Freedom of the Media in Kenya: Government

Regulation or Self - Regulation?

Michelle Catherine Oluoch

1018841

A Project Submitted in Partial Fulfilment of the

requirements for the LLB degree from the

Catholic University of Eastern Africa

Department Of Law

The Catholic University of Eastern Africa

2015

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DECLARATION

This project is my original work, and thus has not been

presented for a degree in any other university.

Signature: ……………… Date: ………………………

Michelle Catherine Oluoch

This project has been submitted for examination with our

approval as The University supervisors:

Signature……………………..

Date……………………….

Ms Judith Oloo,

Department of Law Catholic University of Eastern Africa

The Head of Department

Signature …………………… Date

………………………

Mr Ken Mburu,

Department of Law Catholic University of Eastern Africa

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DEDICATION

I dedicate this project to Almighty God for keeping me level

headed throughout this process.

This project is also dedicated to Rose Patricia Oluoch and Julius

Meshack Oluoch, my parents who encouraged me throughout

the process and never let me lose sight of the goal I set to

achieve, sacrifices they made for me and for their great

financial support and patience with me, and to my siblings

Anthony L. Oluoch and Jacqueline A. Odhiambo for the extra

push of encouragement.

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ACKNOWLEDGMENT

There are so many people who set aside their personal time to

assist me in the realisation of this work and it would be

impossible to individually thank all of them here. However, they

know themselves and I would like to appreciate and thank them

immensely.

Special thanks to my supervisor, Judith Oloo whose patience,

guidance and constructive criticism helped me realise this

work.

Another special thanks also to my colleagues, Raphael B.

Mwangi and Shirley C. Khaniri for their constant encouragement

to finish the work when I was done and out.

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Contents

CHAPTER ONE........................................................................................................................6

FREEDOM OF MEDIA IN KENYA: SELF – REGULATION OR GOVERNMENT

REGULATION?........................................................................................................................6

1.0 Introduction.................................................................................................................6

1.0.1 Growth of Media in Kenya........................................................................................6

1.0.2 Background to the Study............................................................................................8

1.0.1 What Is Freedom of the Media..................................................................................9

1.1 STATEMENT OF THE PROBLEM..........................................................................10

1.2 RESEARCH QUESTIONS.......................................................................................11

1.3 RESEARCH OBJECTIVES.....................................................................................11

1.3 JUSTIFICATION OF THE STUDY.........................................................................11

1.5 SCOPE OF THE STUDY.........................................................................................12

1.6 METHODOLOGY...................................................................................................12

1.6.1 Primary Data............................................................................................................12

1.6.2 Secondary Data........................................................................................................12

1.6.3 Tertiary Data...........................................................................................................13

1.7 LITERATURE REVIEW........................................................................................13

1.7.1 Free Expression and Authority in Contest: The Evolution of Freedom of

Expression in Kenya by Charles Muiru Ngugi.................................................................13

1.7.2 Journalists and the Rule of Law by Levi Obongo and Erneo Nyamboga................14

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1.7.3 The Role of Media in promoting Good Governance in the East African Region by

Henry Mania.....................................................................................................................16

1.7.4 Law and the Mass Media in Kenya by A Okoth – Owiro.......................................17

1.8 CHAPTER BREAKDOWN...........................................................................................18

1.8.1 Chapter One...........................................................................................................18

1.8.2 Chapter Two..........................................................................................................18

1.8.3 Chapter Three..........................................................................................................19

1.8.4 Chapter Four............................................................................................................19

1.8.5 Chapter Five.............................................................................................................19

CHAPTER TWO.....................................................................................................................20

THE LEGAL POSITION IN KENYA ON THE FREEDOM OF THE MEDIA....................20

2.0 National Legal Framework Relating To Media Freedom..............................................20

2.0.1 The 2010 Constitution.............................................................................................20

2.0.2 The Media Act.......................................................................................................24

2.0.3 Kenya Information and Communications Act.........................................................30

2.1 International Law Framework Relating To Media Freedom........................................30

2.1.1 The Universal Declaration of Human Rights........................................................31

2.1.2 The International Covenant on Civil and Political Rights.....................................32

2.1.3 The Windhoek Declaration....................................................................................32

2.1.4 The African Charter On Human And People’s Rights...........................................33

2.2 Conclusion......................................................................................................................34

CHAPTER THREE..................................................................................................................36

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THE STRUGGLE FOR MEDIA FREEDOM IN KENYA.....................................................36

3.0 Introduction....................................................................................................................36

3.1 The Challenges Faced By the Media in Kenya..............................................................38

3.1.1 Threats, Arrest, Violence and Death........................................................................38

3.1.2 Media ownership and Advertising Powers..............................................................40

3.1.3 Legislation and Legal Processes..............................................................................42

CHAPTER FOUR....................................................................................................................45

TOWARDS SELF – REGULATION OF THE MEDIA IN KENYA.....................................45

4.1 Introduction....................................................................................................................45

4.2 The Media in Republic of South Africa.........................................................................46

4.2.1 Independent Communications Authority of South Africa (ICASA).......................47

4.2.2 Broadcasting Complaints Commission of South Africa (BCCSA).........................47

4.2.3 Press Council...........................................................................................................48

4.3 Media Democracy..........................................................................................................49

4.4 Conclusion......................................................................................................................50

CHAPTER FIVE......................................................................................................................51

STEPS TOWARDS A SELF - REULATED MEDIA IN KENYA........................................51

5.1 Introduction....................................................................................................................51

5.2 Conclusion......................................................................................................................51

5.3 Recommendations for a Free Media in Kenya...............................................................53

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CHAPTER ONE

FREEDOM OF MEDIA IN KENYA: SELF – REGULATION OR

GOVERNMENT REGULATION?

1.0 Introduction

1.0.1 Growth of Media in Kenya

The history of Kenyan media begins during the colonial era when newspapers were used to

mainly inform the British settlers of the on goings in Britain, and also to send and receive

communications to and from other family members and friends they may have left in Britain.

Also papers were used to promote pro colonial views.

The missionaries, who arrived in Kenya before it was declared a colony in 1920, also had

newspapers that were published in the protectorate. The very first newspaper in record was

the Taveta Chronicle, published quarterly, was started by Reverend Albert Stegal of the

Church Missionary Society (CMS) near the Kenyan coast in 1895 and the Uganda Mail was

published in Mombasa between 1899 and 19041. The Standard founded by Alibhai Mulla

Jevanjee in 19022 goes on record as Kenya’s longest serving newspaper, being in existence

for over 100 years. The newspaper was acquired by British-based Lonrho Group in 1963,

only a few months before Kenya's independence and was later sold to Kenyan investors in

1995. In 1989, at a time when Kenya was going into multi-party era, the Standard Group

acquired the KTN Television Channel, now collectively called The Standard Media Group

with a radio station Radio Maisha to their name.

1 The History of the Press in Kenya by John Abuoga and Absalom Mutere (1988) 2 The Standard (Kenya) website.

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Another major media house in the country is the Nation Media group, its newspaper the

Nation, was first registered in 1959 by Michael Curtis and Charles Hayes3 both

newspapermen in London and Nairobi, respectively. The spiritual leader, Aga Khan,

purchased the Nation a year later. The paper was the first to adopt a policy of Africanization4

besides the English language Nation the NMG also publishes a Kiswahili edition Taifa Leo,

owns the TV station NTV and the recently re-branded Nation FM.

The People owned by Kenneth Matiba started as a weekly, but turned daily with a Sunday

edition in December 1998 and initially founded to serve as the voice of the opposition politics

and to report materials that Nation and Standard feared to touch. Kenya Times, founded by

one Hillary Ng’weno; it was seen as the government’s mouthpiece and thus not very popular

especially after the KANU acquisition of it in 1983. It was claimed that it only published

what the then government wanted it to publish and the public found it hard to distinguish

between a government paper and a one party state newspaper that some writers acknowledge.

The most recent paper to enter the Kenyan market is the Star. It was launched in July 2007 as

the Nairobi Star, a 32 page tabloid style newspaper concentrating on human interest stories.

In 2008 the paper switched to a more political general news format while retaining its

original strong focus on society stories, English premier league sport, and inside political

information. In 2009 it was rebranded as the Star and re-focussed on national news and

additional op-ed pages that provided an open forum for political debate.5

Aside from print media, Kenya has a large number of radio stations that have specific target

audiences and others more for the general public, they are 118 stations operating in the

country, both local and international, speaking English, Swahili and the local vernaculars.

