The Kenyan media faces its severest assault ever, following the passing of a repressive new law by parliament whose core elements are strict government regulation and a slew of unprecedented, punitive penalties targeting both journalists and their employers.
The Kenya Information and Communication Bill, 2013 would appear to not only go against some provisions in the Bill of Rights in the Constitution, but is likely to take away the well-established mechanisms the media fraternity had put in place for self-regulation.
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.
Article 6(E)1 of the Bill provides for a Kenya Communications Authority that is to establish a broadcasting standards committee, which shall be responsible for developing standards for content and regulating and monitoring compliance with these standards.
The Authority is expected to work under the direction of a board mostly comprised of government appointees. The president will appoint the chair of the board, which will also include principal secretaries of information, internal security, finance, and seven other people appointed by the Cabinet secretary.
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.”
These developments are also contrary to Article 34(2) of the Constitution, which provides for media freedom and freedom of expression. It says that the state shall not exercise control over or interfere with any person engaged in broadcasting, production or circulation of any publication nor the dissemination of information by any medium; or freedom of expression. The same article does not allow the state to penalise any person for any opinion or view or the content of any broadcast, publication or dissemination.
The law is being seen as reflective of official thinking within the regime of Uhuru Kenyatta.
The passing of the law, clearly one of the harshest in the region, came soon after Inspector-General of Police David Kimaiyo threatened to punish Standard Group journalists who televised an investigative story on the recent terrorist attack on Westgate Mall along with the media house’s CEO.
The president appeared to support that action in remarks attributed to him during a recent party he attended to celebrate the appointment of Cabinet Secretary of the Interior Joseph ole Lenku.
But Kenya has plenty of company, as the region has one of the worst records of media repression in the world. Some stakeholders are equating the new law to Sudanese media laws enacted in 2009, where the main body responsible for taking action against newspapers and journalists is the National Intelligence and Security Service (NISS), which shut down many newspapers, conducted pre-publication censorship and confiscated newspapers from the streets.
Sudan recently proposed new laws that legalise the closing of a newspaper as well as cancelling the registration of a publishing house, besides heavy financial penalties. And like Sudan, the proposed penalties for media and journalists under the new Bill are the highest in the history of Kenya — penalties that the media fraternity argues will either lead to the winding up of media houses or turn them into government mouthpieces.
Journalists are to be fined Ksh1 million ($11,700), while media houses can be fined a maximum Ksh20 million ($235,000) for any breach of the new law by a state-appointed and controlled tribunal. One of the key concerns is that the fines will be treated as debt due to the aggrieved, which gives freedom to those who sue the media to attach their assets and bank accounts.
In the new Bill, the Complaints Commission has been moved from the self-regulating Media Council of Kenya to the new Authority controlled by the government in the form of a Tribunal expected to handle media and multimedia issues.
Article 102(E) gives the Tribunal powers to “make any directive and declaration on freedom of expression,” which is basically an open cheque to redefine freedom of the press.
Also, the Tribunal can recommend that a journalist be removed from the register, which makes it easy to kill the very livelihood of journalists. Meanwhile, Article 102(I) provides that the chairman or any officer of the Tribunal cannot be sued in a civil court for actions perpetrated while discharging his duties, effectively putting the holder of the office above the law.
The World Press Freedom Index 2013, published by Reporters Without Borders, described East Africa as a region of censorship, singling out Eritrea, Djibouti, Sudan and Ethiopia as places where newspapers are arbitrarily shut down, journalists detained or jailed for breaking anti-terrorism laws or for criticising the government.
Two weeks ago, Tanzania proposed amendments to its media laws that will see journalists face harsh punishment in the course of discharging their duties, including severe penalties for professional mistakes. Journalists will be liable to five-year jail terms and fines of upto Tsh5 million ($3,125).
Rwanda in March enacted a new press law and a Freedom of Information Act that sought to improve the working condition of journalists, but journalists in Rwanda have in the past been jailed for criminal libel, alleged national security offences and vague genocide-related laws.
In Uganda, the government enacted a law that allows the state to shut down newspapers and jail journalists for articles deemed to undermine national security. As a result, the safety and security of journalists in Uganda remains uncertain, with many subjected to arbitrary arrests and torture, intimidation and harassment.