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Wednesday 1 May 2013

Will Uhuru’s regime walk the talk on media law?

By Juma  Kwayera
NAIROBI, KENYA: As President Uhuru Kenyatta starts making good his promises, one of his pledges on ensuring that a law is enacted to protect freedom of access to information have rekindled a debate in the media industry.
Questions abound whether this time round, the State will ensure the law is enacted.
President Uhuru’s promise brings back memories of retired President Mwai Kibaki who while in opposition before the 2002 elections, campaigned on a reform agenda that included delinking the media and the Judiciary from the State on the principle of separation of powers.

Ten years down the line, the curtain came down on Kibaki’s regime before the law was realised.
Although it is generally accepted that the media plays a critical role in insuring the citizenry against repressive and corrupt regimes, its operation in Kenya has sometimes elicited strong resistance from the State and its functionaries, especially where issues related to graft and other economic crimes, election disputes and procurement in Government are involved.
Lawyer and Centre for Multiparty Democracy Programme officer Omweri Angima says that failure to enact freedom of information is informed by awareness that it is an important tool in the fight against the excesses of those in powers as it provides checks and balances where democracy has not taken root.
Media as nuisance
“Power corrupts. When people are outside the government, they use the media. They see the media as their allies. But when they get into power, they see the media as a nuisance. What is evident in Kenya’s quest for democratisation is that politicians use the media for convenience, but they never believe in that freedom. There is no conviction in what they utter on campaign platforms,” says Angima, a former executive officer of original Forum for the Restoration of Democracy (Ford).
Since independence, Kenyan media has resisted attempts by the State to muzzle it, which saw a number of journalists arrested and detained for persistently exposing graft and other social ills in government. However, liberalisation of the media, which came with the political pluralism, did not completely shake off the State.
There have been concerted attempts to control opinion and flow of information through punitive pieces of legislation and judicial processes.
The media industry has further been restricted by laws on terrorism, the National Intelligence Service Act and hate speech, which give the State wide latitude to crack-down on freedom of speech and information.
The Human Rights Watch (HRW) which is an international watchdog, aware of the violations past regimes meted out on Kenyans, picked the thread from the new administration and is demanding that it lives up to its promises on media freedom.
“The new administration should also protect civil society and the media, and urgently investigate and prosecute those responsible for attacks on and harassment of human rights defenders, journalists and other independent critics. In the last four months, unidentified people have threatened 19 journalists and have harassed or physically attacked several human rights defenders,” HRW says in its latest report published last Thursday.
Uhuru’s pledge
In his address to Parliament, Kenyatta pledged: “Furthermore, we will seek to entrench the rights that are the hallmarks of a truly democratic society by proposing the Access to Information Bill and the Data Protection Bill. This government is for all Kenyans, whether they live here or abroad.”
State secrets
Journalist and publisher Barrack Muluka, while appreciating that the new President recognises the importance of a free media, cautions that it is too early to take him for his word.
Mr Muluka recalls that when Kibaki took the reins of power, he quickly relegated the crucial human rights issue to the backburner. Instead, his lieutenants went on the offensive, taking advantage of the laws on national security and State secrets in the repealed Constitution to constantly keep the media in check.
“It is easier for people to say they will uphold freedom of access to information when they are not in government. For instance, in 2007 presidential election campaign, former Prime Minister Raila Odinga promised he would guarantee protection of freedom of the Press. However, when in 2009 the media drew the attention of the country to the ravages of famine in northern Kenya as the government was steeped in corruption, he admonished the media — in particular KTN — for painting the government negatively,” observes Muluka.
The history of the Access to Information Bill is strewn with half-hearted efforts to shield the Fourth Estate from Executive affront.
Kibaki’s tenure
At present, Kenya lacks legislation that expressly provides for unrestricted access to information in government’s hands. The closest the country has come to having such legislation was in 2007 through a private member’s Bill, but procrastination by State and Parliament ensured that it lapsed at the first reading. It matured for debate and enactment long after the expiry of the tenure of Ninth Parliament.
Despite Kibaki promising to fast-track the freedom of information law, it was during his tenure that the State used excessive force to clampdown on the media. The 2005 raid on Standard Group by hired foreign mercenaries represents the darkest period in the country’s quest for the right to information.
Live coverage barred
Two years later, former Internal Security Minister, the late John Michuki, invoked the State Secrets Act to bar live coverage of news in the wake of the 2008 post-election violence, citing threats to national security.
According to International Commission of Jurists (ICJ), one of the many civil society groups that back media freedom in Kenya, the delay is injurious to democracy, good governance and transparency.
Justice processes
The procrastination was in spite of recommendations by the Commission of Inquiry into Post Election Violence that a freedom of information law be enacted to allow for more accountability as well as assist towards the transitional justice processes.
“The Freedom of Information Bill 2008 was thus drafted as a Government Bill and was to be presented to Cabinet for discussion and later to Parliament. However, despite numerous promises from the Ministry of Information and Communication that the 2008 Bill would get priority and be introduced in Cabinet and Parliament, the same is yet to be discussed,” ICJ says in a newsletter posted on its website.
Media freedom
“Having come from the post-election violence, it was a priority for the Cabinet to deal with issues that would bring about stability,” it says.
As the matter stands at present, there is no law that compels the State to provide information upon request. The Bill of Rights in the new Constitution upholds freedom to hold opinion without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference and freedom from interference with correspondence.

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