As concerns the media black out, let me attempt to look at it from both sides of the coin. The question to both the government and the media is; how far is too far? Looking at the media black out as nothing but curtailment of freedom of expression is a simplistic interpretation of a multi dimensional problem. If one applies a more interrogative lens, three things will be observed. The first is that the swearing in combined two ‘crimes’ in one. Raila’s oathing ceremony could be regarded as the official beginning of a coup d’êtat to be executed in installments over the next few months. According to the Penal Code, on January 30th, Raila ‘devised and now intends the deposing by unlawful means of the President from his position as President.’
Additionally, there were reports the National Resistance Movement, intended on the same day to overthrow the Government by unlawful means. This was announced to us by the Cabinet Secretary for Interior. If that is the case, Raila’s actions and intentions not contravene the Constitution.
While I am on this point, let me explain the gravity of the offence. Treason is a capital offence. This is because the crime of treason attempts to return a nation to what Thomas Hobbes called the State of Nature, which is synonymous with the ‘state of war’. Life in a state of war as Hobbes described it, is ‘solitary, poor, nasty, brutish and short.’ If you still do not understand the consequences of coup d’êtat’s gone awry, you need only look at countries like Somalia, Syria and Libya. Hobbes additionally tells us that ‘the state of nature is worse than tyranny of the sovereign’. This is because the state of nature is tyranny of all against each other. It is pervasive, it is disorderly, it is inescapable. With this in mind, the casualness with which Kenyan politicians have been allowed to entertain these thoughts is alarming.
The second ‘crime’ of January 30th, is that of ‘dissemination.’ Broadcasting the event is contravention of article 33 and 34 of the Constitution, the consequences of which are stirring up feelings of enmity and hostility between Kenyans and thus 'inciting people to violence’. Last week, I was wrong in comparing this ‘media crime’ to witnessing a theft; it is actually more complex than that. It is the broadcasting itself that is the issue. The issue is what the result of the dissemination of an illegal ‘presidential oathing’ would be. In other words, if social unrest or any form of instability would ensue thereafter, some culpability would fall squarely on the broadcasters.
The second thing we observe is the ‘paradox’ of the January 30th swearing in ceremony. While swearing to uphold the Constitution, Raila was at the same time breaching the same Constitution. He was testing the limits of constitutional order, setting a dangerous precedent.
The third thing one observes is that over the last 15 years, the media’s freedom of expression has been both bountiful and unfettered. Government, even at the highest level has not been spared from reports of all manner of transgressions, from corruption to assassination schemes to personal scandal. None of these have resulted in a black-out because these freedoms indeed should be guaranteed to the media, as a watchdog of the governing class.
But are there limits of freedom of the media? In my view, when it comes to protecting the integrity of the nation, broadcasters should not be all too quick to midwife an affront to Statehood itself.
The Head of State therefore as the custodian of the will of all, in the national interest had no option but to make an executive decision to protect the Constitution. Censuring has happened all over the world when it is in the interest of the people. While freedom of speech of the media is absolutely essential, media responsibility is imperative. But the reversal of this argument is also true. The government is doing itself a disservice by blacking out the TV stations. By doing this, it is caging the truth, it is arresting it instead of letting the truth ran its course, particularly in this era of fake news. In this way, the state is being extremely paternalistic. And no one enjoys being over-fathered.
The writer is a PhD candidate in Political Economy at SMC University and a research fellow at Fort Hall School of Government. [email protected]