2. Media contend with lawsuits, restrictive bills, legal limbo
Instead of passing new legislation in keeping with the new constitution’s guarantees for freedom of the press, the government has introduced a series of laws that undermine self-regulation and allow for harsh fines and even jail terms for journalists who commit perceived transgressions.
“We have a hostile ministry, a hostile regulator, a hostile presidency and a hostile national assembly that seeks to block the media through separate pieces of legislation,” said the Standard Group’s Ohito.
Several of the laws have stalled or been tied up in court since being challenged by the Kenya Editors Guild, the Kenya Union of Journalists, and the Kenya Correspondents Association. Nonetheless, CPJ found that the mere threat of punitive action and the uncertainty surrounding the laws’ implementation is enough to make journalists pause before airing or publishing sensitive stories.
The most troubling legislation is a pair of laws that sailed through Parliament in just half an hour in December 2013, despite widespread protests. Press freedom groups criticized the Media Council Act for imposing a statutory code of conduct; journalists could be removed from the register and lose the right to work for not following such vague prescriptions as “sticking to the issues.” Journalists are also, for example, not allowed to “encourage or glorify social evils, warlike activities, ethnic, racial or religious hostilities.”
“The code of ethics is our [the Media Council of Kenya’s] problem. It shouldn’t be part of the law,” said Victor Bwire, the council’s deputy chief executive.
The same groups opposed the Kenya Information and Communications (Amendment) Act, 2013 (known as KICA) because it undermined the process of self-regulation by creating a government-appointed Communications and Multimedia Appeals Tribunal answerable to the state-controlled regulator, the Communications Authority of Kenya. Under the act, the tribunal could impose hefty fines on individual journalists (500,000 Kenyan shillings or US$5,500) and media companies (20 million shillings or US$230,000) for breaching the code of conduct.
Members of the Media Council of Kenya are chosen by a selection panel nominated through an “industry driven ... and participatory process,” provided for in the law, while the cabinet secretary has the power to select members of the Communications Authority and thus exert direct government influence over the appeals tribunal.
Thanks to the challenge by journalists’ groups, the high court suspended the laws in February 2014, according to news reports. They remain tied up in court 15 months later.
In the meantime, more than a dozen other laws on the books are at odds with the constitutional guarantee of media freedom, according to the Media Council’s Bwire. Citing the Kenya Defence Forces Act, the Police Act, and the Official Secrets Act, all of which conflict with the new constitution, he said such laws should be consolidated, abolished, or improved upon. For instance, the Official Secrets Act, prohibits the possession or dissemination of official information despite Article 35 of the constitution allowing public access to information, Bwire said.
Criminal defamation also remains on Kenya’s statutes, despite a call by the African Commission on Human and People’s Rights’ special rapporteur on freedom of expression and access to information and by the Pan-African Parliament’s 2013 Midrand Declaration in support of the Table Mountain Declaration, which calls for libel and insult laws to be abolished.
The executive branch under Uhuru Kenyatta has been particularly litigious. Before his election, Kenyatta, who is listed by Forbes magazine as among Africa’s 40 richest, had filed more lawsuits against the press than any other public figure, veteran media defense lawyer Paul Muite told CPJ. An executive at one prominent news outlet told CPJ that legal challenges became so taxing that the outlet curtailed critical stories about the president. “No-go zones include personal criticism of Uhuru Kenyatta and land issues,” the executive said.
The private daily Star has faced more than 100 lawsuits since the daily was launched in July 2007, legal officer Linda Musita told CPJ. “Ultimately we are caught between avoiding costly lawsuits that eat into the Star’sprofits and telling Kenyans the truth,” Musita said. “Lawsuits affect the ability to report freely.”
Accusations of insult and defamation can reach beyond large news outlets to social media users. In January 2015, police arrested former Mt. Kenya University student Nancy Mbindalah for five Facebook entries that criticized Embu County Governor Martin Wambora, according to news reports. Questioning the lack of water in a local hospital and the governor’s county-tendering process was viewed as a criminal offense and Mbindalah was jailed for nearly four days before being released on 30,000 Kenyan Shillings (US$313) bail. She was eventually pardoned by the governor, reports said.
A law passed in 2012, the National Intelligence Surveillance Act, makes it illegal for journalists to handle classified information and allows for fines of up to five million Kenyan shillings (US$51,000) and five years in prison. The law gives the Intelligence Service wide latitude to determine what can be considered classified, said Standard journalist Juma Kwayera.
At the end of 2014 came another troubling piece of legislation: an amendment to the Security Laws Bill, which would impose a fine of five million Kenyan Shillings (US$50,540) or three years in jail, or both, for journalists whose stories are “deemed to undermine terror investigations, [and] a similar fine for media which publish pictures of terror victims without the permission of the police,” according to news reports. Parliament passed the legislation in December, but in February Kenya’s constitutional court threw out sections of the bill, including clauses that restricted the media from publishing material “likely to cause fear or alarm,” news reports said.
The raft of restrictive legislation appears to be a defensive reaction to critical local and foreign coverage of Kenya’s security operations, particularly in response to large terrorist attacks. The press has routinely characterized government counter-terrorism operations as slow and mismanaged or otherwise botched—from the September 2013 attack on the popular Nairobi shopping center Westgate to the April 2015 attack on students at northeastern Garissa University, both of which resulted in scores of civilian deaths and both of which were carried out by Al-Shabaab militants.
Another bill, the draft Parliamentary Powers and Privileges Bill 2014, has not yet come before lawmakers, but the draft law would restrict the media’s access to covering the legislature, according to the Kenya Union of Journalists. The media would be “at the mercy of the Speaker or the chairpersons of committees to access information or transmit proceedings in the august House or the committees,” the KUJ said in a statement.
