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President Uhuru Kenyatta’s efforts to gag media will fail

By Dominic Odipo | December 2nd 2013

By Dominic Odipo

Kenya: Who, at the end of the day, should have the last word on what the Kenyan media writes or broadcasts? Should it be the President, the cabinet secretary in charge of information and communications, the leader of the majority in Parliament or the Chief Justice of the Republic?

Should it be the editorial boards of the different media houses themselves, whatever regulatory boards the different media houses create among themselves or some other super regulatory organ created by the political party coalition which, for the time being, happens to hold the majority seats in both our National Assembly and the Senate?

Expended energy

The answers to these questions may not be very obvious today, but one or two historical references might help clarify them just a little more. When similar or related questions were publicly and privately asked about the human slave trade in the British Empire during the 17th and 18th centuries, a lot of energy was expended deploying the most powerful arguments on both sides of that slavery divide.

Today we all know what the objective realities of the human slave trade and the consequent slavery of those unholly centuries were.

We know that both the slave trade and slavery itself were inhuman, immoral and totally at odds with the best economic interests of both the slaves themselves and their masters. We know that never in its entire history was slavery ever in the best imperial interests of the British, the national interests of the United States or of the economic interests of any of the African colonies from which most of the slaves were forcefully and brutally extracted.

If today, in the 21st century, we try to deploy our weight of numbers in Parliament and our command of State House, to try and muzzle what has been a relatively free Press in this country, we shall be retracing our steps to the British Empire of the 18th century.

Instead of restricting and holding under chains our strongest and mightiest, we shall be doing exactly the same thing but by restricting their ideas and artistic prowess to their own minds and backyards.

We shall be condemning thousands of our best brains to sheer, shameless waste as we deny them the opportunity to express themselves freely, fully and fruitfully within our various newspapers, radios and television channels.

We would be making a mistake so horrendously foolish that, had we been living in Ancient Athens, we would probably have run the risk of being deported altogether.

At the end of the day, the ultimate test of what our national media should or should not publish is what can generally be recognised as our national interest. No more and no less.

If it cannot be demonstrated that whatever any Kenyan media publishes is manifestly against the public or national interest, then whatever that material is must be left to stand, protected by our laws. It does not and should not matter what the President or the Commander-in-Chief of our armed forces thinks about the report. It should not matter what the majority in our National Assembly thinks. It is this truth which should serve as the foundation stone upon which the strongest pillars of our nationhood should be constructed.

In the middle of 1971, the New York Times, a New York City daily, obtained a bundle of what were supposed to be top secret papers from the Pentagon, the headquarters of the American Department of Defense. At the highest editorial levels of the paper, the six -million- dollar question immediately arose:

Should the paper publish these sensitive “Pentagon Papers” so that the American public could decide for itself whether or not it had made sense for the American government to send its armies into Vietnam in the first place? When the American government, then led by President Richard Nixon, learned of the  New York Times’ intentions to publish these papers, it immediately went to court to seek an injunction barring the paper from publishing any of the relevant secret information it had in its possession.

Heavy duty dailies

But before the court process had been completed, the paper published the Pentagon Papers, respectfully declining to follow the governments directive. The war between the New York Times and the government of the United States was out in the open.

A few days later, The Washington Post, another heavy duty daily based in Washington DC, the nation’s capital, also got hold of those secret papers and promptly decided to publish them, regardless of what the situation in the courts between the New York Times and the government was. When the government finally took this dispute to the Supreme Court for the final decision, the Court ruled that the “government had not met the heavy burden of showing justification for restraining further publication of the Pentagon Papers as endangering national security.”

 The entire case swung on just two inter- related issues: national security and the national interest.

Those who are now trying to gag our media through all sorts of excuses and technicalities, need to go back and read these American cases of the 1970s very carefully because that is where the rest of the world is going.

Commenting on this saga shortly after its conclusion, Katherine Graham, who was then the publisher of the Washington Post, said:

“We believed from the start that the material in the Pentagon Papers was just the kind of information the public needed in order to form its opinions and make its choices more wisely.

“In short, we believed the papers were so useful to a greater understanding of the way in which America became involved in the Vietnam War that we regarded their publication not as a breach of the national security, but, rather, as a contribution to the national interest.”

The writer is a lecturer and consultant in Nairobi.

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