3 Rosalynde Ainslie. The Press in Africa: Communications Past and Present. London (1966) pg 1064 The History of the Press in Kenya by J.Abuoga and A.Mutere (1988) and Gunilla Faringer Press Freedom in Africa both books referred to it as such coining the word ‘Africanization’5 Information from the Star newspaper website the-star.co.ke

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1.0.2 Background to the Study

In late February 2006, the Standard newspaper, one of the leading English newspapers in the

country, published a story were their were claims that the then president Mwai Kibaki and

then senior Opposition leader Kalonzo Musyoka were holding secret midnight meetings at

State House discussing issues unknown. Later in March 2006, there was a midnight raid on

the offices of the newspaper. The offices were ransacked and property destroyed or taken

away and staff beaten during this raid that was allegedly conducted by the government, and

carried out by foreigners.6 At the KTN offices, that is the TV Station of the Standard group,

the raiders shut down the electricity supply that caused the TV station to be off air.

Investigations in this raid were begun in 2007 but it was never scheduled in for parliamentary

debate and thus cause delays for the release of it.

The parliamentary report, finally unveiled in 2010, showed that the then president Mwai

Kibaki was aware of the raid and this was facilitated by Late John Michuki, who was the

Internal Security Minister, the then Director of Criminal Investigations Department, John

Kamau and Stanley Murage who was the President’s Special Advisor.7 The famous words by

Michuki in the aftermath of the raid that ‘if you rattle a snake you must be prepared to be

bitten’ was received with a lot of criticism that showed how the government had no regard for

the right of the media at the time. The reasoning for the midnight raid of the Standard Group

Offices was that the police were protecting the National Security of the state.

After this raid, three journalists who covered the story that lead to the raid were arrested and

held in police custody before being released on a KSH50, 000, without any charges.

The Kenya Information and Communications Act was amended and passed into law by the

National Assembly in October 2013. In the opinion of journalists, its purpose was to overhaul

6 Standard Digital Newspaper updated 25th November 20107 Kenya Admits Armed raids on paper – BBC News 2006

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the regulation of the press by creating a tribunal that was government approved. The

amendments were referred to as draconian by the press and were greatly opposed. The new

powers this government tribunal included de – registering of journalists and imposing hefty

fines for most offences, to media houses and to the individual journalists. Before this the

Media Council of Kenya was the one that was responsible for the self – regulation of the

press8 as provided by the Media Act.

The amendments also gave the government powers to raid media houses at will and control

broadcast content, it also banned individuals and companies to own and operate broadcast

stations and press publications9 the defence that Kibaki gave for assenting to the bill was that

it will safeguard Kenya’s moral values, culture and nationhood. The creation of this law was

viewed as the government taking punitive action after the criticism that the media had of the

poor performance of the Kenya Defence Forces during the Westgate Mall Attack that lasted

three days.10

1.0.1 What Is Freedom of the Media

Media, also referred to as the Press, is defined as newspapers, television, radio, the internet

etc. that communicate news and information to large numbers of people.11 Furthermore, Chief

Justice Charles Evans Hughes, in the case of Lovell v City of Griffin,12 defined press as;

‘every sort of publication which affords a vehicle of information and opinion.’

Freedom of the Media, or Freedom of the Press, is generally understood as in the United

States Constitution,13 where the government is prohibited from interfering with the printing

8 an act of parliament to provide for the establishment of the Media Council Of Kenya; for the conduct and discipline of journalists and the media; for the self-regulation of the media and for connected purposes’ – Preamble of Media Act9 BBC News updated January 200910 To Gag, Or To Gag: Kenya’s New Media Laws – Andrew Maina (2013)11 Macmillan English Dictionary for Advanced Learners 2nd edition12 303 US 444 [1938]13 The first amendment to the US constitution adopted in Dec, 1791

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and distribution of information or opinions14, although like other laws it is subject to certain

limitations or restrictions. These limitations include but are not limited to; law of defamation

[libel and slander], where it seeks to protect individual rights to a good reputation, and

copyright law, where works of an author or publisher is protected and not to be claimed as the

work of another.

In Kenya, the 2010 constitution follows closely with the US Constitution with regards to

prohibiting government influence. It gave the media specific attention that was not seen in

previous repealed constitution15. The rights of the media are guaranteed16 so long as the

articles or stories do not extend to propaganda for war, incitement to violence, hate speech or

advocacy for hatred.17 The rights also include that they are to be independent from the

influence of the government; this extends to the state owned media.18

1.1 STATEMENT OF THE PROBLEM

This research examines the role of the media locally and find out whether the existing laws

and practises on the ground do follow through on the promises and existing laws from pre-

colonial times till the present day.

Is the media in Kenya better off with self - regulation with a totally hands off government or

should the government censor what the public receives as news and information from media

outlets, or should there be a delicate balance of both views?

14 Michael McConnell “Reconsidering Citizens United as a Press Clause Case” for The Yale Law journal, 201315 Article 79 (repealed) talks of the individuals freedom of expression: “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, to receive ideas and information without interference, 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.”16 Article 34 [1] 17 Article 33[2] 18 Article 34 [3] and [4]

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1.2 RESEARCH QUESTIONS

i. What is the situation of the media freedom of Kenya?

ii. What does government regulation of the media entail?

iii. What does self - regulation of the media entail?

iv. What recommendations can be made to suit the state with regards to press regulation?

1.3 RESEARCH OBJECTIVES

This research seeks;

i. To analyse the situation of media freedom in Kenya

ii. To evaluate government regulation of the media in Kenya and the consequences

thereof.

iii. To evaluate self - regulation of the media in Kenya and its consequences thereof.

iv. To find out the best way to regulate the press in Kenya in line with the situation in the

country.

1.3 JUSTIFICATION OF THE STUDY

This aims research is to study the power struggle between the government and the press when

it comes to regulation and address the gaps that may be as a result of partisan views of the

press and of the Kenyan government.

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1.5 SCOPE OF THE STUDY

This research is to take a period of three months; from May 2015 to July 2015, looking at the

history of the press in Kenya and the steps forward and drawbacks it has gone through since

1963.

The territorial scope of the research is the Republic of Kenya, with a few references to laws

that affect the media. These are English law, where Kenyan law is largely based upon and the

International law that results from treaties that the Republic of Kenya is signatory to.

1.6 METHODOLOGY

This research with utilize the follows sources of information:

1.6.1 Primary Data

The primary data that will be the basis of the research is the primary source of law which is

the current constitution of the Republic of Kenya that came into effect in 2010. The

predecessor of this constitution shall also be referred to where relevant for purposes of

comparison of previous and current statuses.

The Acts of Parliament that are relevant in regards to the self - regulation or government

regulation of the media.

1.6.2 Secondary Data

Judicial precedents in matters to do with freedom of the media and their regulations are also

going to be referred to in this research. These are judgements or decisions of a superior court

used as an authority for reaching the same decision in subsequent similar cases and are

legally binding to lower ranking courts19.

19 see Oxford; page 416

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1.6.3 Tertiary Data

Newspaper, periodicals, journals and magazine articles on the issue of self - regulation or

government regulation of the press will be also a source of information so as to be able to

look at the opinions of the journalists and members of the public, who write opinion articles,

when it comes to looking for the best solution for the Republic with regards to regulation and

the way forward.

1.7 LITERATURE REVIEW

1.7.1 Free Expression and Authority in Contest: The Evolution

of Freedom of Expression in Kenya by Charles Muiru Ngugi

This dissertation was written as a partial fulfilment of the requirements for an advanced

degree from Emory University. In it, the author looks at the gradual development of the

media in Kenya from the colonial setting where the media was of the British colonialists, they

banned the publication of African based literature for fear of the African radicalisation or

other reasons. He also looks at the role that the media, through the written manuscripts and

underground newspapers, played in the road to independence of the territory.

The Africans where denied their rights, freedom of expression, that the few that were

educated were able to stand up and speak on behalf of them and champion the rights in a

language that the locals understood. The newspapers enjoyed wide circulation within the

localities and this encouraged the Africans to realise and demand for their rights.

Charles Muiru Ngugi also examined at the media post - independence. Using a historical

analysis of political, cultural and social thought and action, this dissertation explores the

evolution of freedom of expression in Kenya. It also offers a holistic examination of the

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history of free expression in Kenya, which has tended to be treated in bits and pieces, often

contingent upon donor or government funding.20

The paper also is viewed as a contribution on how free expression can be mobilized in the

effort to consolidate emergent constitutionalism in Africa, and updates the historiography of

free expression in Africa and that the study is also an attempt to locate emerging formulations

of freedom of expression, and to document their recent and current implementations. He

seeks to show that the media and the governments can be important and critical allies in the

making of a proper democratic state in Africa and that there should be less of government

regulation to allow the media to play its role in being a public watchdog, but the media

should not be a tool of propaganda.

1.7.2 Journalists and the Rule of Law by Levi Obongo and Erneo

Nyamboga

The paper is a publication of the Kenya section of the International Commission of Jurists. It

states that the general public or average individual is too busy going about daily

responsibilities and has somehow delegated the task of keeping an eye on government to the

media, as the fourth estate. As it may be knows that some individuals within government

would be more interested in personal gain rather than pursuing national or public interests the

fact that someone is watching his or her every move would help keep them in check.

