FOIAnet - Freedom of Information and Press Freedom in Kenya

An article by the Kenya Union of Journalists to commemorate the International Rights to Know Day as declared by the International Freedom of Information Advocates network (FOIA Net)

The electoral victory of the National Alliance Rainbow Coalition (NARC) in December 2002 heightened public expectations in Kenya. NARC won the elections on a platform of change in all sectors of governance. The public, therefore, expected the new government to introduce a new work ethic, respect for the rule of law, enforcement of fundamental rights and freedoms and generally manage the country differently.

However, these expectations ignored crucial lessons from Kenya’s post-colonial experience and experiences from other parts of Africa. This experience is that unless a government is kept on its toes by a vibrant opposition, the civil society groups and other non-governmental institutions, it degenerates to authoritarianism. Sadly, the events of the last twenty months indicate this to be the garden path that the present government is faithfully following.

Apologists of the current dispensation cite the expanded democratic space and the vibrant media as showcases of the changed environment under the current administration. Whether this vibrancy is due to this administration or not is a matter of perception. What is certain, however, is that during the first decade of plural democracy, that is 1992-2002, the media made giant strides despite on-off attempts to stem its growth.

The democratisation process was accompanied by multiplicity of media houses. In addition to the State owned KBC TV and radio, five other TV stations and tens of radio stations were established. The daily press also increased from three in 1992 to four after the People Daily was established in 1994.

In terms of content, these media houses are more courageous and vibrant compared to the timid, conformist media of the early 1990s. The country also saw the emergence of a new genre of media, the alternative press, whose content and quality challenges our ethical practices. In twist of irony, no new media house has so far been registered by the new regime.

Moreover, the democratisation process also produced other actors within the polity to safeguard democracy, rule of law, human rights and governance. But since the advent of the Kibaki government, the media stands out for two reasons.

Firstly, the foundation of the media, the freedom of expression, is the lifeblood of a democratic society. This is because free flow of information and ideas informs public discourse and public policy formulation. The media is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. Thus, given the prominent role the media played in the 2002 elections, the media has sought to exert itself more than ever before.

Secondly, the media acts as a brake on the abuse of power by public officials. Through its watchdog roles, the media facilitates the exposure of errors in governance and administration of justice in the country. This makes the media a powerful tool in the development process. Indeed, the media carries the mantle for nipping in the bud the Anglo-leasing finance scandal and other corrupt practices more than any other sector.

In the current regime, therefore, the media has shouldered heavy responsibility. Several reasons account for this. Firstly, though the coalition won with a comfortable majority, which should have enabled it conducts its legislative business, internal squabbling has dogged the coalition. This squabbling has undermined the performance of the government. Thus, the media has been playing the dual role of highlighting the debilitating NARC wars as well as refocusing the coalition to the important responsibilities of governance.

Secondly, the once vibrant civil society and the religious sectors, which often acted as the intellectual wings of the opposition in 1990s, have been co-opted into the Kibaki administration. This has severely eroded the voices of these two sectors as defenders of human rights and democracy in the country. As a matter of fact, there are many blunders by this regime that have passed without comments from the civil society, something that was unthinkable in the late 1990s.

And thirdly, the internal logic of the current constitutional order is such that the role of political opposition is severely restricted. This problem is compounded by Kenya’s ethnic complexities and the opportunistic nature of our politicians. Two months ago, these two converged when a section of the opposition was co-opted into the government thus weakening the opposition. Needless to add that the part of the opposition that has not yet been co-opted is still struggling to undergo internal democratisation process with a view to repackage itself as viable alternative.

These shifts in balance of power have elevated the role of the media as a defender of democracy, human rights and nationalism in the new political dispensation. But for the media to effectively play this role it has to surmount several challenges.

Firstly, none of the media laws has been reviewed or repealed. Yet, our media laws, a carryover from the colonial and one-party state, militate against the freedom of the press and democracy. Leading on the list is the Official Secrets Act Cap 187 that denies media practitioners official information. As a matter of fact, and contrary to practice in a democracy, this Act declares all official information state secret, and requires journalists to show why they should have access to this information.

Then there is the Books & Newspapers Act Cap 111, which complicates the registration and operations of newspapers and magazines; and the State Broadcasting Act Cap 221, which gives Kenya Broadcasting Corporation advantages over private stations and denies its journalists the right to an association of their choice.

On top of this, we have the Criminal Libel and Defamation laws under Penal Code Cap 63, which deals with defamation; and Contempt of Court Laws as well laws of sub judice, makes court reporting very difficult; and the Miscellaneous Amendment law 2002, which incorporates newspaper vendors in publishing crimes.

Like its predecessor, the Kibaki government has severally attempted to use this oppressive legal regime to muzzle the media. Late last year, the police arrested the chief executive and editorial team of the Sunday Standard over a story the paper had carried implicating a NAK MP with the murder of a University don.

At the beginning of this year, the police harassed publishers of the alternative press over domestic war stories of the first family, and hundreds of newspaper vendors for selling alternative press publications. Several months later, the Minister for Water Resources sued all the daily newspapers and several radio stations over her love affair with a catholic priest stories that they carried.

The Minister further influenced the Minister for Information to appoint a committee to probe a specific media house, KISS 100 FM. The court ruled the probe illegal and ascertained the rights of the media house. The government further failed to take legal action against a pro-government media house when it sabotaged transmission signals of its rival for several days.

Paradoxically, rather than repeal the current legal regime and replace it with Freedom of Information Act that guarantees press freedom, the government is intent on adding oppressive legislation. The government had prepared a broadcasting bill whose highlights included outlawing cross-media ownership. Even though the minister for information and communication dropped the proposed following pressure from key players including the KUJ, we are privy to information that the draft aims at legislating the media in the guise of regulation. All these contradict the edict that the media is vibrant courtesy of the current government.

The second challenge relates to the proprietor interests and working conditions of journalists. Because proprietors primarily aim for profits, they often conform to the wishes of the government of the day. Closely related to these interests are editorial policies, which in many ways influence media reports. This is evident today in cases where media houses have openly taken sides in the NARC wars.

The working conditions, on the other hand, have condemned our journalists to deplorable levels. In Kenya, over 75% of the news that is covered correspondents, a group of journalists that poorly remunerated, not allowed to join any Union or welfare associations and they are not permanent employees. In all fairness, such conditions militate against freedom of the press.

Lastly, the media has to confront the challenge of ethical practices that have come along with the emergence of FM radio stations and the alternative press. This genre of our media has been gathering, processing and disseminating information without regard to the journalists’ ethical code. To address this issue, the KUJ signed a memo of commitment with some publishers of the alternative media. This memo committed them to the code.

In addition, the media industry has established a media council. This council is mandated to receive complaints against media houses by aggrieved parties as well as whip these houses to observe ethics. But the main challenge is still that of replacing the current legal order, which is highly repressive, with a new order that promotes freedom of information.