In 1988...

President Daniel arap Moi proclaimed 1987 ‘a year of discipline’ and increasing use has been made of emergency powers… One of the most difficult aspects of Kenyan journalism is that limitations on reporting are not written down, and are largely dependent on the mood or whim of the President, who does not hesitate in taking ad hoc measures against journalists. Day-to-day editorial control of content and perspective is exerted by the Office of the President either through direct-censorship telephone directives, or written instructions, backed up by the threatened or actual arrest and imprisonment of individual journalists-cor through threatened or actual withdrawal of government advertising.

A government censor is stationed at the international airports to vet the contents of all incoming publications for mass circulation. No private radio or television transmitters have ever been approved for operation in Kenya, although applications have been filed. Read more...

In 2008...

Kenya is a constitutional democracy. Although Kenya gained its independence in 1963 and its Constitution was amended when it became a Republic in 1964, there was no political liberalisation within the country until 1991 when President Daniel arap Moi yielded to international pressure and introduced a multi-party system. However, the Kenyan African National Union (KANU), which had been in power since 1969,remained the ruling party until 2002 when the National Rainbow Coalition Party (NRCP) won elections and Mwai Kibaki became President.

In December 2007, following the re-election of Mwai Kibaki as Kenyan President, amidst allegations of vote-rigging from opposition parties and international election observers, violent protests broke out across the country. Initial anger at the controversial reelection of Kibaki soon developed into a conflict along ethic lines between the Kikuyus, Embus and Merus (who favoured Kibaki) and the Luos, Kalenjins andLuhyas. During the crisis an effective media blackout was imposed on the Kenyan media; live broadcasting was banned for more than a month, and journalistswere harassed and intimidated.

Freedom of expression is guaranteed by Chapter V, Section 79(1) of the Constitution: ‘Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence.’

The political liberalisation resulting from amendments to the Constitution in 1991 brought significant changes to freedom of expression within the country. The media, both public and private, were able to broadcast opinions more freely and increase the political content of programming.

Legal and Regulatory Framework

To date there is no single media law in Kenya and clear and coherent legislation that adheres to international standards is lacking. A media regulatory body independent of the government – that is, a body whose board is not appointed by or accountable to the Kenyan Ministry of Information and Communication – has yet to be established.

The Kenyan legal system contains many laws that in one respect or another restrict or threaten freedom of expression. The Kenya Communications Act 1998, the Kenya Communications Regulations 2001, the Official Secrets Act, and the Books and Newspapers Act 2002 are some of the laws with unduly restrictive provisions. The Books and Newspapers Act introduced in 2002 by the government of Daniel arap Moi has not been repealed and continues to allow publications to be banned and vendors to be arrested.

The Preservation of Public Security Act 1967, which had previously been used to allow the detention without trial of many journalists under emergency powers, was amended in 1997. The 1997 Public Security Act still permits the arrest and detention of journalists on grounds of ‘compromising public safety, public order, morality or internal defence’. This Act, if invoked by the government, can still severely restrict freedom of expression, association and personal liberties. It is a reminder of the oppressive laws in place during Kenya’s colonial era rather than reflective of the international standards and the guarantees contained in the African Charter on Human and Peoples’ Rights which Kenya has committed to uphold.

Section 56, 57 and 58 (Sedition Laws) of the Penal Code were repealed by the Statute Law (MiscellaneousAmendments) Act 1997 but journalists continue to be charged with sedition or seditious libel under laws relating to defamation. The Penal Code offers special protection to foreign princes, the President, Cabinet Ministers and Parliament.

Since 1992, as government constraints have eased, the media have grown significantly. Access to information has also improved; the public can now far more easily gain access to copies of the Kenyan Constitution, for example. However, Kenya does not yet have a Freedom of Information law and although a Bill introduced by the Kenyan Ministry of Information and Communications is currently before Parliament, the experience of Right to Know campaigners who campaigned for draft Bills in 2005 and 2006 is not promising. When ARTICLE 19 and the International Commission of Jurists made the case for guaranteeing the right to access information in Kenya’s reformed Constitution, concerns about the conflict between access and national security prevailed.

