Many commentators expected change for the better when the Constitution was adopted because it provides a new, comprehensive legal framework guaranteeing freedom of expression (Article 33) and of media (Article 34), and access to information (Article 35) - some of the strongest guarantees in sub-Saharan Africa. And, unlike its easily amended predecessors, the new Bill of Rights cannot be amended without a referendum.
The constitution cannot provide all the detail necessary to deal with all circumstances. Kenya has therefore fast tracked the enactment of specific legislation, including laws touching on freedom of expression and the media.
The first eight years of implementation witnessed some significant positive developments. They also reveal the lingering struggle to move away from the exceedingly conflict-ridden period between independence and the early 1990s, and to resist deep-seated interests that grasp every opportunity to retain the status quo, or to manipulate reforms.
Parliament in 2013 enacted the Kenya Information and Communications (Amendment) Act, [KICA] and the Media Council Act (MCA), claiming that they were meant to entrench freedom of expression as well as guarantee access to information. The reality was rather different. KICA establishes a Communications Authority (CA) and a Communication and Multimedia Appeals Tribunal, which can fine media houses and journalists, recommend de-registration of journalists and impose other sanctions.
The MCA established the Media Council as required by the Constitution, to set media standards, and monitor compliance with them. The board must reflect diverse interests of society and be independent of government control or the influence of political and commercial interests. Its Complaints Commission is to resolve complaints by media consumers and subjects against media practitioners and houses.
The laws do offer limited gains, including that the executive no longer selects members of the Media Council.
However, KICA gives the President or Cabinet Secretary the final say in appointments to the Board of the CA – which regulates the broadcast and telecommunications sector. They create punitive penalties for media outlets and journalists including fines of up to KShs 20 million for media outlets and half a million shillings for individual journalists who breach provisions of KICA (s. 102E).
The courts have however been strong. For instance, the High Court found section 29 of KICA that criminalised misuse of licensed telecommunications system to be unconstitutional as it was over broad (Geoffrey Andare v Attorney General ).
In Coalition for Reform and Democracy v Republic of Kenya five judges of the High Court declared eight sections of the Security Laws (Amendment) Act unconstitutional, two of them for violation of the freedom of expression.
Remembering the past to protect the future
The past reminds us why vigilance must be eternal. The judiciary, in the past, repeatedly failed to provide protection against state hostility towards media practitioners. That history – which we cannot recount here – shows how important an independent judiciary is to preserve our freedoms including that of expression.
The 1963 Independence Constitution of Kenya broadly guaranteed freedom of expression for the individual and not freedom of the media. The independence government never sought to change this, and retained most of the laws that denied the wider population these freedoms, and passed many others unduly limiting freedom of expression and circumscribing media operations.
Tom Mboya, set the tone for what was to be the relationship between the press and the government.
Does this press in Africa recognize that in our special circumstances it has a duty to Africa and in fact we expect it to make constructive contribution toward our general efforts?
The colonial Books and Newspapers Act was amended in 2002 to increase penalties, and raise the bond that newspaper publishers must post with government in case they are convicted of a crime to one million shillings. This requirement saw many community-owned newspapers and magazines close as they were not able to post the surety.
The 1930 Penal Code still provides a broad and vague definition of ‘obscenity’.
Fortunately, courts have held that it was unconstitutional to retain the offence of defamation (Jacqueline Okuta v Attorney General ), and the offence of doing or publishing anything to undermine the authority of a public officer (Robert Alai v The Attorney General ). And sedition, an offence for which many political activists were jailed, was abolished in 1997.
However, risks remain. The recent Prevention of Terrorism Law criminalizes independent investigative work around the security sector. Section 19 penalises disclosing information that may prejudice an investigation even if the journalist does not know there is any on-going investigation, but just if they had ‘reasonable cause to believe it’.
The Official Secrets Act of 1968 provides that official public information is secret unless a government agency has specific authorization to disclose it, and it imposes severe penalties for breach. It is now to ‘apply subject to Article 35 of the Constitution and the law relating to access to information’. But in reality this will make little difference. The law needs rethinking to ensure that it complies with the right to information and the duty to disclose proactively.
The closure of TV stations that broadcast Odinga’s ‘swearing in’ in 2018 revived memories of Moi and Kibaki regime raids on media premises. In 1993 state security agents raided the premises of a printer of magazines that did not enjoy government approval, causing the owners large financial losses. The High Court refused to grant compensation.
In 2006, armed and hooded police officers raided the Standard Group’s offices, yanking away CCTV cameras and carting away 20 computers, then disabled the printing press and burned thousands of copies of the day’s edition. The minister for Internal Security claimed the Standard planned to publish articles instigating ethnic animosity and compromising national security. He relied on Section 88 of KICA – fortunately repealed in 2009 after concerted efforts by media freedom advocates.
Other factors affecting press freedom
Addressing the World Press Freedom Day in 2013, the President promised that the Access to Information law would be passed immediately and that his government was keen on enhancing transparency and accountability. A year later his theme was journalists were ‘not getting their facts right’. The Law was finally passed in 2016, as a private member’s, not government, Bill. The Act is in operation and has been used a good deal. Progress on making regulations has been disappointingly slow, but apparently a draft should soon be published.
Despite earlier oppressive laws, independent media were able to push the limits, while the mainstream media however was cowed and largely became the government's mouthpiece. Now there is no really independent media that serves the public interest as before. Freedom of the media has also been sacrificed for economic interests tied to the survival of media enterprises. Mainstream media reliance on government advertising is an example.
But times are hard for the industry, and government holds them to ransom by failing to pay for advertising (In 2018, the debt was 2.5 billion shillings).
Another factor that limits the range of media available to the Kenyan audience, and the ability of the media to report freely is cross-ownership. Examples of concentration of power include the role of the commercial empire of the Aga Khan who owns several print media and a television station, as well as hotels and is also spiritual head of a significant commercial community in Kenya. The Standard Group is believed to be at least indirectly and partially controlled by former President Moi. It also has two television stations and a newspaper, as well as other interests. Various other politicians have interests in FM radio stations.
The current government is not pro-reform. E.g. the president summoned Standard newspaper editors and managers over an investigative story on the 2013 elections. A watered-down version of the story was then aired after the meeting, and the editors, for the first time in many years, ran an apology on the front page of the newspaper. The same year, the media was put under intense pressure to self-censor, especially during the Westgate terrorist attack and its aftermath.
Article 19, a Human Rights NGO, has highlighted issues on media freedom, and freedom of expression generally. Taking only some recent examples, we should be concerned about the intolerant puritanism displayed by the Kenyan Film and Classification Board, expansion of its supposed role and its attempts to become our moral guardians.
In another instance, GSU police assaulted journalists covering the Miguna Miguna affair. And violence against journalists was common during the 2017 election period. Article 19 notes that in 2017-18 they ‘recorded 94 incidents of violations against individual journalists and media workers, including bloggers, in Kenya’.
In 2018, a Computer and Cybercrimes Act was passed. Article 19 criticised it for provisions that make it a crime to publish ‘false information’, yet the provisions are vague and broad, do not give any defence for publishing in the public interest, and impose heavy penalties. A court suspended some sections of the Act, but in October 2018, the suspension was lifted because the case was not pursued vigorously. This shows how important it is that laws be properly scrutinised before they are passed.