In Kenya, a flawed U.S. comparison to bolster a faulty law

Kenyan President Mwai Kibaki says he will reconsider the deeply flawed communications legislation that he signed into law at the beginning of the year. Kibaki said he would direct the Information Ministry and attorney general to consider the concerns of Kenya’s media and present them to the cabinet for possible legislative revision. CPJ and other press freedom advocates have pointed out that the Communications Amendment Act significantly curtails press freedom.

It would be good to see the president and parliament follow through by repealing repressive sections of the law that allow the government to raid media houses on vague security grounds and to effectively control broadcast content and scheduling.

But the work of a Kibaki spokesman raises skepticism. Alfred Mutua directed an expensive public relations campaign–some news accounts put the cost at US$100,000 or more–to prop up public support of the Communications Amendment Act. As part of the campaign, the government hired people to hand out leaflets on the streets to explain the government’s unpopular legislation.

It’s questionable to spend public money to encourage support for legislation that has already been enacted, but one of Mutua’s main arguments is even more debatable. The publicity campaign claimed the act was similar to legislation found in other democratic countries, notably U.S. laws and regulations enforced by the Federal Communications Commission (FCC).

The comparison is far-fetched. The FCC blocks obscene language and sets a time frame for children’s programming. The FCC cannot, however, set the “manner, time and type of programs” of broadcasts as legislated by Kenya’s new Communications Amendment Act. Nor can U.S. regulators raid a media house and confiscate equipment on unspecified, warrantless “security concerns”–authority that is granted in the current Kenyan law. According to the National Association of Broadcasters, the Emergency Alert System does allow the U.S. president to air a two-minute message nationwide–but this has never been used, not even during 9/11.

The Kenyan act also gives the minister of information the power to appoint all members of a new media regulatory body that supplants an existing, independent one. Mutua was quick to defend the clause by saying that the five commissioners of the FCC are appointed by the U.S. president. Mutua fails to mention the large consortium of private agencies that participate within the FCC and play an integral role in the commission’s decision-making process.

Mutua’s point of comparison, however, is telling. Many countries do look to the United States as a model of press freedom. Given President-elect Barack Obama’s Kenyan roots, America’s press freedom standards are more important in Kenya than ever.

This week, CPJ wrote a letter urging Obama to reaffirm U.S. leadership on press freedom issues. From residents of Kogelo, the village where Obama’s relatives reside, to the capital, Nairobi, it is evident Kenyans will be watching the new president very closely. Obama, as CPJ noted, can set the global standard by reaffirming “Washington’s resolute defense of media freedom.”

Nairobi can reassert its own press freedom credentials by re-examining this poorly considered piece of legislation.