Transcript 4.1 Press freedom in Kenya

Media Freedom in
Kenya
Lecturer: Musakali, Joseph Juma
 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?
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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'.
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
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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.
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 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
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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
 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.
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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.
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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.
 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 byproducts of the old Constitution and the
bad legal regime it supported.
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.
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 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.
 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.
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.
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 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.
 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.
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.
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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.
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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.
 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.
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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.
 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.
 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.
 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.
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.
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 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.