It is pointed out that media is important in that it is flat with no hierarchical properties as

would a village baraza or views expressed in a church, mosque or temple. The view that it is

20Abstract - Free Expression and Authority in Contest: The Evolution of Freedom of Expression in Kenya by Charles Muiru Ngugi.

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so makes it more well received to the public because the press is seen as less interested in

sectorial interest as a church, mosque or temple meeting would.21

It is brought to the attention of the reader that a “free and independent media” relies a lot on

the type of leadership experienced in the respective jurisdiction. Every segment of society is

desirous of a free media, be it authoritative, libertarian, social responsibility, market oriented

to mention a few, all claim to have a free media system in place.22 The paper talks of four

major theories behind the functioning of the world's presses: the Authoritarian theory, which

developed in the late Renaissance and was based on the idea that truth is the product of a few

wise men; the Libertarian theory, which arose from the works of men like John Milton23 and

John Locke and avowed that the search for truth is one of man's natural rights; the Social

Responsibility theory of the modern day: equal radio and television time for political

candidates, the obligations of the newspaper in a one-paper town and so on, and lastly the

Soviet Communist theory, which is viewed as an expanded and more positive version of the

first old Authoritarian theory.

It brings out the fact that there is no proper definition of what the free press is, apart from the

McBride Report that defined it as one that was “in service of the economic development”,

and therefore there is no standard to which to hold media in different independent states

around the world. By virtue of the media houses being corporate citizens and that is an

environment regulated by the government, can the media truly ever be sovereign from

government influences?

21 Page 8222 Four Theories of the Press: The Authoritarian, Libertarian, Social Responsibility, and Soviet Communist Concepts of what the Press Should Be and Do by Fred S. Siebert, Theodore Peterson & Wilbur Schramm23 The Areopagitica; A speech of Milton for the liberty of unlicensed printing and the importance of a free press.

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1.7.3 The Role of Media in promoting Good Governance in the

East African Region by Henry Mania

The article like many others states the role that media has in being the public watchdog. It

recognises that the United Nations Development Programme (UNDP) and the World Bank

classifies the press as among the institutions that can positively contribute to good

governance, democratization, as a civic forum for political debate and as an agenda setter for

the policy makers.24

At the time of writing the East African Communities were soon facing elections and were

encouraged to use the media as a way to generate genuine public debate, reprimand abuses of

fundamental human rights, especially freedom of expression and access to information. The

paper opines that the media should be free, independent to provide the citizens with proper

information to compare and assess the different candidates up for office, for the sake of

helping good, informed decisions at the ballot. It critical of the fact that major newspapers

and television networks that have the main shareholders who are in favour of the governing

party, hence coverage and tone are heavily tilted in favour of that one party. The paper

acknowledges the role that media houses played during the 2007 Post Election Violence.

It comes to the conclusion that states and state authorities in the region have a critical

responsibility and obligation to commit themselves to democratic governance and recognition

of the legitimate role the media in promotion and protection of democracy and good

governance.25

24 Norris P (2006) The Role Of Free Press in Promoting Democratization, Good Governance and Human Development, UNESCO, New York25 Wanyande P; Mass Media-State Relation In Post-Colonial Kenya, Africa Media Review

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Is also concludes that once fundamental rights and freedoms of citizens are respected,

promoted and fulfilled the relationship between state and the media is likely to be less

conflicting and more complementary in road to ensuring good governance.26

1.7.4 Law and the Mass Media in Kenya by A Okoth – Owiro

The article analyses the separate reasons used to justify the introduction of laws that curtailed

press freedom in the year 1990. It names four:

(i) Interests of the state -

This was where the penal code provided power to prohibit a publication, that is

newspapers and periodicals, where it must appear to the Minister of Home Affairs that I

was necessary to protect public morality, health or order; and this prohibition must be

reasonably justifiable in a democratic society.27 The felony of sedition28 where any

publication that may ‘bring hatred…excite dissatisfaction in the administration of justice

in Kenya…’ was an offence that attracted imprisonment of up to ten years. The press was

not free to point out the weaknesses of the government to the public.

(ii) Interests of the society, especially public health and morals

(iii) Interest of justice

26 Page 627 Penal Code of Kenya (1969) s5228 Penal Code of Kenya (1969) s56

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Where a court may order an injuction against the publishing of a particular article that

may prejudice pending trial, or scandalize the court, or refusal to give sources of

information to a competent tribunal/court.

(iv) Interests of the individual, especially his privacy.

The reputation of an individual is protected by the law on libel and slander. Persons

intellectual property is also protected by copyright law and a journalist cannot publish

information that falls into the realm of private property unless with permission.

1.8 CHAPTER BREAKDOWN

1.8.1 Chapter One

This chapter looks at the definition of media, the history of media and how it developed in

Kenya, the methods of data/ information collection objectives and review of books and

articles with similar topics.

1.8.2 Chapter Two

This chapter studies the legal frame work of media freedom in Kenya both local and

international policies in the Republic, and their application. The progress made and the

setbacks in terms of laws experienced in the media sector.

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1.8.3 Chapter Three

Chapter three delves into the challenges the Kenyan media and journalists have had since

independence up to present day, with some case studies.

1.8.4 Chapter Four

The merits and demerits of a free independent media in a democratic nation are discussed in

this chapter and the steps that the governments of Kenya, previous and current, have taken

and can take to ensure the continued growth of it’s the media.

1.8.5 Chapter Five

The final chapter has the recommendations and conclusions for the media in Kenya.

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CHAPTER TWO

THE LEGAL POSITION IN KENYA ON THE FREEDOM OF

THE MEDIA

This chapter discusses the evolution of laws that have been in effect in Kenya ever since

independence to laws that are currently in effect in the country, that relate to how the

government, the people and the media relate.

2.0 National Legal Framework Relating To Media Freedom

2.0.1 The 2010 Constitution

Kenya has had two constitutions before the current constitution came into effect, they

however did not explicitly give the media freedom as is with the current one. The 1963

Independence Constitution provision was ‘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.’29

The article clearly refers to the idea of receiving information from others, whether to public

or to person or persons, what the media would generally be mandated or expected to do.

Though the 1963 constitution did not explicitly state that the media is free, it could be

implied by the article. It also had the exception to the rule of this freedom given by part (1),

in part (2) where the public defence, public safety, public order, public morality or public

health. The 1969 Constitution – Repealed had the provision where the law was expressly for

29 Article 23(1) of the 1963 Kenyan constitution - repealed

22

individuals and only generally implied again that the media has freedom to disseminate news

as is relevant to the day. There was no law that expressly stated that the media was to have

non - interference from the government of the day. Nor was there a provision for parliament

to sit and make an act of parliament that further ensures the media freedom.

The current constitution of Kenya saw the introduction of various clauses that defined and

expressly mentioned media information access and the freedom of expression. The first one

where; ‘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…’30 where there are limits to this

freedom, not extending to propaganda for war, incitement to violence, hate speech or

advocacy of hatred31 and the rights of other individuals should be respected as well, as was

expressed in the previous constitution. This is not different from the first two constitutions

where freedom of expression was recognised, but also subject to some limitations.

The next section of the constitution talks about the media in particular, no previous

constitution or amendment has ever had an article explicitly referring to the media and the

freedoms and limitations the law provides the sector ‘freedom and independence of

electronic, print media and all other media’32 is guaranteed in the law now and the freedoms

too do not extend to those limitations expressed in article 33 (2) of the same constitution. The

freedom of the media is further stressed in the next section where ‘the state will not exercise

control or interference with any person engaging in broadcasting the production or

circulation of any publication…’33 neither will it penalise any person for the same. The article

provides that the establishment of media houses be it broadcasting or electronic media are

30 Article 33 of the 2010 Kenyan constitution31 Art 33 (2) of the 2010 Kenyan constitution32 Article 34 (1) of 2010 Kenyan constitution33 Article 34 (2) of 2010 Kenyan constitution

23

free of the government control, political interests or commercial interests subject to the

licencing procedures that should be followed to regulate the industry.34

In line with article 34(2) of the 2010 constitution, part (4) states that ‘all state owned media

should be free to determine independently the editorial content of their broadcasts and other

communications…’ this may be because of the fact that in the past, Kenyans could not

differentiate state owned media from the one party state newspaper. The section compels

state owned media to be impartial and have different views from the government and the

opposition so that the general public can be able to form their own opinions and views on

different issues and government policies.

The next part in article 34 of the constitution compels parliament to establish through

legislation in parliament that should be independent of control of the government, and

political and commercial interests.35 The body is also to see that there is a benchmark of the

standards within the media sector and to enforce these standards keeping in mind the

reflection of public interests.

