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President Kibaki Rethinks Stand on Media Law
Kenyan head of state beats hasty retreat as pressure mounts on him
Zachary Ochieng (Zach)     Print Article 
Published 2009-01-09 16:32 (KST)   
Bowing to pressure from the media fraternity, President of Kenya Mwai Kibaki yesterday suspended the operationalisation of a draconian media law he signed last week. Instead, he ordered Attorney General Amos Wako and Information and Communications minister Samuel Poghisio to prepare amendments for the offending sections. Kenya's parliament which has earned the notoriety for being rogue passed the draconian Bill on Dec. 10 to revenge against the media's unrelenting coverage of the scandals associated with it.

The contentious Kenya Communications (Amendment) Act 2008 gives the Internal Security minister powers to raid media houses and confiscate broadcasting equipment. It also usurps the powers of the editors by allowing the Communications Commission of Kenya (CCK) -- the telecoms industry regulator whose employees are government appointees -- powers to regulate broadcast content and prohibit cross media ownership in this day and age of media convergence. Notably, the leading media houses in the country are already in print and broadcast business and if the law is gazetted in its present form, it would push a number of media houses out of business.

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Ironically, the Bill was taken to the floor of the House after its architect, Information and Communications Minister Samuel Poghisio had assured media owners that it would not be tabled in its current form. A few months prior to the tabling of the Bill, media owners, the Kenya Editors' Guild and other stakeholders held a series of meetings with Poghisio and his permanent secretary Bitange Ndemo and were assured that the government was not out to muzzle the media. It was therefore an act of betrayal when the very contentious clauses found their way into the Bill.

Since signing the Bill into law last week, President Kibaki has faced scathing criticism from the media fraternity, religious leaders and the diplomatic community who termed the move ill-advised, coming as it did at a time when the country was just starting to recover from the post-election violence occasioned by Kibaki's controversial win of a second term in office.

The law would take the country back to the dark days of single party dictatorship, when media harassment was at its peak. The Kenya Editors guild termed the President's move to sign the Bill while the Media Council vowed that it would not relent in the fight for press freedom. "This is disappointing. The Media Council will not relent in its fight for press freedom and independence," said Wachira Waruru, the Media Council chairman. Senior Counsel and former legislator Paul Muite urged the media owners to go to court to challenge the president's move.

The Media Owners Association through its chairman Linus Gitahi said the president had taken away the public's right to be informed of important issues, including those the government of the day would not like to be exposed. "By appending his signature on the Kenya Communications Amendment Bill, President Kibaki has now officially gagged the media," Gitahi said. "We are not about to give up this fight because free media is a fundamental human right that should never be compromised for any other partisan interest," Gitahi added.

Following the media owners adamant stand, the president was forced to beat a hasty retreat.

Lawyers, teachers and religious leaders have condemned the president's move and have asked the international community to bar President Kibaki from attending international meetings and force him to respect the freedom of the media. The Kenya National Union of Teachers (KNUT) Nandi North secretary Josephat Serem said Kibaki should look beyond the days when he shall be out of power, noting that the media had highlighted his struggle against the single party regime of former President Daniel Moi.

"He should not go down in history as the person who helped kill press freedom during his rule," Serem warned. Apparently, the president heeded the warning.

Besides authorizing the minister to seize broadcasting equipment, the Act also restricts the use of electronic gadgets for individual and business purposes. It also gives the postal staff authority to open letters, with the authors or recipients of offensive or obscene ones being subjected to a prison term of two years or a fine of $1,333. The law also bans reprogramming of mobile phones or changing the facial appearance of handsets to the owners' convenience.

The law also authorizes government officials to access contents of private emails and prohibits the sharing of computer passwords, access codes or any other means of gaining access to any programme or data. It also bans the broadcast of derogatory remarks based on ethnicity, race, creed, colour and sex.

By assenting to the Bill, President Kibaki exposed the divisions within the grand coalition government given that the Prime Minister Raila Odinga repeatedly assured media owners that the president would not assent to the Bill. Lands minister James Orengo, a member of Odinga's Orange Democratic Movement (ODM) said Kibaki's move was a stab in Raila's back and vowed that the ODM would sponsor a motion in parliament to have the offending sections of the Act repealed. Had he not changed his mind, the president was set to leave behind a bad legacy given that he is serving his last term. It is not lost on observers that as the country's Vice president in 1982, he seconded a motion that created the infamous Section 2 (a) of the constitution that made Kenya a dejure one-party state.