‘media workers and freedom of expression campaigners have been consistently disappointed with the slow progress in reform of media policy and legislation.’

Even if the latest Freedom of Information Bill became law, media workers and freedom of expression campaigners have been consistently disappointed with the slow progress in reform of media policy and legislation. The government that came to power in 2002, led by President Mwai Kibaki, has failed to fulfil many of its pre-election promises for reform of media legislation.

The Information Minister, Mutahi Kagwe, introduced a Media Bill to Parliament in August 2007 which would establish a Media Regulatory Board and a Media Advisory Board, thus replacing the existing independent Media Council of Kenya. The Bill hands power to the Information Minister to appoint the chairman and members of the new, government-funded body. Significantly, the new body would keep a register of all journalists. The licensing of journalists is a recognised tool for governments to exert their authority over the media. This Media Bill provoked significant hostility among media practitioners and owners, in particular because of a provision compelling editors to reveal their sources if their reports become the subject of court cases. Media owners, civil society groups and the law society opposed the Bill as contrary to constitutional provisions guaranteeing freedom of the press and by extension freedom of expression. The Bill was passed through Parliament in late August 2007 but was rejected by the President on the grounds that a last-minute amendment limited the confidentiality of sources and therefore posed a threat to press freedom.

The Communications Commission of Kenya (CCK) is the ostensibly independent regulatory authority, responsible for the licensing and registration and regulation of telecommunications, television and radio communication, and postal/courier services.

The CCK is overseen by the Ministry of Information, so that in reality its independence is limited. There are, however, also non-State media regulatory bodies. The Media Council of Kenya, set up in 2004, is a key campaigner for a self-regulatory system. Stakeholders such as the Editors Guild, Kenya Union of Journalists (KUJ) and the Kenyan Correspondents Association, have also set up the Media Industry Steering Committee.

Political Expression

Since the adoption of a multi-party political system, opposition parties have been able to campaign freely in elections and, in the case of the Rainbow Party, successfully. However, election observer missions to Kenya in 2002 noted an increase in the proportion of coverage devoted to the KANU party in the main news programmes of the Kenyan Public Broadcaster (KPB).

News Media

The foreign press, which uses Kenya as a base for covering much of the East African and Horn of Africa region, has traditionally exercised fairly strict self-censorship so as not to jeopardise its access to the country. For example, until recently, corruption was not widely reported in the foreign press. The high-profile story of John Githongo, formerly of the Kenyan Anti-Corruption Commission, who was exiled to the UK for exposing the levels of corruption within the Kenyan government in 2006, shows that the foreign press are beginning to relax the degree of self-censorship they exercise.

The foreign press are not always welcomed in Kenya. In 2001 the head of the KUJ called for the President to give the KUJ exclusive authority over accreditation for foreign journalists based in Kenya.

While the number of daily newspapers in Kenya did not change between 2000 and 2006, the number of weekly newspapers increased from five to nine. The national daily paper the Daily Nation has the largest readership in the country.

Although there has been a certain lack of investment in the Kenyan press, the East African regional press is popular. For example, 15 newspapers published in Tanzania are also read in Kenya, as well as some newspapers published in Uganda. Although the situation for the Kenyan press has improved over the years, it suffered a shock when in2003, despite the election of a party that had promised media reform, there was a crackdown on unregistered newspapers. The current system of self-regulation is under threat from the proposed Media Bill.

Radio is very important in Kenya as it reaches a wide range of the population, especially since the increase in local language stations addressing different ethnic groups. There were 304 private and State radio stations in Kenya, according to the CCK, in 2007. Although this number is high, many of these radio stations are ‘not on air’, reflecting a general problem for radio stations which often fail to go or stay on air. This is due to a lack of resources as competition for advertisement revenue is increasing but closures can also be imposed because of interference with other frequencies.