“Denying the public access to information and oversight of the parliament is an affront to this country’s hard-earned democracy,” the chair of the Kenya Correspondents Association, William Oloo Janak, said.
The 2014 Public Audit Bill is also still under discussion, and despite a constitutional commitment to transparency, contains a provision that would prohibit access to audits that might “unduly jeopardize state security.” Spending on military, intelligence, and police services would not be open to public scrutiny, according to news reports, and security expenditure would only be shared with the president and a select parliamentary committee, which would effectively preclude outside review of potential misuse of funds, the Standard’s Kwayera said. “Stories concerning misappropriated spending on substandard jet fighters, armoured personnel carriers and military boots for the Kenya forces fighting in Somalia will not reach the light of day,” Kwayera told CPJ, referring to recent news stories.
The bill is troubling to Sheila Masinde, research and learning manager with Transparency International, because the auditor-general’s reports are the best way to track expenditure, she said. “Sometimes one may officially request information from a public authority but get a flat-out refusal,” she said.
“The media is key for us in highlighting and exposing the devastating effects of corruption and giving citizens information to fight it,” Masinde said.
For example, some media outlets questioned the cryptic bidding process that resulted in the awarding of a tender to build a standard-gauge railway from Mombasa to Nairobi—the biggest investment in Kenya’s history, according to Foreign Policy—to a Chinese company, China Road and Bridge Corporation, after the World Bank had blacklisted the company from projects it finances for eight years for participating in graft. Yet the local press remained largely silent after the government contracted with the same company to start building another major project, the Lamu port and oil refinery, estimated to cost US$23 billion.
“Kenya seems to have a large corpus of good, discerning journalists but unfortunately they are sometimes part of the cover up—through co-option, self-censorship or fear, especially in relation to big stories with big actors involved,” said Makokha, who now works as a media consultant.
Increasing, bloggers are taking the lead in publishing information on corruption, and need greater protections, Masinde said.
Press freedom advocates aren’t the only ones alarmed by the legislation that would restrict transparency: Kenya’s auditor general, Edward Ouko, has criticized sections of the Public Audi bill, saying it is a threat to the “functional independence” of his office and contradictory to “international auditing best practices,” according to news reports.
In the meantime, the disputed Media Council Act and KICA have undermined the country’s media regulator, according to Janak. “The Media Council is grinding to a halt; it cannot operate at optimal capacity,” he told CPJ, adding that the legal uncertainty has stalled the nomination of new members to the council.
As long as the future of this tangle of legislation is unclear, news outlets may be wary of pushing the boundaries. One example came in July 2014, when television channels chose not to cover a rally of around 10,000 people led by the opposition Coalition for Reforms and Democracy (CORD) calling for a national dialogue on security and ethnic tensions, according to news reports. The demonstration in Nairobi was the culmination of a series of events in which CORD criticized the Jubilee coalition government’s poor record on security and the high cost of living, according to news reports.
Given the media’s intensive coverage of CORD’s previous rallies, “Kenyans were expecting to watch the CORD rally live on television,” said a report by the Institute for War & Peace Reporting and Capital FM. The report pointed out that CORD’s leader, former Prime Minister Raila Odinga, had addressed in May a similar rally in the same venue, which was aired “live on five channels, including the government broadcaster.”
However, the day before the Nairobi event, the Communications Authority of Kenya issued a statement reminding broadcasters that constitutional guarantees of freedom of expression do not extend to “hate speech, propaganda for war, incitement to violence, advocacy of hatred that … constitutes ethnic incitement,” news reports said. Editors of Kenya’s four major TV channels met and agreed not to broadcast the rally due to “fears that politicians might make inflammatory comments or incite supporters to violence,” according to the report by Institute for War and Peace Reporting and Capital FM.
The compliance of media houses disillusioned many Kenyans, Janak said. It was “a wrong decision” and amounted to self-censorship, a senior editor at Kenya's Nation Media Group, Macharia Gaitho, told the Institute for War & Peace Reporting. "It is the right of editors to make decisions, but they also have to check the news value of something. In this case, I don't think anything else could have been more newsworthy than that rally," Gaitho said.
Concerns over media independence in Kenya have seeped into regulatory processes that usually would be considered issues of business or technology. The lead-up to Kenya’s migration from analogue to digital television broadcasting, scheduled for June 2015 but not completed, has been particularly fraught following a regulatory decision to award two signal distribution licences to the Chinese-owned Pan Africa Network Group (PANG) and to Signet, a subsidiary of Kenya’s state broadcaster, according to news reports. In a series of legal battles, including a case before the Supreme Court, the country’s three leading television owners, the Standard Group, Nation Media Group, and Royal Media, fought to gain a signal distribution license. The three argued that the award of licences to the Chinese and state companies carried the risk that the private broadcasters’ content would be controlled by companies loyal to the government, endangering the free flow of information. In September 2014, the Supreme Court ruled in their favour, cancelling PANG’s licence; ordered the then-regulator, Communications Commission of Kenya, to be reconstituted as the Communications Authority of Kenya; and directing the Communications Authority to reopen discussions with the three media houses on digital migration and additional signal distribution licensing, according to legal commentator Wachira Maina.
Maina, a constitutional lawyer, expressed his concern that although the Supreme Court ruled in favor of the private broadcasters, its judgment showed a “shallow” understanding of media freedom and the need to ensure a truly independent regulatory authority. “Kenya does not have a history where a body not independent of government ever applied fair procedures,” wrote Maina. “Kenyans know from bitter experience that a mere declaration that procedures are fair guarantees nothing about a fair decision if the judicial officer is a lackey of the powers that be.”