Kenya: The impact of Kenya’s legal and institutional frameworks on media freedom

Kenya’s Constitution 20101 has a new and progressive bill of rights requiring extensive reforms to both media and information management frameworks. While State practices and approaches to media regulation have affected the progress of reform, other factors have also been in play, including the failure to address existing legislative and institutional inconsistencies. This has produced a concertina effect hampering succeeding interventions, which have consequently required more arduous and extensive interventions.

As a result, various unconstitutional laws have persisted beyond the deadline for legislative review provided by the Constitution’s Fifth Schedule. Such intransigence causes concern about the full implementation of the Constitution; Kenya’s media history suggests that constitutional media freedom is likely to be compromised.

ARTICLE 19 Eastern Africa (EA) is presently running a project entitled Bolstering media freedoms through targeted legislative and policy advocacy. Often, the assumption is that the work is done once (new) policies, laws and institutions are in place, and little or no attention is given to the outputs, outcomes and impacts of their implementation. A focus of this project is the likelihood of a disparity in the legislation and frameworks relating to freedom of expression and the extent to which their implementation adversely affects practice. This has been the basis for ARTICLE 19 EA’s commissioning of this research report, which documents and analyses progress in media freedom, making proposals for improved protection for enhanced democracy and human rights.

The Constitution champions ‘informed’ participation: wananchi – citizens – have the right to information with which to usefully participate in debates on the conduct of national and devolved governance. By pressing those in authority to deliver, a free media with access to information can enhance people’s awareness and full enjoyment of their fundamental rights and freedoms, promoting a knowledgeable and engaged citizenry. During the initial four and a half decades of independence, some 30 changes were made to the post-independence constitution, mostly designed to create an infallible, ‘imperial’ presidency.2 The Executive and Judiciary became increasingly repressive towards media freedom, with media workers suffering arrests, disappearances, the destruction of property and even deaths.3 Kenyans responded through the 1990s with sustained demands for democratisation through a comprehensive constitutional review which, though it proved dramatic,4 eventually resulted in the improved governance framework offered by the Constitution of Kenya 2010.

After the 2002 ousting of the long-ruling independence party (the so-called Kenya National African Union regime), the era of the National Alliance Rainbow Coalition (NARC) government saw various liberating legislative and institutional reforms. For the media, 2004 saw the establishment of the self-regulating Media Council of Kenya (MCK) which was legislated for via the Media Act 2007. The Kenya Information and Communication Act of 1998 (KICA) was reviewed two years later, giving the Communications Commission of Kenya (CCK) a mandate to “exercise its (oversight) functions independent of any person or body (emphasis added).” In time, however, the NARC government grew increasingly intolerant of media freedom, as evidenced by the 2006 vandalising of the Standard Group’s (SG) premises.5 While activism aimed at achieving a free media prevailed into the last days of President Kibaki’s regime (2003-2013), the implementation of the legislative and institutional reforms continued to face great challenges. For example, the regime perpetuated the punitive financial obligations imposed on the print media,6 limiting any opportunity for indigenous small investors whilst also making life precarious for small and independent media workers.

As a result of the Fifth Schedule, the media environment anticipated extensive enabling legislative reforms within the three-year timeframe leading up to August 2013, which Parliament extended to December 2013. Instead, the opposite has happened with the passage of two controversial media laws in January 2014: the Kenya Information Communications (Amendment) Act 2013 (KICA 2013), and the Media Council Act 2013 (MCA).

These laws give the state a measure of control over the governing bodies they institute, and do not consequently meet their own threshold of being “free from Government, political and commercial interests”. The laws also compromise the independence of frameworks for appointments to, and removals from, office, and provide no safeguards for state funding while creating avenues for controlling the media bodies they establish. Additionally, they provide disproportionate penalties and fail to provide safeguards for the proportional application of sanctions, and also provide excessively broad functions and/or powers that will hamper the free and independent operation of media bodies.

Additionally, Kenyan media laws ignore international and regional standards of media freedom, and restrict or threaten freedom of expression in some way. Such laws allow the banning of publications, the arrest of vendors, and the arrest and detention of journalists on the grounds of ‘compromising public safety, public order, morality or internal defence’. Besides the financial and penal punishments mentioned above, they also provide powers to search media establishments, and seize equipment.

Various non-legislative realities also suppress media freedom, including the application of financial leverage used to influence content though, for example, advertising contracts. Additionally, threats have been directed at media establishments. For example, the blanket media ‘blackout’ on the airwaves of the opposition Coalition for the Restoration of Democracy party’s Saba Saba rally on 7 July 2014 arose from a Communications Authority (CA) threat to “take the necessary regulatory action, including the withdrawal of frequencies from offending stations.” Additionally, the concentration of media ownership threatens both diversity and breadth of content. This and other non-legislative methods of control undermine the public’s right of access to information, as well as the media’s public watchdog role. Consequently, “(w) hat you get is not always all there is to know… Doublespeak is the name of the game!”. There is a need, therefore, to understand the impact that constitutional, legislative and institutional reforms have both directly and indirectly on media freedom.

Finally, we present a brief review of Kenya’s performance on media and information freedom according to global frameworks. In the Reporters Without Borders (RWB) World Press Freedom Index 2014, Kenya’s 30.7 score placed it 90th globally. With Finland leading the 181 countries with a score of 6.4, Kenya’s 2014 position represented an 18-place drop from its 2013 position, with MCA and KICA 2013 being cited as significant reversals. In Freedom House’s (FH) Freedom of the Press index, 24 African countries now outperform Kenya. Having consistently improved between 2009 (when it scored 60) and 2012 (52), Kenya has now declined to 122/180 position globally with a score of 57 in 2014. The other countries in which ARTICLE 19 EA works also score consistently poorly: the best RWB position in the region is 143 and the best FH position is 164.

The next section of this report outlines the objectives, methodology and related assumptions of the study that ARTICLE 19 EA commissioned in order to assess the impact of Kenya’s legal and institutional frameworks on media freedom. Section 3 goes on to provide the constitutional, legal and institutional context of media freedom, while Section 4 reviews a sample of judicial and quasi-judicial media cases. Section 5 synthesises the issues that arise and Section 6 draws conclusions and makes recommendations for the future.

The impact of Kenya’s legal and institutional frameworks on media freedom.