Until the foundation of the Kenya Television Networks (KTV) in 1990 the only television and radio network in Kenya, the Kenya Broadcasting Corporation (KBC), was largely State-controlled. In 2005, there were eight domestic Kenyan television channels in the country and four non-domestic channels.

New Technologies

Kenya currently has an estimated 1,055,000 Internet users and 65 Internet Service Providers (ISPs). This is well ahead of many African countries. However, the number of domestic businesses able to take advantage of the online revolution is not growing as fast as the government would like. For example international banks with online banking resources dominate the banking sector in the country. The government has therefore brought in some protectionist measures to allow local technology businesses to grow. ISPs must now be 70 per cent locally owned.

The telecommunications sector is regulated by the CCK, which controls the distribution of licences. The telecommunications market has swollen over the past couple of years with approximately 400,000 lines for as many as 30 million people. Mobile phone users amount to approximately 6.3 million.

Repression of Media Workers

Defamation is still a criminal offence in Kenya, despite assurances by the Attorney General that the relevant law would be repealed. The maximum fine for civil defamation is 20,000 Kenyan Shillings (US$269) but courts have been known to award fines 25 times this sum.

In 2006, at a time of considerable tension between the government and The Standard Group, two journalists from the The Standard daily newspaper were arrested for defamation, although it was not made clear under which law they were charged. They were released after a brief period and the charges were later dropped. The case received much international and local coverage and condemnation.

In 2007, one journalist was in prison in Kenya, having failed to pay a fine of 500,000 Kenyan Shillings (US$7,150) imposed for libel. Mburu Muchoki, editor of the tabloid weekly The Independent, was forced to serve a one-year jail term after being convicted of libelling Justice and Constitutional Minister Martha Karua in 2004.

During the 2007 election crisis and riots, the Kenyan media censored themselves to a significant extent and did not deal adequately with the politically motivated violence and ethnic divisions. The reasons included inadequate editorial oversight and lack of experience in coverage of conflict situations. The precedent of the role of the Radio Télévision Libre des Mille Collines (RTLM) in the Rwandan genocide during the 1990s left much of the Kenyan media fearful of exacerbating their country’s fragile post-election situation. As a result, they did not always provide information of public interest to Kenyan society. For instance, they failed to recognise early warning signs that many election messages contained an intrinsic ethnic and regional mindset and frame. The media failed to adequately engage with and question politicians involved in ethnic politicking, and did not report outright the allegations of election-rigging for fear of exacerbating the violence. Lastly, many media outlets tended to be politically affiliated, and there were widespread allegations that journalists at the grassroots were bribed, intimidated or partisan.

Media Censorship

Even though the press is relatively free in Kenya, tensions between the government and the media remain and take the form of threats, insults and legal challenges resulting in the imposition of fines. Journalists investigating corruption are rarely subject to physical harm, but threats are sometimes made, as are attempts to bribe them, contributing to a culture of self-censorship.

In recent years, there have been increasing incidents of harassment by the Kenyan security forces of journalists and media outlets. In some cases this harassment has been neither spontaneous nor subtle. The Standard Group, which owns The Standard and the Kenya Television Network (KTN), had its newspaper offices raided by armed police in March 2006 and its March edition set on fire and equipment damaged. The government has since used the media’s dependence on advertising to control and influence the content of newspapers critical of authorities and the administration. In 2007 the government decided to withhold State advertising from The Standard Group.

Art Censorship

The Kenya Film Commission was set up in 2005 with a mandate ‘to make Kenya a centre of excellence in film production’. The Commission has the power to issue licences and charge filming fees.

The main problem in Kenya with arts and culture is the lack of investment in the arts as a platform to voice opinions. The development of the film industry and the arts has been relatively slow, despite initiatives by, for example, the Ford Foundation. Recently it has picked up with the introduction of film festivals, and civil society groups such as the ArtMatters Critics Guild and ArtMatters. Info have held workshops and training for critics.