The constitution goes further with another section that is important for the media to do its

functions within the society. Article 35 states that; ‘every citizen has the right of access to

information held by the state, information held by another required for exercise or protection

of any right or fundamental freedom’36 It goes on further to compel the state to publicise and

publish any important information affecting the nation.37 This clause is up for debate though,

as it does not classify what information exactly is ‘information affecting the country’, the

state could be covering up for the indiscretions of a government official, for example one

who has embezzled public funds, and claim it not affecting the nation. This is why many

34 Article 34 (3) of Kenyan constitution35 Article 34 (5) Kenyan constitution36 Article 35 (1) Kenyan constitution37 Article 35 (3) Kenyan constitution

24

scholars are of the opinion that parliament should have serious debates on the enacting into

law an information act so as to make sure that vague clauses such as that in article 35 (3) are

not causing loopholes in the law, and in effect harming the interests of the citizens.

In 2007 there, was a bill tabled in parliament by one called the Freedom of Information Bill

as a private members Bill. The Bill however lapsed in the 1st reading, being that 2007 was an

election year that could have contributed to the Bill not getting adequate debate time.

Subsequently in 2008, there was another proposed Freedom of Information Bill 2008 that was

drafted as a Government bill. However, there is a 2012 bill called the Freedom of Information

Bill is still yet to be approved by parliament.

The position in the country however pertaining to who can access information was set by

precedent in the case of Nairobi Law Monthly v Kenya Electricity Generating Company

Limited and 2 others (2013) eKLR38 where the presiding magistrate was of the opinion that

only the private citizen has the right to ask for information from the government, and other

state owned agencies. Kenyan and international agencies saw this as a narrow interpretation

of the article 35 of the constitution and that it would hinder media and other private bodies to

seek information from the government in order to disseminate to the general public.

There were mixed reactions from the judgment of the presiding magistrate, many of them

negative especially from non-governmental agencies that advocate for freedom of media in

law and in practice. “This ruling is important for its recognition of citizens’ constitutional

right to information39 and as a result citizens will be more emboldened to seek information

from public and state owned corporations, which have long operated in secrecy. The ruling is

important in providing interpretations to the scope and application of the right to access

information as it applies to state owned companies, and has underscored the urgent need for

38 Petition no 278 of 201139 Article 35 of constitution of Kenya

25

the Kenyan parliament pass to the Freedom of Information legislation. However, the court’s

narrow interpretation of “citizens” could prove a limitation on the application of access to

information rights by legal entities in the future,”40

Many were of the opinion that citizens should also include the non-governmental Kenyan

agencies, as long as this information is deemed necessary for the benefit of the general

public.

2.0.2 The Media Act

The media act came as a result of the constitutional provision that compels Parliament to

‘enact legislation that provides for the establishment of a body, independent from the

government…’41

The media act also known as Chapter 411B, describes itself as ‘an act of parliament to

provide for the establishment of the Media Council of Kenya; for the conduct and discipline

of journalists and the media; for the self-regulation of the media and for connected purposes’

commencing on 1st October 2007 and revised in 2009 and later in 2013. The Act gives the

establishment of the media council of Kenya giving it a corporate body personality, a

common seal with the ability to sue and be sued and purchasing and disposing of movable

and immovable property.42 The act also gives the functions of the council43 and also mandates

the Council together with the Cabinet Secretary to make regulations to give the functions of

the Council further effects from what has already been specified in the Act.

40 Henry Maina, Director of Article 19 Eastern Africa.41 Article 34 of Constitution42 Section 5 (2) of the Act (2013)43 Section 6 of the Act (2013)

26

The following are the functions of the Council:

i. mediate or arbitrate in disputes between the government and the media, between the

public and the media and intramedia;

ii. promote and protect freedom and independence of the media;

iii. promote high professional standards amongst journalists;

iv. enhance professional collaboration among media practitioners;

v. promote ethical standards among journalists and in the media;

vi. ensure the protection of the rights and privileges of journalists in the performance of

their duties;

vii. advise the government or the relevant regulatory authority on matters pertaining to

professional, education and the training of journalists and other media practitioners;

viii. make recommendations on the employment criteria for journalists;

ix. uphold and maintain the ethics and discipline of journalists as set out in this Act and

any other relevant law;

x. Do all matters that appertain to the effective implementation of this Act.

xi. compile and maintain a register of journalists, media enterprises and such other

related registers as it may deem

xii. Conduct an annual review of the performance and the general public opinion of the

media, and publish the results thereof in at a least two local newspapers.

27

The Act gives specific mention to article 33(2) of the constitution, that the rights specified are

safeguarded by the council and every person this Act applies.44

In the aftermath of the Westgate Attack,45 allegedly by the Al Shabaab, in retaliation for the

Operation Linda Nchi (Operation Protect the State)46 in Somalia. The operation began in

October 16, 2011; the Kenya Defence force soldiers, with help from other security forces in

the region, were in pursuit of Al Shabaab militants that are alleged to have kidnapped several

foreign tourists and aid workers inside Kenya,47 they were also looking to put an end to the

civil war that has plagued Somalia since the 1980s. The Kenyan media houses were given

some regulations on how to best cover the on goings of the attack. Although the media was

subsequently blamed for giving ‘half-baked’ information to the Kenyan public compared to

the international media houses such as Al Jazeera and the BBC, they had to follow these

regulations, as the council is responsible for the conduct and discipline of journalists in the

country only, and had no such jurisdiction over the coverage of international media houses.

After the Westgate siege, the Nation Media Group (NMG) was under fire for published a

disturbing picture on its front pages on the Sunday Nation on the and the Editor in chief was

heavily criticised by the public and subsequently fired for it. Many were of the opinion that

this picture was against the provision in the Code of Conduct for the Practice of Journalism in

Kenya section 9 and in the Media Act, Second Schedule.48

A monitoring report done by the Council on the coverage of the Westgate attack released on

7th February 201449 revealed that 70% of the respondents felt that media failed to ask hard and

most critical questions of the attack of historical, cultural and social explanation of terrorism 44 Section 6 (2) of Act.45 The guardian - westgate-mall-attacks46 Criticalthreats.com website - Somalia,operation-linda-nchi47 "Kenyan troops pursue al-Shabaab into Somalia in Operation Linda Nchi". Al Jazeera website 48 ‘…publication of photographs showing mutilated bodies, bloody incidents and abhorrent scenes should be avoided, unless the publication or broadcast of such will serve public interest.’ - Second Schedule s.10 of the Act.49 Media Council of Kenya website

28

and instead focused on dramatic, most violent, bizarre, tantalising and brutal accounts of the

attack magnifying the impact of their horrifying brutality. The report noted breaches in

observing the professional obligations of journalists as required by Code of Conduct for the

Practice of Journalism in Kenya and social responsibility in commenting on public issues and

limitation to freedom of expression on national security grounds. Some of the ethical

violations noted included: Section 15 talks on Intrusion into Grief and Shock, where it

provides; ‘In cases involving personal grief or shock, inquiries should be made with

sensitivity and discretion.’50 Section 9 talks of obscenity, taste and tone of reporting,51 and

Section 20 on the use of pictures and names; ‘… Manipulation of pictures in a manner that

distorts reality should be avoided. Pictures of grief, disaster and those that embarrass and

promote sexism should be discouraged.’52

The Act also provides for the non-interference in the council’s operations and independence

of the council, separate from the government, political parties or any nominating authority.53

However, the council will depend on parliament for some of its finances to be appropriated

by parliament;54 this is apart from donations, gifts and endowments from lawful organisations

which shall not be foreign organisations nor foreign governments, levies and fees imposed

according to section 19, and from any investments made by the council.

The most important function of the media council is the power to resolve complaints and

disputes. Section 34 through to section 44 give the council the guidelines and due process that

should be followed by it during any of such proceedings, which is seen as one of the ways in

which the council can uphold and maintain the ethic and the discipline of journalists.

50 Code of Conduct for the Practice of Journalism in Kenya, Second Schedule of the Media Act51 Refer to article 34 (3) of Constitution52 Refer to article 34 (5) of Constitution53 Section 554 section 18 (i)

29

The Act gives the composition of the complaints commission consisting of five members,

chairperson who is a judge of the high court or an advocate of high court of Kenya not less

than ten years and four members who possess expertise and experience in journalism, media,

law and policy, media regulation, business practice, education or related social issues. These

members of the Complaints committee shall not be members of the Media Council.

