Liberty of thought key to media freedom

By Kethi Kilonzo

our Excellency, it is my advice you return the Kenya Information and Communications (Amendment) Bill 2013 to Parliament.

Parliament has an obligation to uphold and protect fundamental rights and freedoms under the Constitution. These rights and freedoms are not negotiable.  They do not belong to the State, and they cannot be taken away by Parliament.

Our Constitution recognises that culture is the foundation of the Nation and is the cumulative civilisation of Kenyan people. The Constitution places an obligation on the State to promote national and cultural expression through media, communication and information.

Under the Constitution, any limitation to a fundamental right and freedom must be reasonable and justifiable. Are the proposed fines reasonable? Are they justifiable? Do they befit the crimes they seek to punish? The Constitution is clear.

The State cannot penalise any person for any opinion, view or content of any broadcast publication or dissemination.  The State cannot exercise control over or interfere with broadcasting, production or circulation or any publication or dissemination of information by any medium.

Kindly pose to Parliament the question whether the changes they propose to make to the law to limit freedom of thought, belief, opinion, expression and media meet the benchmarks of the Constitution.

The Constitution provides that there should be a body that sets media standards and regulates and monitors compliance with those standards. Such a body must be independent of control by government, political or commercial interests. It must reflect the interests of all sections of the society. The proposed amendments to the law seek to create a new body to replace the Communications Commission of Kenya. It will be called the Communications Authority of Kenya. Parliament proposes that you appoint the chairperson of the Board of this authority. The responsible Cabinet Secretary will appoint seven persons to the Board.

Parliament misunderstood the provisions of the Constitution. They propose that the Communications Authority, whose board will constitute of at least 8 members appointed by the government, establishes a Committee to set, regulate and monitor compliance of standards in the media. Kindly advise Parliament to set up a different body, one that is independent of government, politics and business interests, to set and regulate standards in the industry and to monitor compliance. That is what the Constitution requires.

A tale is told of an Emperor who loved new clothes. He spent his whole life searching for new things to wear. The only time his people saw him was when he walked through the city showing off his newest clothes. He didn’t do any other thing other than shop.

One day two strangers arrived in the city. They offered to sell him magical clothes. “What magic?” the Emperor asked. “Your majesty will be able to see our magical cloth, but anyone who is stupid or not fit for his job will see nothing. To stupid people our cloth will be invisible,” said the cloth brokers.

After paying 6 bags of gold for his magical clothes the Emperor walked out of the palace and onto the streets naked, with only purple gloves on his hands. In the entire kingdom only one little boy had the bravery (nay folly) of pointing out that the Emperor was naked. 

Who will tell the Emperor that he is naked? Parliament has an obligation to protect the Constitution and to promote the democratic governance of the Republic.  The changes they propose to make to the law do the opposite. If they don’t make the necessary changes to the law, the Courts will. Like they did with the Division of Revenue Act 2013. Your Excellency, liberty of thought soon shrivels without freedom of expression.