APOLLO MBOYA} public interest
All over the world free reporting is under threat – and not just from heavy-handed governments or criminal violence. More subtly, the law is used. Media outlets and journalists are faced with laws on libel, national security, public order or protection of the State that are invoked to prevent exposure of wrongdoing and to stifle criticism. The effect is to intimidate others and encourage self-censorship.
Article 34(5) of the Constitution of Kenya provides that Parliament shall enact legislation that provides for the establishment of a body which shall be independent of control by government, political interests or commercial interests; reflect the interests of all sections of society; and set media standards and regulate and monitor compliance with those standards.
According to Article 94 of the Constitution, the legislative authority is derived from the people of Kenya and is exercised by Parliament, which is required to protect the Constitution and promote the democratic governance of the Republic.
Parliamentarians and key members of constitutional institutions swear oaths or affirm to respect, uphold, preserve, protect and defend the Constitution. This practice has more than ceremonial significance, and is based on legalistic common sense. It is adopted by most leading democracies in the world. Why must these state officers swear or affirm to protect the Constitution? Because it is the nation’s legal and moral foundation and it sets forth the separation of power and the rights of citizens, among other things.
Therefore, if any members of the National Assembly who have sworn to uphold the Constitution do anything to undermine it, in reality they would be undermining their own legitimacy. On more than one occasion since their elections, some members of the National Assembly have participated in violating the tenets contained in the Constitution.
The most recent occurrence was on October 31, 2013, when they participated in passing the Kenya Information and Communication Bill to, among other things, introduce impunity provisions against press freedom.
The Bill proposes a Communications and Multimedia Appeals Tribunal with the power to, among other things, impose punitive measures for violating the Code of Conduct for journalists, including fines of up to Sh1 million and Sh20 million against journalists and media houses respectively. The fine is to be recoverable as a debt with attendant consequences.
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The National Assembly, in essence, included in the Bill every conceivable media suppression tactic that has ever been dreamed up. Such action constitutes a clear violation of the legislators’ pledge at their swearing-in, to protect the Constitution. If legislators embark on enacting unconstitutional laws, it begs the question whether they have perjured themselves in taking their oath. The justification for freedom of the press is purely instrumental and concerns have been voiced on the future of investigative reporting in the face of the proposed media regulation.
First, the press provides the medium through which freedom of speech is realised. Second, media’s political function in a democratic society because of the capacity to enhance public reasoning by informing about the important issues of the day, and to incentivise political office holders to serve public interest by providing means for the voting public to observe what they get up to. These are good reasons to care about the health of the media and to keep it free from draconian control.
Many of those who defend the freedom of the press argue that media can regulate themselves through competition, on the general model of ‘the market’. Thus the moral character of media houses is irrelevant because competition with other players for readers and viewers will keep them honest and focused on the public interest.
What media companies are competing for, basically, is people’s attention. That attention is cashed out by charging consumers directly and reselling their attention on to advertisers. Any media corporation that deviates from this basic concern will eventually lose out against its competitors. This is why the media is right to object to draconian control, but it should not be conflated with regulation.
If the media are to be precluded from offering their sentiments on a matter, which may involve the most serious and alarming consequences that can invite the consideration of a reasonable person, the freedom of speech could be taken away, and dumb and silent we may be led, like sheep to the slaughter.
Nothing could be more irrational than to grant rights to citizens and then gag information without which the right is abused.
Media consumers will always assert the freedom to consume whatever information or entertainment they want from whatever sources they choose, without restriction of their choices.
The failure to reveal uncomfortable facts and hold the powerful to account affects the political and economic health of our societies, and, indirectly, the wider world.
Freedom of the media is a development tool that the citizens will jealously safeguard and if anybody does not like the news, they are free to go out and make some of their own.
The writer is Secretary/CEO of the Law Society of Kenya