Complaints are lodged by any person aggrieved by any publication, conduct of a journalist,

media enterprise or the Council; or, anything done against a journalist or media enterprise

that limits or interferes with constitutional freedom of expression of the journalist or media

enterprise.55 Upon the receipt of a complaint, the Commission shall notify the person, whom

the complaint has been made against within 14 days, giving the date the Commission shall

consider the matter, to be replied by respondent in writing. The Commission the makes a

report, issue any decisions as appropriate, give directions and publish the findings for the

public to see, if the matter is in public interest to do so.56 Otherwise subject of the dispute

shall be published in the Gazette. This decision made must be communicated within 14 days

of the finding and made known to the parties concerned. This Commission also has the

powers to summon any person to give reasonable assistance in investigations, appear before

the commission for examination concerning relevant matters.

Appeals against the decisions made by the Commission can be made to the Council within 14

days of it, where the council shall vary, reverse or confirm the decision of the Commission;

this communicated within 14 days from the date such decision was made. Further appeal can

be made to the High Court on a point of law; no appeal shall be admitted unless a judge of the

High Court has certified the existence of an issue of Law.57 A person who contravenes any

provision of this Act or regulations made thereunder for which no penalty is specifically

55 Section 34 of Act56 Section 35 (5)57 Section 32(3) (a)

30

provided for shall be liable upon conviction to a fine not exceeding two hundred thousand

shillings, or to imprisonment for a term not exceeding six months, or both.58

One iconic case that the Commission dealt with is Uhuru Kenyatta v The Star Newspaper and

Jerry Okungu. The then Deputy President Uhuru Kenyatta, lodged a complaint with the

Media Council of Kenya on 7 February 2012 against The Star Publications Ltd and Jerry

Okungu in respect of an article published on 6 February 2012 titled "What if Uhuru - Ruto

win?" written by Jerry Okungu. The argument was that the article would damage his cases

the ICC, as evidence in newspaper clippings could be presented as was done with another

article previously written by another writer that he didn’t contest.

"Firstly the nation and the rest of the world will be stunned because their trial for crimes

against humanity will probably be in progress... Their election will remind the world of

populist Adolf Hitler in the early 1930s when he won the German elections in a landslide,"

wrote Okungu. The complaint stated that the article was offensive and biased in breach of

section 35 (1)59 of the Act and section 1 (a) on Accuracy and Fairness of the Code of Conduct

for the Practice of Journalism60.

The respondents argued that they did isolated opinion from fact in the article but the

Commission ruled in the complainant’s favour. The Star Newspaper was ordered to retract

the article and apologise over the article it published. The Complaints Commission, chaired

by Grace Katasi with Peter Mwaura and Murej Mak'Ochieng being the other members of the

Commission. Additionally, the newspaper was directed to pull down the same article from its

online edition. The council directed that the apology should be published on the Star website

with immediate effect for seven days after the ruling and a reprimand by the Media Council

58 Section 3859 ‘The media shall, in a free and independent manner and style inform public…in a fair, accurate and unbiased manner…isolating opinion from fact’60 This Code of Conduct for the Practice of Journalism is found in the Second Schedule of the Media Act

31

to be published in two other dailies with wide circulation. They however could not order The

Star and the writer to pay damages, as demanded by the complainant, as they have no

authority to do so under the Act.

2.0.3 Kenya Information and Communications Act

The Kenya Information and Communications Act was created to provide for the

establishment of the communications Commission of Kenya, to Facilitate the development of

the information and communications sector (including broadcasting, multimedia,

telecommunications and postal services) and electronic commerce to provide for the transfer

of the functions, power, assets and liabilities of the Kenya Posts and Telecommunication

Commission, the Telcom Kenya Limited and the Postal Corporation of Kenya, and for the

connected purposes.61

The Acts creates the Communications Commission of Kenya which has the mandate to

regulate and licence telecommunications and postal services.62 The act also expressly states

that the commission is to be independent of any person or body,63 however the Cabinet

Secretary has the mandate to issue general guidelines to the Commission relating to

provisions of the act as may be appropriate64 which shall be gazetted.

61 Part 1 – Preliminary of the Act62 Section 5 (1) to (4)63 Section 5B of64 Section 5A (1) to (2)

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2.1 International Law Framework Relating To Media

Freedom

In addition to the local laws that we have provided in the constitution and the other subsidiary

laws enacted by public, the Republic of Kenya also subscribes to international, continental

and regional laws, as the constitution says; ‘the general rules of international law shall form

part of the law of Kenya’65 it goes on further to say that; ‘any treaty or convention ratified by

Kenya shall form part of the law of Kenya under this constitution.’66 The Republic of Kenya

is a signatory to various treaties and conventions.

2.1.1 The Universal Declaration of Human Rights

The Universal Declaration of Human Rights was adopted by the United Nations General

Assembly on 10 December 1948 in Paris, France. The Declaration arose directly from the

experience of the Second World War and represents the first global expression of rights to

which all human beings are inherently entitled to. Of particular interest of this declaration in

relevance is;

‘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.’67

This section of the treaty clearly supports the dissemination of information to the public,

which is tasked primarily to the media. The Universal Declaration of Human Rights was

ratified by Kenya in the year 1990 July 31st which in effect made this law applicable in

Kenya.68

65 Article 2(5) constitution of Kenya.66 Article 2(6) constitution of Kenya.67 Article 19 of the UDHR68 See note 60

33

2.1.2 The International Covenant on Civil and Political Rights

Kenya is also member of the International Covenant on Civil and Political (ICCPR). The

ICCPR was accepted on 16th December 1966, has been in force from 23rd March 1976. It

commits its parties to respect the civil and political rights of individuals, including the right to

life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights

to due process and a fair trial. Kenya ratified the ICCPR in 19. The treaty states that,

‘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 wording in the ICCPR is more or less the same as that in the UDHR concerning the issue

of freedom of expression, and this is taken to also include the media or press, as it goes on

further to say that person are fee to express regardless of the media used, be it radio,

magazine, newspapers, periodicals et cetera.

2.1.3 The Windhoek Declaration

In the year 1991, African newspaper journalists put together the Windhoek Declaration. The

Declaration was the outcome of a long and frank look at the problems of African print media.

The document enumerates instances of intimidation, imprisonment, and censorship across

Africa. With a strong belief in the connection between a fully independent press and

successful participatory democracy, the document calls for free, independent and pluralistic

media throughout the world. It also asserts that a free press is essential to democracy and a

fundamental human right.

34

Among other things the declaration states;

i. African States should be encouraged to provide constitutional guarantees of freedom

of the press and freedom of association.69

ii. All funding should aim to encourage pluralism as well as independence. As a

consequence, the public media should be funded only where authorities guarantee a

constitutional and effective freedom of information and expression and the

independence of the press.70

iii. To assist in the preservation of the freedoms enumerated above, the establishment of

truly independent, representative associations, syndicates or trade unions of

journalists, and associations of editors and publishers, is a matter of priority in all the

countries of Africa where such bodies do not now exist.71

2.1.4 The African Charter On Human And People’s Rights

The African Charter on Human and Peoples’ Rights, also known as the Banjul Charter, is an

international human rights instrument that is intended to promote and protect human rights

and basic freedoms in the African continent. Oversight and interpretation of this charter is the

mandate of the ACHPR (1987) and subsequently protocols were adopted in 1998, where the

African Court on Human and People’s Rights was to be created. This protocol came into

effect on 25th January 2005.

The charter states that;

69 Article 9 of the declaration of Windhoek70 Article 11 of the declaration of Windhoek 71 Article 12 of the declaration of Windhoek

35

i. Every individual shall have the right to receive information72

ii. Every individual shall have the right to express and disseminate his opinions within

the law.73

The Declaration on Principles of Freedom of Expression in Africa also endorsed and

reinstated the need for the freedom of expression in Africa and was adopted by the ACPHR

as well.

2.2 Conclusion

The national and international legal framework on media freedom recognises the relationship

between a good democracy and the media. The first mentioned international instrument, the

Universal Declaration of Human rights, stemmed from the world powers seeing the need for

freedom of expression and that this went hand in hand with the media being free and fair. It is

of the opinion of many that a free media contributes to good governance, empowerment of

the peoples and in eradicating poverty,74 as the free expression right enables many citizens as

possible to contribute to as well as monitor and implement public decisions on development.

As Kenya is party to and legally bound to these mentioned international legal instruments, the

intention of the country’s leaders to provide a level field for the media fraternity to work

properly and be able to contribute to the society can be clearly seen and interpreted as such in

order for the country to move forward.

72 Article 9(1) of the ACHPR73 Article 9(2) of the ACHPR74 High Level Panel report of UNESCO (2014)

36

37

CHAPTER THREE

THE STRUGGLE FOR MEDIA FREEDOM IN KENYA

3.0 Introduction

This chapter looks at the struggle for media freedom in Kenya after independence in 1963,

the challenges met by journalists and steps taken to try and rectify these hurdles faced by the

media fraternity.

