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Protection of ‘sources’ law must be stringent to guard media freedom

By Henry Maina | January 15th 2018
DP William Ruto. [Photo: Courtesy]

Last week, David Mugonyi, the spokesman of Deputy President William Ruto, was caught on an audio recording, threatening Justus Wanga, a Nation Media Group journalist. The threats have been condemned by journalists, editors and human rights defenders.

This is the fifth case of an attack on a journalist this year. The other attacks and violence against media workers were against Peter Warutumo and Sammy Lutta both of Nation Media Group; Hesborn Etyanga of Star Newspapers and Phillip Ekadeli of Radio Maisha.

The attack comes on the back of 45 and 48 cases of threats, harassments, physical attacks against journalists in 2016 and 2017 respectively. The fear is at the current rate, 2018 may turn out to be the worst year for journalists in Kenya.

Confidentiality of sources

To some, the threats may be considered as professional hazards. Others point out that the attack on Wanga was warranted since the journalist had misrepresented facts and did not identify any credible sources. They add that the story should have been duly labeled as a commentary and not a news story. 

They add that it is the journalists’ responsibility to ascertain the veracity and reliability of their sources and that confidentiality should not be used indiscriminately.

But this threat to a journalist is more than that. It is a pointer to many bad things that are likely to happen against the media and five of them are worth highlighting.

First, it shows the increasing bravado by State and public officers to denigrate and run a deligitimising campaign against the media.

Second, the threat is a criminal offence that seems not to have attracted the wrath of the criminal justice system. It is a marker of impunity that reigns around crimes against journalists. It smacks in the face of the commitment made by the Office of Director of Public Prosecutions that a deliberate team of prosecutors will be appointed to ensure those who have continued to violate media freedom are held to account.

Third, the threat brazenly ran roughshod over a known journalistic value of protection and confidentiality of sources. Source protection is at heart an ethical issue for individual journalists.

Order disclosure

It goes without saying that Mugonyi, as a former journalist, not only understands this but survived many years as a political and parliamentary affairs reporter by protecting his sources. 

He was never forced to reveal his sources as confidentiality of sources is legally protected by our laws.

It is clearly provided for in the Media Council Act, 2013 that no person may require a journalist to disclose the source of information contained in a publication unless there is an overarching public interest.

Even in such a case, it must be established to the satisfaction of a court that it is necessary in the interests of justice or territorial security of the nation-state or prevention of disorder or crime to disclose than to protect the sources. 

Mugonyi is not a court of law. Even the court, after undertaking a reasoned balance of all the interests, can only order for disclosure on one of the four specified grounds.

The courts also reserve the discretion to refuse to order disclosure even when the conditions for an exception are met.

Proof that disclosing the source is merely convenient or expedient is not sufficient however powerful a person is in society. The best he could have done if he were offended, both as a public officer and a trained journalist with many years of experience, he could have filed a complaint with the Media Complaints Commissions or wrote to the media house with the facts correcting the misrepresentations as he saw them.

Conveyor-belt journalism

The Media Complaints Commission, which consists of seven members competitively recruited is established by law to mediate or adjudicate disputes between the media and Government, the public and the media and within the media.

It has heard and effectively adjudicated cases and complaints even from President Uhuru Kenyatta.

Fourth, we must recognise the potential detrimental impact on public interest journalism, and on society, of source-related information being revealed forcefully.

Fifth, the idea that a public servant can insolently threaten an employee of a private company with sacking purely because of a story he is not pleased with means editorial independence is under attack and that to survive, most journalists may resort to self-censorship of “conveyor-belt journalism” to please those in power.

To stem the tide of such threats, it is time for journalists, editors and those keen to preserve media freedom in Kenya to lobby for two things. First, recognition that source protection laws must be strengthened by complementary whistle-blower laws.

Second, we must lobby for criminalisation of arbitrary, unauthorised and willful violations of confidentiality of sources by third party actors whether they are public officials or media colleagues.


-Mr Henry Maina is the Regional Director, ARTICLE 19 Eastern Africa and a Member of the Media Complaints Commission of Kenya.

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