Why access to information and national security are not strange bedfellows

The brazen media shutdown of four national television stations-KTN News, Citizen, NTV and Inooro TV-early this week came as a shocker to many but it was not a surprise to me.

The shutdown, it is believed, was a consequence of the stations’ intention to undertake live coverage of the swearing in of opposition leaders Raila Odinga and Kalonzo Musyoka as the people’s president and Deputy President respectively.

So why was it not a surprise to me? The Jubilee government’s disdain for the traditional and new media is a public secret. In the last five years, independent free media has endured such a sustained barrage of attacks, harassments, intimidations, violations, infractions and outrages. Three examples may suffice.

First, that the shutdown was effected without the government through the security agencies and the communication authority following due processes of law is not a shocker. The three media houses and Kenyans were condemned to an information black out without anyone spelling out to them the offence. The only retort has been the stations are under investigation and will remain shut indefinitely. The executive is thus the complainant, the judge and the executioner. They had committed a crime of conscience-thinking about covering the political event live. That even after the High Court issued a conservatory order, the Jubilee government continued to disobey it flagrantly.

Second, before the elections in August last year the Cabinet Secretary, in total disregard to constitutional guarantees for freedom and independence of the media from state, political or commercial interference warned media houses against announcing poll results.

Third, in the past 25 months, we have recorded 110 cases of threats, expulsion, attacks, harassment, intimidation, arbitrary detention and arrests, and physical attacks on journalists with impunity. Others face frivolous legal suits and attacks on the confidentiality of their sources through illegal surveillance. Most of the attacks have been by public and state officials especially national security agencies. Journalists, especially those who cover politics, protests, corruption and security related issues continue to operate in a harsh environment. Violence against journalists and impunity for these crimes during election periods remain one of the greatest challenges to freedom of expression and right to information. Journalism has been criminalised.

The above three examples exemplify that Kenyan government, like many others, has over the years fallaciously created an impression that national security interests dwarf all other constitutional imperatives. Second, they have made most less discerning citizens believe that national security interests are best served in secrecy. Three, that a select state and public officials are the only sensible people who understand what impressionable citizens must be allowed to see or hear. Thus, to the government honchos, where issues of national security arise, freedom of expression, right to information and by extension freedom of the media, must take cover. If not, they become mere collataral in the ‘bigger’ scheme of things.

The exception

The 2010 constitution does not buy that argument. It adopts a liberal approach to establishing the relationship between right to information and national security. It affirms that national security is not fundamentally at odds with freedom of expression and right to information. Both must co-exist. In fact, it gives prominence to the Bill of Rights. It spells out unambiguosuly that the state has a primary duty of making information readily available to allow for valued judgements from all citizenry.

The only exception, however, is the emergency powers which grant the President powers to derogate respect of a select right but only to the extent that the limitation is strictly required during periods of emergency. But such derogation must be in conformity with international human rights obligations of the state and follow a due process clearly elaborated. It cannot be whimsical. Neither can it be for purposes of ensuring the ruling party vanguishes the opposition.

But do not get me wrong. I am not saying that freedom of expression and its corollary right to information and media freedom are absolute. They can be lawfully restricted. However, for the restrictions that seek to serve national security to be legitimate and lawful, they must meet a three-part test.

First they must be clearly spelt out in law. Two, they must be necessary in a democratic society to serve a clear public interest like public order, public morality public health or protection of the reputation of others. Three, they must be proportionate. That is they must be the least disruptive to the freedom of expression even as they seek to serve national security interests.

Given the shutdown followed an expose by the Kenya Editors Guild Chair, Linus Kaikai claiming that threats had been made earlier to media owners and a select senior editors from the highest levels of government including President Uhuru Kenyatta himself, that if they covered the opposition politicians event live they risked by taken off air or their licences revoked may be embarrasing to the state. But it is not reason enough to deny citizens access to the TV channels with the broadest coverage. In sum, access to information is vital to effective promotion of national security.

At the same time in some critical aspects national security may be enhanced by limiting access to certain vital information which may harm national security or defence if unbridled exercise of right to information is permitted. That information must be clearly circumscribed to only include information that would be prejudicial to the capability, effectiveness or security of the armed forces and territorial integrity of Kenya. As such it only includes information that could be of assistance to those engaged in espionage, sabotage, subversion or terrorism. So did the media share such information to warrant the shutdown? I do not think so.

The media offered, as required by the law and the programme code, fair opportunities and facilities for presentation of diversgent political views. Before shut down, they gave endless coverage to the police officers just as they interrogated what would be expected after the swearing in process.

Thus, national security, freedom of expression, media freedom and right to information are critical for a democratic and peaceful society. National security should not turn into regime security.

-The writer is the Regional Director, ARTICLE 19 Eastern Africa