At the moment, Kenyan media is regarded as one of the most liberal in the African continent

where the rights are protected constitutionally, but this has not always been the case since

independence. Kenya has a long media history, much of which spent operating under

conditions of one-party rule that lasted until 1992. During this time the government

dominated broadcast media with a monopoly on radio and television. This was through the

state - owned Kenya Broadcasting Corporation, then called Voice of Kenya.

In 1982, The failed coup d'état attempted to overthrow President Daniel arap Moi's

government at midnight on Sunday, 1 August 1982, a group of soldiers from the Kenya Air

Force took over the radio station Voice of Kenya and forced the presenters to announce that

they had overthrown the government. This was under the instructions of one Hezekiah

Ochuka who, it is reported, was obsessed with becoming the next president of Kenya75.

However, the government and private sector competed in the print media, allowing the

development of independent-minded journalists. Once the broadcasting sphere was opened,

also in 1992, the private sector immediately began investing in it and several FM radio

stations opened. Investment in print media also increased and more newspapers and

75 Gachuhi Roy, Daily Nation: ‘How Heroic Trio of Fighter Pilots Scuttled mission to bomb State House and GSU’ (2009)

38

magazines hit Nairobi’ streets. This growth in the media and new political freedoms resulted

in a wave of reporting critically of the government.

Rights of the media being curtailed in more recent times can be linked to the incident where

Lucy Kibaki, wife of the 3rd president of the republic of Kenya, stormed into the Nation

Media House.76 She accused the paper, The Nation, of printing lies about her behaviour on

Friday night, when she disrupted a party for the outgoing country director of the World Bank,

Makhtar Diop, who lives next door to the president's private home. She denied that she

insulted Diop and his mother and attempted to disconnect the amplifier cables even after the

host of the party agreed to turn it down. This is despite the eye witness accounts77 of the

attending guests who claimed that Diop had to be restrained from talking back at the former

first lady. They claim she was spoiling for a fight with the outgoing director so whatever

efforts that they had to calm her down were futile.

Lucy Kibaki was demanding that the paper take down this article as it was illegal and a crime

to report such things about the first family, which was not the case. What she failed to realise

is that such threats only worked in the previous Moi regime where such blatant disregard for

the law by people in power was quickly hushed up, and whoever dared to go against such a

directive suffered some consequences. Her claims of the article being illegal and a crime

were unfounded by the mere fact that the media has the right to write and report what the

public would probably want to know about the first family.

In my opinion this sort of writing would help to keep politicians and other influential

members of the society in check and to leave aside ill motives and inappropriate behaviour by

them. What aggravated the media fraternity even more was the fact that this all happened

during the World Press Freedom day.78

76 President's wife storms Kenyan newspaper (for The Guardian, 2005) by Jeevan Vasagar77 The Daily Nation May 200578 President's wife storms Kenyan newspaper (for The Guardian, 2005) by Jeevan Vasagar

39

3.1 The Challenges Faced By the Media in Kenya

The following are some challenges faced by journalists:

3.1.1 Threats, Arrest, Violence and Death.

A special report by the Committee to Protect Journalists, (CPJ) released in July 2015,

observed that a combination of legal and physical harassment is making it extremely difficult

for journalists to work in Kenya freely, at a time when public discourse and transparency are

essential.79 The report observed that the current constitution sought to ensure that the

country’s media and information, communications and technology sectors develop and thrive,

however, there are signs that old efforts to control the media are undermining this freedom,

through restrictive legislation,80 commercial pressures and threats and attacks on individual

journalists81 and bloggers.

The Kenya Media Programme (KMP) through its partner, the Media Council of Kenya,

launched a report82 to commemorate the World Press Freedom Day. It covered the 47

counties in Kenya and interviewed over 300 journalists working in the state and came up with

the statistics that over 90% of journalists have threatened at least once in their career, 53.9%

have been threatened at least twice and almost 20% have had more than five threats to them

in their career, the majority of these being politically motivated threats followed by threats

stemming from articles and publications that touched on land and corruption.

Two journalists in the month of April 2015 were attacked by army officers and had to seek

medical attention, one had a broken leg.83 They had gone to Tana River County to investigate 79 Broken Promises: How Kenya Is Failing To Uphold its Commitment to a Free Press by Sue Valentine and Tom Rhodes for CPJ (July 2015)80 See footnote 75 and 76 about the PPPB81 In 2015 alone more than 7 journalists have reportedly been killed, hurt or physically threatened due to stories and reports they have published.82 Safety and Protection of Kenyan Journalists; Is it Common sense or Common Sense. (May 2015)83 Broken Promises.

40

residents’ claims that local paramilitary police had impounded about 200 cattle for allegedly

trespassing and were demanding bribes, about KSH500 per head, to release the animals. It is

reported that before the two left the vehicle they were travelling in, about 15 officers attacked

them and beat them with wooden clubs and metal rods, also destroying their equipment.

According to reports by one of the journalists attacked, Nehemiah Okwemba of NTV.84 Also

injured during this attack were the political advisor to the Governor of Tana River County, a

communication official and the driver.

John Kituyi, the founder of the western Kenya-based newspaper, the Mirror, was murdered as

he disembarked from a bus near his home in Eldoret town according to established reports he

was receiving death threats after a story he had published. He was found with deep cuts

around his neck and bruises all over.85

Boniface Mwangi, a prolific Kenyan activist wrote to Uhuru Kenyatta a letter dated

December 17 2014, through the National Council on the Administration of Justice (NCAJ),86

seeking protection for his life as an ordinary citizen. Mwangi is known to have organised

high – profile protests against MPs and insecurity among others and being a strong critic of

injustices allegedly perpetrated by government and/or government officials. The writing of

this letter brought to light the plight of another journalist, Mohammed Ali, who went into

hiding at a safe house as he feared for his life. Ali is another strong critic of injustices and

does many insightful documentaries that rock the status quo. Many human rights

organisations released statements condemning these threats in December 2014.

Justus Ochieng’ was also threatened with ‘dire consequences’ in November 2014 for a story

published in The Star newspaper, which alleged criminal activity carried out by police

84 Journalists, County Officials assaulted by Tana River GSU Officers – by Galgalo Bocha and Winnie Atieno (Daily Nation April 18th 2015)85 From the Bloomberg Newsdesk, 1st May 2015 by Sarah McGregor86 Daily Nation, 3rd January 2015

41

officers in Kisumu87. These are but a few stories of journalists who have been threatened by

for carrying out the work they are mandated to do. Many of these journalists and activists cite

that reporting to the police is as good as not reporting at all, because no action is taken and

the matter quickly is quickly put aside.

3.1.2 Media ownership and Advertising Powers

Media ownership and advertising is also seen as a curb to critical reporting88 this is because

major stakeholders of big media houses are politicians and thus the government intrudes into

news gathering and dissemination and advertisers hold sway over the newsrooms, according

to Othieno Nyanom who is an independent media and development researcher. Thus

journalists find it hard to report on matters that may affect a stakeholder and consequently

find himself or herself jobless.

In 1964 the first president of Kenya, Jomo Kenyatta nationalised the Kenya Broadcasting

Corporation, renamed it Voice of Kenya and made it answerable to what was called the

Ministry Of Information Broadcasting And Tourism. It is reported that the current president,

Uhuru Kenyatta’s family has a controlling stake the Mediamax which recently bought out

Mombasa based PiliPili FM and independent Milele FM, which consequently brought down

the listenership of both stations according to the Kenya Audience Research Foundation.89

Nyanjom is of the opinion that media offers opportunities for self - enrichment, motivated by

potential economic returns or likely political harvest.90

According to Standard Group’s David Ohito, major corporations can plant stories, influence

editorial decisions and even ask for stories to be spiked just so that they may not reflect badlt 87 The Star newspaper88 Broken Promises: How Kenya Is Failing To Uphold its Commitment to a Free Press by Sue Valentine and Tom Rhodes for CPJ (July 2015)89 3.3 million listeners end of 2014, compared with 4.9 million in the first ¼ of 201390 Factually True, Legally Untrue: Political Media Ownership in Kenya – Othieno Nyanjom (November 2012)

42

on them. He states that “You will now see things I never saw in my first decade of journalism

– a group of CEOs walking into the editor’s office. That sort of formalising intimidation of

newsrooms has become the norm91”

Mark Kapchanga published in the Standard alleging excessive expenditures for a presidential

retreat in March 2014. This lead to the papers editors summoning to State House, the official

residence of the president, and they were reminded by a communications officer that the

government had a 70 million - shilling advertising deal that would continue as long as the

paper published an apology for allegedly inflating the cost of the retreat. This was done,

despite a consensus in the newsroom that the story was accurate according to journalists

familiar with the episode. The Standard subsequently fired Kapchanga and the Managing

editor Chacha Mwita.

