State should let media run its own affairs

By Ndung’u Wainaina 

NAIROBI, KENYA: After promulgation of Constitution of Kenya 2010 and peaceful March 2013 General Elections, Kenya is at a vital stage of consolidating democratic governance. For close to two decades now, the country has been experiencing a proliferation of ideas and opinions under multiparty democracy indicating that Kenyans are enjoying a certain degree of unfettered freedom of expression, freedom of opinion and media pluralism, which are all tenets of flourishing democracy. 

However, despite the inclusion of these freedoms in the country’s Constitution, democratic institutions are still very fragile and the protection of these rights is not ensured. To be sure, the country continues to face daunting challenges to the full realization of open society goals, values and practices. Deep-seated social and economic inequalities are glaring. Democratic institutions remain fragile.  

To consolidate this nascent democracy, the media, as a key player in any democratic arena, has a major role to play in educating, informing, sensitizing and mobilizing all political forces towards nation building. To do this, the media must serve not only as a watchdog of the society, but also as a prime mover for social dialogue and national integration. Media professionals must acquire the necessary professional skills to constructively analyze, criticize and report objectively on issues of national interest. 

A free and editorially independent press is an essential instrument for the promotion and consolidation of democracy and good governance. The assenting into law of the Kenya Information and Communication Bill, though with an opportunity to challenge constitutionality of certain aspects of it, speaks volume of potent threats to independent voices and dissent.  

Is there hope to stand up against this threat? Yes there is. In the case of “Indraprastha People and Anrvs Union Of India and Ors”, the New Delhi High Court held: “Self- regulation preserves independence of the media and protects it from partisan government interference. It leads to more efficiency since the media understand their own environment better than an external agency. As the media environment becomes global (through the development of the internet and digital platforms) questions of jurisdiction become complex in an external adjudicatory system. The self -regulatory system can fill the resulting gap. It is beneficial to the society in terms of money because the taxpayer is not burdened and the industry bears the cost.  Peer pressure is believed to be the best self- regulatory form of discipline.  Self- regulation can also drive up professional standards by requiring organizations to think about and even develop their own standards of behavior.” 

The Court a crucial point that true ethics and standards can be created only by independent media professionals, and can be obeyed by them only voluntarily. Any attempt to impose standards on journalists by law will result in arbitrary limitation of their legitimate freedoms, and restriction of the free flow of information in society. 

Two more court rulings advance this argument. The Supreme Court of India in the 1995 “airwaves” case the court said, “The broadcasting media should be under the control of the public as distinct from the government.”  Further, the Secretary, Ministry Of I and B Vs. Cricket Association Of Bengal the court left no doubt about the significance of free media. It said, “The freedom of the media is regarded as one of the greatest contributions of the democratic institution”.  

In Kenya, freedom of press has been guaranteed through Article 34 of the Constitution.  This reaffirmed by constitutional position is further reaffirmed by the in three different court rulings on the subject.

In the BrijBhushan and Another vs. The State of Delhi, Sakal Papers (P) Ltd vs. Union of India, AIR 1962 SC 305) and  Express Newspapers (Bombay) (P) Ltd. v. Union of India cases the court observed the importance of press very aptly. Court held that: “In today’s free world freedom of press is the heart of social and political intercourse. The press has now assumed the role of the public educator. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate Government cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities.”

Finally, in case of RomeshThapar v. State of Madras, the courts observed: “Freedom of speech and of the press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.” 

 Jubilee regime and National Assembly fails to appreciate that democracy is not only about disputes. It is also about a shared culture of disputing in a rational and fair manner.  Governments, even if freely elected, are participants in the political contest and therefore are not best-suited to enforce rationality and fairness. 

Democracy is incompatible with state custody of the press. Media self-regulation is an effort to impose democracy’s political culture, independent of political forces. It also advances the transition from a government-owned, state controlled press to one owned and controlled by civic offering contact for the users and to enhance the credibility of the news outlet by encouraging self-criticism. Media personnel need to make their own code of ethics and circulating them amongst themselves rather than the state doing it for them. 

Writer is Executive Director, International Center for Policy and Conflict and Regular Columnist: [email protected]