Three-judge bench to hear case seeking nullification of repressive media laws

Chief Justice Willy Mutunga constituted a three-judge bench to hear the petitions.

By DAVID OHITO

NAIROBI, KENYA: The stage is set for hearing of the case challenging the two ‘draconian’ media laws which will largely decide how the Press is governed and operated in Kenya.

Kenyans are eagerly awaiting the outcome of this petition, which will decide the fate of freedom of expression in the country as well as the right to receive and seek information and the independence of the media.

The vital role of the media in the circulation of information and ideas in a democratic society cannot be over emphasised. Only through a vibrant and free media can the leaders be held to account as the Press performs its watchdog role.

Chief Justice Willy Mutunga constituted a three-judge bench to hear the petitions filed by  Standard Group, Nation Media Group and Royal Media Services. The Kenya Editors’ Guild, the Kenya Union of Journalists and the Kenya Correspondents Association have also been enjoined in the suit.

Judges Isaac Lenaola, Weldon Korir and Lady Justice Mumbi Ngugi will hear the petition set to begin this week.

The petitions are challenging the constitutionality of two Acts – the Kenya Information and Communication (Amendment) Act 2013 (KICA) and the Media Council of Kenya Act 2013.

The lawyers representing the media houses argue that the two laws curtail fundamental rights and freedoms and should be declared null and void.

Limited Role

Senior Counsel Paul Muite, Philip Murgor and Issa Mansour are representing the media houses while Senior Counsel James Orengo and Ms Celestine Anyango Opiyo are appearing for journalists.

The case highlights the gains made over the years in the push for enhancement of media freedom of expression and also makes an audit of the legislative processes of Kenya’s two chamber Parliament – the National Assembly and the Senate.

The media houses argue that KICA became part of the Laws of Kenya unconstitutionally as it was enacted in total disregard to Articles 93, 94(1) and (2), 109, 110, 115 and 116 of the Constitution. They further contend that the President turned the institution of the presidency into an unconstitutional or extra-constitutional lawmaking body while signing the Act into law as opposed to the defined and limited role the President plays in assent to or referral of bills.

The submissions also recount how media houses and journalists have in the past been targeted by the State for persecution.

 “Journalists who have suffered persecution, prosecution, detention 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  and Clifford Otieno still live in exile.

Equipment Vandalised

The lawyers have laid ground for the case by stating how media houses have been attacked by State agents during raids on premises and equipment seized or vandalised. Examples of such attacks include raids targeted at the Royal Media Services and KTN/Standard.

“One of the objectives of the New Constitution of Kenya, which was promulgated on August 27, 2010, was to address the invasion by the State of freedom of expression and media freedom,” argues Orengo.

Muite and Murgor are asking for a constitutional interpretation on whether the President has powers 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.

The lawyers and petitioners are asking whether the 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 questions whether the Media Council Act, 2013 and the Kenya Information and Communication (Amendment) Act 2013 were passed in accordance with the Constitution.

The court has been asked to determine whether the Communication Authority of Kenya established under KICA is the independent entity contemplated by Article 34 (3) and (5) of the Constitution.