Such power and control are making many Kenyans not trust mainstream media and online

journalism is taking hold of this and giving the public stories not covered by them. Njeri

Wangari,92 pointed to an incident where two MPs insulted and threatened attendants at a

weighbridge who had refused to process their vehicle because of lack of proper credentials.

The video of this incident taken on the mobile phone of one of the officers was sent to

bloggers and it was widely shared.

3.1.3 Legislation and Legal Processes

On the 4th September, News Editors, parliamentary journalists and the Commission for the

Implementation of the Constitution (CIC) have petitioned the National Assembly to expunge

offensive clauses in the Parliamentary Powers and Privileges Bill 2014 (PPPB) that bars

media from scrutinising the business of the House. Editors Guild Chairman Linus Kakai

91 Broken Promises92 Director of Programs at the Bloggers Association of Kenya(BAKE)

43

questioned the motive behind Parliament’s renewed move to gag the media, adding that the

Eldas MP Adan Keynan, who sponsored the Bill, cannot stop progression of the media.93

The clauses in the bill are seen as highly retrogressive and will effectively nullify the gains

made by the media over the last 15years. CIC released an advisory opinion urging the House

to delete the provisions because they generally limit certain rights, without qualifying the

justification, nature and extent of the limitation as required by the Constitution, where

limitation of rights can be by the law, and then only to the extent that the limitation is

reasonable and justifiable.94 Other provisions in the Bill provide for privileges and immunity

of members from legal proceedings95 and freedom from arrest for civil debt96 during a session

of Parliament. The clause of the PPPB for members of parliament being exempt from any sort

of legal proceedings was made public by the media that caused a lot of outrage from the

public civil and human rights bodies.

The government has passed several pieces that undermine the self - regulation of the media as

per the Constitution; these are currently in court after being challenged by the bodies such as

the Kenya Editors’ Guild, Kenya Union of Journalists and Kenya Correspondents

Association. Journalists cite that the laws are too vague as one could be removed from the

register for ‘not sticking to issues.’

The Kenya Information and Communications (Amendment) Act 2013 was opposed because

it undermined the process of self - regulation by creating a government appointed

Communications and Multimedia Appeals Tribunal97 answerable to the state-controlled

Communications Authority of Kenya. The hefty fines that the tribunal could impose for

93 This was said at a press conference held after the PPPB bill passed the first stages in parliament, 201494 The Daily Nation95 Clause 11(1) of PPPB96 Clause 11(2) of PPPB97 Section 3of the Act; read with section 102 - Establishment of the Appeals Tribunal ‘for the purposes of arbitrating in cases where disputes arise between the parties under this act and such matters as may be referred to it by the minister…’

44

breaching code of conduct were heavily criticised and opposed. This law was suspended in

February 2014 by the High Court.

Another law that is clashing with the constitution when dealing with freedom of the press is

the Official Secrets Act98 that prohibits the possession or dissemination of official information

despite the constitution99 providing for this. It is argued that the article in the constitution is

not clear on what is important or not and thus officials can claim certain information is not

important and the citizenry do not need to know.

Criminal defamation, also known as seditious libel, remains in Kenyan laws. This is despite

many bodies, such as the African Commission on Human and People’s rights and the Pan –

African Parliament, have called for such laws to be abolished. The ACHPR in October 2012

heard a report100 during its 52nd Ordinary session, the 25th anniversary of the Commission

outlining the successes and progress made, challenges faced since creation of the mandate of

the Special Rapporteur as a special mechanism of the Commission. The report quoted the

declaration where it provides: “states should ensure that their laws relating to defamation

conform to the following standards;

i. No one shall be found liable for true statements, opinions regarding public figures

which it was reasonable to make in the circumstances

ii. Public figures shall be required to tolerate a greater degree of criticism; and

iii. Sanctions shall never be so severe as to inhibit the right to freedom of expression,

including by others101

The Commission therefore adopted resolution in 2010, that the report recognised, calling for

state parties to repeal criminal defamation laws or insult laws which impede freedom of 98 Revised edition 2009(1970)99 Article 35(3) – ‘…The State shall publish and publicise any important information affecting the nation…’100 Special Rapporteur On Freedom Of Expression And Access To Information In Africa, part D

101 Principle XIII(1) of declaration

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speech, and states that have decriminalised such laws should have implementing legislation

to ensure that the decriminalisation is done in practice.

This decriminalisation of defamation laws was seen in the landmark ruling in Konate v

Burkina Faso102 where journalist Issa Lohe Konate was jailed for defamation. The African

Court on Human and People’s Rights found that Burkina Faso violated international treaties

that defended freedom of expression by jailing him

The Media Council of Kenya (MCK) is responsible for self – regulation of media content,

while the Communications Authority of Kenya regulates the communications sector.

Licenses are given to foreign and local journalists by MCK to practice in the country in order

to ensure competence and credibility. This is not a process that is opposed by journalists;

however, the problem arises when officials use it to arbitrarily exclude reporters.103 Research

by the CPJ showed that such practices run counter to best democratic practices as they are

open to abuse. The Inter – American Court of Human Rights, while examining a case from

Costa Rica (1985), found that giving licences to some journalists and denying them to others

deprives individuals in the said country the ‘full use of the mass media as a means of

expressing themselves or imparting information.’

CHAPTER FOUR

TOWARDS SELF – REGULATION OF THE MEDIA IN KENYA

This chapter will look at the benefits of self – regulated media and propose that it be the way

forward for Kenya’s media.

102 Konate the editor of Burkina Faso based weekly was sentenced to 12months imprisonment and fined 4,000,000 francs (6000euros) in the year 2012, for allegedly defaming Placide Nikiema in two articles raising questions about alleged abuse of power by the prosecutor’s office in high profile cases.103 Broken Promises

46

4.1 Introduction

It is recognised that me media plays a vital role in the society hence numerous laws local and

international that seek to ensure the media is free and independent from outside influences,

especially the government.

The preambles of the international laws all recognise that the press and democracy cannot be

separated and have to complement each other either is going to work. A free media helps the

voters in a country make proper informed decisions during elections are they dissect and

disseminate information about the candidates and their proposed agendas for the next terms.

Corrupt officials and non performing public servants that cause some form of stagnation in

the development of a sector and/or state are exposed and this helps with development, and

getting rid of socio-economic ills.104

Kenya has many laws that affect the press and all the laws seek to ensure that the media is

free and independent of outside influence, especially the government and related parties. In

the Windhoek Declaration, for example, the document expressly states that a democracy and

free press are directly linked and they cannot be separated and that it is a fundamental human

right as also championed in the UDHR. As a fundamental human right, free media plays a big

role as a force of progress and this cannot be ignored.105 The media is more than a source of

news and opinions but it also exposes abuses of power, fights corruption, challenges

assumptions and provides constructive outlets for new ideas and dissent.

Many are of the opinion that when this fundamental human right is in jeopardy, all other

rights are under threat. This is because the media is what is used to expose any injustices and

wrong doings in the society and world at large. Non - exposure of this spells disaster and that

people may be wrongfully imprisoned, property taken away106 and other things without the 104 Konate v Burkina Faso, see footnote 104105 Hillary Clinton’s speech during the World Press Freedom Day (2009)106 See footnotes 83 and 84

47

press being able to report on these findings and thus the meaning of a democracy is not felt.

For elections to work in a democracy there has to be a free media where the citizenry can be

able to freely discuss both their system of government and what each government does.107

Where leaders’ biographies, what they stand for, promote and are against, can be freely

discussed and criticised and/or praised and the people can be able to make more informed

decisions, for the betterment of the society at large.

4.2 The Media in Republic of South Africa

The Press Freedom Index is an annual ranking of countries complies and published by

Reporters without Borders based upon the organisation’s assessment of the countries’ media

freedom records in the previous year. It reflects the degree of freedom that journalists, news

organisations enjoy in each country and the efforts made by the government to respect and

ensure respect of this freedom.108

South Africa has been ranked as having one of the most liberal presses in Africa according to

the Index. The constitution of South Africa guarantees freedom of expression;109 everyone

has the right to freedom expression, which includes – Freedom of the press and other media;

Freedom to receive or impart information or ideas; Freedom of artistic creativity; and,

Academic freedom and freedom of scientific research.

The media in RSA is regulated by the following independent bodies;

107 People Power: a User’s Guide to democracy in the UK – Dan Jellinek (Transworld)108 Press Freedom Index 2014: Reporters Without Borders - May 2014109 Section 16

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4.2.1 Independent Communications Authority of South Africa

(ICASA)

It was established to regulate both the telecommunications and broadcasting sectors in the

public sectors in the public interest. The Authority derives its mandate from the Constitution

of South Africa, a licensing body, a regulator and a quasi - judicial body because it licences,

regulates, adjudicates and issues sanctions,110 the Electronic Communications Act, which

gives rise to the Authority.

