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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