is in the interest of all concerned that only law should be used as an instrument of press control.

6. The law does three separate but related things with respect to the media. These are that: (i) It creates rights and duties of citizens, the press and the state; (ii) It limits boundaries for the exercise of freedoms; and (iii) It creates a framework for control and regulation of the press and its activities

7. The idea of 'control' in the context in which it is used here implies at least four limitations to freedom of the press, namely: (i) Qualification of right of access to information, especially from official governmental sources; (ii) Placing limits on freedom to disseminate information; (iii) Regulation and/or control of the form of dissemination; and (iv) Privileged and prior access to information material by the state or its agents

8. The law plays two roles within the broad framework of control of the press: (i) The law plays a legitimate role of ensuring accurate information and clean entertainment; and (ii) The law plays a political role of ensuring that activities of the press conform with what the state considers desirable.

9. According to the constitution, no person is to be hindered in the enjoyment of his freedom of expression, except as provided for in the Constitution. Freedom of expression as protected in the Constitution, refers to four separate rights, namely: (i) Freedom to hold opinions without interference; (ii) Freedom to receive ideas and information without interference; (iii) Freedom to communicate ideas and information without interference (whether the communication is to the public generally or to any person or class of persons) and; (iv) Freedom from interference with private correspondence.

10. Four separate but related reasons have been used to justify the introduction of laws which curtail press freedom. These are: (i) The interests of the state, especially its security; (ii) The interests of the society, especially public health and morals; (iii) The interests of justice (e.g. contempt; and (iv) The interests of the individual, especially his privacy.

11. The Lancaster Constitution or what we now call the old Constitution was to say the least intolerant to the media and journalism practice as whole. In fact, it stifled media development in the country and any negative views about the media in Kenya are by-products of the old Constitution and the bad legal regime it supported.

12. Although the old Constitution guaranteed the right to freedom of expression, it provided limitations of the fundamental rights and freedoms under vague circumstances. Therefore, the old Constitution while purporting to guarantee rights and freedoms actually allowed violations of the selfsame rights and freedoms.

13. In the new constitution, article 33 guarantees the right to freedom of expression. Specifically, it guarantees “freedom to seek, receive or impart information or ideals as well as freedom of artistic creativity.” This particular provision allows journalists, editors and any other person who wants to communicate using any form of mass media to do so.

14. It allows the journalist to gather information from all manner of sources and to disseminate the same using any communication channel. Cartoonists, illustrators, photographers and designers working in and outside the media have the same right as well.

15. However, the citizen’s freedom of expression shall be limited by Article 31 that states that “every person has a right to privacy.” That means individuals have the right not to reveal information relating to them, family or private affairs. The implication is that individuals including journalists can say whatever they want to as long as such material does not violate the privacy and reputation of others or infringe on the privacy of their communication.

16. The freedom of expression will also be limited during war. Individual rights will not be guaranteed if one engaged in propaganda against the state during war. Similarly, one’s right to expression will not be respected if one incited people to violence or engaged in hate speech.

17. The new Constitution goes further than the previous constitution by guaranteeing every citizen the right to access information held by both the state and private persons. This provision shall compel the government to pass a Freedom of Information Act that shall stipulate the procedures for obtaining privileged information from government and the private sector.

18. This will encourage the practice of investigative journalism which has been hindered by the Official Secrets Act. Journalists and private citizens, upon legislation, will only apply to the respective authority and obtain classified information in companies and government. It will make it easy for journalists and media houses to obtain information as well as reduce costs associated with investigative journalism.

19. Further, the new Constitution compels the government to publish and publicise any important information affecting the nation. Gone are the days when the government would refuse to make public the findings of numerous important commissions such as the ‘Akiwumi Commission Report’ on tribal clashes and Ndungu Report on land among others. In fact, it empowers citizens to take government to court for refusing to release important information.

20. Unlike the previous Constitution, the new law specifically mentions and guarantees the freedom of mass media. Article 34 of the Bill of Rights states that “freedom and independence of electronic, print and all other types of media is guaranteed.” However, the new Constitution limits the freedom of media in Article 33, Section 2. The freedom and independence of media shall not be respected if the media engaged in propaganda against the state during war or incited people to violence or engages in hate speech.

21. The implication is that media can challenge violations of freedom and independence by the state and private, community and sectarian interests of any kind. These interests may include ownership, advertising, sponsorship and audience interests.

22. The new Constitution goes even further to prohibit the state from controlling or interfering with mass media owners, distributors, producers and their agents. The implication is that the government shall not make legislation of any kind that seeks to unduly control or interfere with mass media business and management. Gone is the era when the Ministry of Information and Communications and regulators like CCK would unilaterally take draconian action on the mass media establishments.

23. Additionally, the new Constitution prohibits the state from penalising any person for any opinion or view or the content of any broadcast, publication or dissemination. This provision protects individual journalists and editors from arbitrary arrest on the grounds of inaccurate, unfair and imbalanced editorial content.

24. In other words, the state shall not penalize dissent or informed criticism. This provision also opens the floodgates for people to disseminate all manner of information and graphics. This though is likely to push the limits of the definitions of what constitutes public decency and good taste. It is open and leaves it to legislators to make delimitations in law.

25. The new Constitution provides for freedom of establishment of private broadcasting stations as shall be prescribed by law. However, its states that such stations must be independent of the control of government, political interests and commercial interests.

26. Concerning state-owned media, the new Constitution states that they shall be free to determine independently their editorial content and other communications. This provision protects state-owned media from undue interference by government and their agents who have manipulated state media over the years. Gone are the days when the government would dictate editorial content to KBC and other state media outlets.

27. State-owned media shall also be required to be impartial and adhere to the doctrine of fairness at all times. The new Constitution requires managers to desist from being prejudiced in their presentation. It requires them to present divergent views and dissenting opinions fairly and in a balanced manner.