The Communications Bill, passed by only 25 MPs out of 222 was an irony of sorts. First, it contradicts the Constitution of Kenya, which provides for the freedom of press. According to the Law Society of Kenya (LSK), besides contravening the Kenyan laws, the Bill also runs contrary to international conventions on the freedom of the press and other freedoms to which Kenya is a signatory.

Still, gazetting the media law would reverse any gains the Kenyan media has made so far in its quest for press freedom and as the country marks 45 years of independence. As it is, cases of media harassment by the Kibaki administration abound. On the eve of the World Press Freedom Day in 2005, Kibaki's wife Lucy staged a dawn raid on the offices of the Nation Media Group to protest an alleged bad publicity it was giving the first family. Accompanied by a retinue of bodyguards, she held journalists hostage for four hours, slapped a Kenya Television (KTN) cameraman Clifford Otieno and destroyed his camera. Otieno has since fled the country fearing for his life.

But that was not all. In March 2006, the then Internal Security minister John Michuki ordered a police raid on the Standard Group of companies, resulting into a loss of millions of shillings. In an unprecedented draconian assault on the media, about 30 heavily armed and hooded police from the elite Kanga squad, ostensibly formed to fight armed and dangerous criminals, descended on the Standard Group's offices at midnight, beating up employees, breaking doors, stealing employees' mobile phones, yanking off CCTV cameras and carting away 20 computers. They later disabled KTN TV, keeping the channel off air for about 13 hours. The commando squad later proceeded to the Standard printing press, shot the gates open, disabled the plant and set on fire thousands of copies of the day's edition that were just rolling off the press.

The Standard raid mirrored a similar scenario in the early 1990s at the height of the clamour for multi-partism, when security agents raided printing presses of publications deemed to be anti-establishment. A number of journalists were detained on trumped up charges and various publications proscribed. In 1992, CID officers hid at the entrance of Society magazine offices and pounced on journalists as they reported to work. Earlier, Society offices had been petrol-bombed by balaclava-wearing goons after another group had invaded the magazine's printers and disabled the printing press.

In August 2007, a spirited campaign by journalists and the civil society forced the government to beat a hasty retreat after sneaking in a contentious clause in the Media Bill 2007. The clause would compel journalists to reveal their sources. The amendment was sneaked in Clause 38 (4) which stated: "When a story includes unnamed parties who are not disclosed and the same becomes the subject of a legal tussle as to who is meant, then the editor shall be obligated to disclose the identity of the party or parties referred to."

The media also rejected the Bill in its original form as it sought among others, the introduction of licensing of journalists as well as power to deregister journalists whose work is seen as unflattering to the powers-that-be. The government also wanted to nominate its own people to sit on the Media Council but the media insisted on self-regulation.

Not surprisingly, total press freedom in Kenya remains a pipe dream. Notably, the notorious subjudice law still hangs over the heads of journalists. The principle of this law is to create caveats to demarcate what the media can comment on with the objective of ensuring that press reports do not influence a court ruling. But in principle, the practice has only served to gag the press.

The government has also over the years used the judiciary to muzzle the press, with courts awarding hefty damages against the media. However, it was in 2001 and 2002 that the highest awards were registered. Over these two years, the Kenyan courts awarded a total $1,375,000 in libel to four litigants. The People Daily was ordered to pay former cabinet minister Nicholas Biwott $250,000 for a 1999 story on the Turkwell Hydro-Electric Power project, which his lawyers argued depicted him as a corrupt man.

In December 2000, Biwott was awarded $375,000 against British authors Dr Ian West and Chester Stern for implicating him in the murder of former Foreign Affairs minister Robert Ouko. The alleged libel was contained in a book titled Dr Ian West's case book. A leading book store in Nairobi -- Bookpoint -- was ordered to pay $125,000 for selling the book. In total, Biwott was awarded $750,000, the highest made to any Kenyan so far. But the hefty awards have not gone down well with those who are champions of press freedom.

©2009 OhmyNews
Other articles by reporter Zachary Ochieng

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