By DAVID OHITO
Three media houses — Nation Media Group, the Royal Media Services and the Standard Group have jointly challenged newly enacted laws impacting operations of the industry.
A separate petition challenging the constitutionality of the two Acts- the Kenya Information and Communication (Amendment) Act 2013 (KICA) and the Media Council of Kenya Act 2013 has been filed by journalists through Kenya Editors’ Guild, Kenya Union of Journalists and the Kenya Correspondents Association.
The lawyers for the media fraternity argue that the two laws were enacted in violation of the Constitution, curtail fundamental rights and freedoms and should be declared by court invalid, null and void.
The case brings to fore critical arguments shedding light on where Kenya has come from in terms of freedom of expression since independence to an audit of the legislative processes of Kenya’s two chamber Parliament - the National Assembly and the Senate.
The pleadings also question the action of President Uhuru Kenyatta and in particular when he declined to assent to Kica Bill and returned the same to the National Assembly complete with freshly drafted clauses which the House rubber-stamped into law. Petitioners say the Constitution does not vest any legislative power on the president under article 115 of the Constitution. While the President assented to the Media Council Bill, which is now the Media Council Act, he refused to assent to the Kenya Information and Communications (Amendment) Bill 2013 as passed by the National Assembly.
Lawyers led by senior counsel Paul Muite, Philp Murgor and Issa Mansour are representing the media houses while senior counsel James Orengo and Celestine Anyango Opiyo represent journalists.
Orengo in the petition says KICA has become part of the law of unconstitutionally in contravention of Articles 93, 94(1) and (2), 109, 110, 115 and 116 of the Constitution and the President arbitrarily turned the institution of the presidency into an unconstitutional or extra-constitutional lawmaking body as opposed to the defined, restricted and limited role the President plays in assent to or referral of Bills.
Petitioners argue that under the old Constitution and the legal regime prior to the promulgation of the Constitution of Kenya on August 27, 2010, journalists were the target of detentions without trial, malicious prosecutions on tramped up charges and false imprisonment, general harassment and intimidation by the state security. Some were forced into exile.
The pleadings list some journalists who suffered persecution, prosecution, detentions without trial and exile under the previous authoritarian and undemocratic dispensation are numerous and include, David Makali, Pius Nyamora, Gitobu Imanyara, Bedan Mbugua, Njehu Gatabaki, Salim Lone, Chelagat Mutai, Tony Gachoka, Magayu Magayu, Otieno Makonyango, Simbi Kusimba and Mburu Mucoki.
Some of the victims like Pius Nyamora still live in exile outside Kenya. The court documents narrate how some of the media houses have had their premises raided and equipment seized or vandalized. Examples of such attacks and raids include the Royal Media Services and KTN/Standard. “One of the objectives of the Constitution was to address invasion by the State against the freedom of expression and media freedom,” argues Orengo.
“In the past because the old Constitution allowed almost unrestricted derogation of the fundamental rights and freedoms of the individual, the Constitution of Kenya 2010 has created circumstances which make it difficult to limit fundamental rights and freedoms,” the affidavit by journalists says. Muite and Murgor are asking for constitutional interpretation by the court on whether the president has power to legislate in giving recommendations for the amendment of Bills when he has declined to assent to a Bill and referred it back to Parliament for consideration.
The lawyers and petitioners are asking whether recommendations given by the President violated Article 94 (1) of the Constitution which vests the exercise of legislative authority of Kenya in Parliament. Article 94 (5) of the Constitution spells out that no person or body other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by the Constitution.
The media fraternity also question whether the Media Council Act, 2013 and the Kenya Information and Communication (Amendment) Act 2013 were passed in accordance with the Constitution.