The mandate of ICASA is:

(i) To make regulations

(ii) To licence broadcasters, signal distributors, telecommunications providers and

postal services.

(iii) Impose licence conditions

(iv) To give effect to the Electronic communications Act of 2005; and

(v) To decide on complaints.

The ICASA is considered an independent oversight authority and only seeks to reconcile with

the Minister for Communications in making regulations for it to follow.

4.2.2 Broadcasting Complaints Commission of South Africa

(BCCSA)

The BCCSA is established by the National Association of Broadcasters (NAB) to enforce a

code of conduct for television and radio in South Africa. The Commission receives

complaints from the public about offensive broadcasts and has the power to reprimand or fine

110 Section 34

49

broadcasters and to require the broadcast of a correction or an apology.111 The BCCSA is

independent of the NAB and the government although it’s funded by the NAB and

recognised by the ICASA as an independent disciplinary tribunal.112

4.2.3 Press Council

The preamble of the Constitution of the Press Council of South Africa states that ‘we the

print media in South Africa therefore establish a voluntary independent co – regulatory

system involving exclusively representatives of the press and representatives of the public

with the aims and objectives set out in this constitution.’

The aims and objectives of the Council are enumerated as below:

(i) To promote and to develop ethical practice in journalism and to promote the

adoption of and adherence to those standards by the SA press

(ii) To adopt the SA Press Code as a guide to excellent practice and to act as its

custodian

(iii) To establish and maintain a voluntary independent mechanism to deal with

complaints abot journalistic ethics from the public against member publications

of PMSA and others who subscribe to the SA Press Code

(iv) To promote and preserve the right of freedom expression, including freedom of

the press as guaranteed in section 16 of constitution of RSA.

The constitution of the press council states that the effectiveness of self - regulation by

the print media is enhanced by public participation in a co – regulatory process113 pointing

out the freedom of expression guaranteed by the SA constitution, and the Declaration of

111 Section 3.11 of the constitution of the BCCSA112 About the BCCSA113 Preamble

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Principles on Freedom of Expression in Africa (2002) that states that ‘effective self –

regulation is the best system for promoting high standards in the media.’

The SA government takes the freedoms of expression and the media that are enshrined in

the constitution of the country and this has led to the country having a fairly free press in

the continent and the world over. This has led to the country being at the forefront of

democracy in the continent and a more informed people who know there rights that are

enshrined in their constitution.

Kenya, too, has many laws that advocate for the self – regulation of the media and protect

the media following the footsteps of South Africa the country can develop and grow in

the sector and other sectors as well.

4.3 Media Democracy

Media democracy is a set of ideas advocating reforming the mass media strengthening public

service broadcasting and developing and participating in alternative media114 and citizen

journalism.115 The purposed for this is to create a mass media system that informs and

empowers all members of the society and enhances democratic values.116 It dictates that

media system itself should be democratic in its own construction, shying away from private

ownership or intense regulation.

Media democracy advocates for:

114 This is media which provides alternative information to the mainstream media in a given context, whether the mainstream media are commercial, publicly supported or government owned.115It is also called public or participatory journalism. It’s based upon citizens playing an active role in the process of analysing collecting, reporting and dissemination news and information.116 The Pen and the Sword: Press, War and Terror in the 21st century – Calvin F. Exoo (2010)

51

i. Replacing the current libertarian media model with one that operates democratically,

rather than for profit117

ii. Strengthening public service broadcasting

iii. Incorporating the use of the alternative media into the larger discourse

iv. Increasing the roll of citizen journalism

v. Turning a passive audience to active participants

vi. Using the mass media to promote democratic ideals.

Proposers of this media democracy are against the current competitive structure of the media

since this competition effects how stories are framed and transmitted to the public, as seen

under the topic of Media Ownership and Advertising Powers.118

4.4 Conclusion

It is not a surprise that a free media has some trials that come with the self - regulation,

however theses are minute compared to the great feats that can be achieved and have been

achieved through a press that is not clamped down by retrogressive rules and regulations and

this works out for the betterment of the society at large. Holistic development can be helped

through the media.

117 The Star newspaper has had over 100 lawsuits filed against it for articles and now have allegedly decided to choose what to publish as these suits were eating into their profits.118 See footnotes 87 to 90

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CHAPTER FIVE

STEPS TOWARDS A SELF - REULATED MEDIA IN KENYA

This chapter shall draw conclusions give recommendations for the way forward for the media

and government in Kenya.

5.1 Introduction

As discussed earlier, a free and independent media is the most ideal scenario for a democracy

such as Kenya. Free media contributes to the society much more than giving news and

information to the masses and this role cannot be ignored.

5.2 Conclusion

Kenya has had its fair share of problems from colonial times to post – independence in

relation to freedom of the press and the country is currently moving in the right direction for

a better free and independent media.

The first being the constitution that has ensured that the media is recognised as an integral

part of the democracy and that their interests are protected119, unlike in the previous

constitutions. The current constitution then sets the pace for the subsidiary laws to be more

specific in the admission of free press.

The challenges that the press encounter are known and highlighted regularly by the press, and

other interested parties, with the dangerous temptation to use the security threats facing

Kenya to censure or silence the press—as witnessed after the attack on Westgate mall and

other violent incidents. As U.N. Secretary General, Ban Ki-moon, observed at a White House

summit on countering violent extremism: “Governments should not use the fight against

119 Article 34

53

terrorism and extremism as a pretext to attack one’s critics.” Veteran journalist and lecturer at

the University of Nairobi’s School of Journalism George Nyabuga told Committee to Protect

Journalists, CPJ, that if issues of national concern are not addressed and exposed by an

independent media, abuses will continue. “How can we project positive development if left in

the dark?” Nyabuga says that a censored press contributes to curbed development and a

dangerous status quo, allowing inimical elements in Kenyan society to thrive.120

Many issues still remain which should be raised and debated. In particular, the laws that are

not in line with the constitution that are retrogressive in nature and undermine the whole

point of the new 2010 constitution. This should define the outer reaches of state discretion in

press control. There is also need to discuss the theoretical premises upon which the

assumption that law is a ‘natural’ regulatory mechanism is based.121 The media and

government of Kenya cannot be completely separated and they should world together for the

greater good of the state, that is, to further development. Checks and balances are in place so

as to make sure that the other toes the line and does what it is mandated to do. Self -

regulation of the media may be disastrous in that partisan views may take root and this may

further polarise the country, while full government regulation may see impunity take root

deeper than ever and this may hinder the development of the country.

In my opinion if a delicate balance of the two can be achieved where the one checks the other

there would be a much better environment for development. The media can help keep checks

on the government on behalf of the citizens for the goals that had been set out for itself and

can keep the citizens calm in times of uncertainty, for example, during ethnic clashes and

keep matters of national interest and security at bay.

120 Broken Promises 121 Law and the Mass Media by A. Okoth - Owiro

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5.3 Recommendations for a Free Media in Kenya

Despite all these problems that are seemingly never ending and recurring, the future for

Kenyan media does not seem too bleak. There are plenty of local and international policies

that seek to protect the profession.

First the journalists need to realise that they are first Kenyans, the profession comes second.

The KMP during its fact finding report that the Programme Officer Anthony Wafula hoped

that media houses would start to take interest in its employees in the hostile environment and

not the bottom line. The journalists should be confident in that they should be able to assert

their rights as Kenyans against harassment, torture and threats from state officials and private

persons.

The following are some more recommendations: for the Media Council of Kenya,

i. Set up a dedicated system to document and support journalists who have received

threats in relation to their work and engage the authorities to pursue justice.

ii. Roll out a systematic series of meetings between county officials, journalists, and

editors to build a common understanding of press freedom and the role of the

media in a democratic society, informed by Kenya’s constitutional safeguards.

The Journalists:

i. Can take advantage of the laws that guarantee their freedoms and appoint persons

in their relevant professional bodies who shall champion and challenge the

government in implementing these policies that already exist. The media should

have a common goal or vision for the country that would guide the journalists in

the projects and stories they undertake that would work towards this goal or

vision.

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ii. The media should be assertive and responsible and play active roles in the

championing of advancing democracy, human rights, good governance and socio-

economic transformation of the society. Together with the common vision and

goal, the culture of impunity would quickly not be tolerated within circles. The

government, media industry, media civil society

To the media houses,

i. Ensure a clear separation between editorial and commercial departments so that

journalists are free to investigate and report without fear of influence from special

or powerful interests.

ii. Embrace the Global Safety Principles and Practices122 and provide appropriate

security and hostile environment training for staff and freelance journalists,

support them in the event of threats or attacks, and hold police accountable for

thorough investigations.123

.

122 Developed by the CPJ in February 2015, after the rise in killings of journalists while on duty. They are recommended safety measures that media houses should adopt to ensure the safety of the journalists, the profession and the vital role they play in society.123 Broken Promises

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