ASSOCIATION FOR PROGRESSIVE COMMUNICATIONS (APC)
COMMUNICATION RIGHTS IN THE INFORMATION SOCIETY (CRIS) CAMPAIGN
GLOBAL GOVERNACE AND COMMUNICATION RIGHTS
A status review for Kenya
(Final report)
September 2004
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Table of contents
Acronyms
A. Creating Spaces for Democratic Environments: The Public Sphere
A Summary
A.1 Freedom of Expression
A.1.1 Key Characteristics of Freedom of Expression
A.1.2 The Need for Constitutional Reform
A. 2 Mass Media Freedom
A Brief History
A.2.1 Legal Barriers and Reform of Media Policy
A.3 Access to Public and Government Information
A Background
A.3.1 Characteristics of Access to Public Information
A.3.2 Monitoring and Evaluating the Public Sector
A.3.3 Policy on ICT in Government
A.4. Corporate Information Disclosure
A.4.1 A Background on Corporate Governance in Kenya
A.4.2 Legislation and Regulation on Corporate Governance and Information Disclosure
A.4.3 Performance in Corporate Governance and Implications on Public Interest
A.5 Diversity, Accessibility and Plurality of Media and Content
A.5.1 Content Diversity
A.5.2 Economic Barriers to Media Access
A.5.3 Class, Geographical, Culture and Linguistic Barriers
A.6 Effective Participation in Media Policy and Governance
A.6.1 Engagement in the Long Awaited Media Legislation
B. Reclaiming the Use of Knowledge and the Public Domain
B.1 Policy for a Balanced Knowledge Sharing Regime
B.2 Practical Measures to Encourage a Balanced Knowledge Sharing Regime
B.2.1. Actions to Encourage Knowledge Creation and Dissemination
B.2.2 Interpretation and Implementation of National and International Law
B.3 Availability of Publicly Funded Works
B.4 Participation in Policy Formulation
A Background
B.4.1 Participation at the National Level
B.4.2 Participation at the International Level
C: Civil Liberties & Political Rights in the Information Society
Background
C1: Awareness of, access and control of the use of all personal information held in digital form
C2: Privacy in electronic communication
C2.1 Legal framework to ensure a right to privacy of communication
C3: Transmission of electronic information and censorship
C3.1 Framework to minimize surveillance by electronic means
C4.Freedom of association in the electronic sphere
C5.Effective participation of civil society in the governance process
Future directions
D. Securing equitable and affordable access to ICTs
Background
D1: Affordable, equitable and appropriate access to ICTs
D1.1 A political and regulatory framework for universal access
D1.2 Policy measures, conventional and innovative, beyond the market and corporate-driven approach
D1.3 Support for local industry development across ICTs sectors,
D2: The availability of relevant content
D3: The availability of widespread skills and capacities to use ICTs
Future directions
References
Annex1: Relevant sections of the Kenya Communications Act 1998
Annex 2: An Advocacy Strategy; Pillar A and B
Annex3: Advocacy Strategy - Pillar C & D
Table of figures
Figure 1: domestication of Universal Declaration of Human Rights in Kenya
Figure 2: licensed ICT operators
Figure 3: growth and increased availability of cellular services
Figure 4: reduced cost and increased affordability for international calls
Figure 5: changing fixed line tariffs due to rebalancing
Figure 6: target audience for advocacy
Figure 7: Advocacy actions and choice of media
Acronyms
CCGCentre for Corporate Governance
CCKCommunications Commission of Kenya
CEOChief Executive Officer
CSOCivil Society Organisation
ERSWECEconomic Recovery Strategy for Wealth and Employment Creation
GOKGovernment of Kenya
ICTs Information & Communications Technologies
IDIdentity cards
IDRCInternational Development Research Centre of Canada
IEAInstitute of Economic Affairs
IEAInstitute of Economic Affairs
KBCKenya Broadcasting Corporation
KCBKenya Copyright Board
KENICKenya Network information Centre
KIPOKenya Industrial Property Office
KshsKenya Shilling ( exchange rate Kshs 80 to USD)
M&EMonitoring and Evaluation
MCSKMusic Copyright Society of Kenya
MISCMedia Industry Steering Committee
NCCKNational Council of Churches of Kenya
NCSNational Communications Secretariat
NGONon governmental organisation
NGONon Governmental Organisations
OKNOpen Knowledge Network
PRSPPoverty Reduction Strategy Paper
TESPOKTelecommunications Service Providers of Kenya
TPSGTelecommunications Sector Policy Guidelines
VOIPVoice over internet Protocol
VSATVery Small Aperture Terminal
WIPOWorld Intellectual Property Organisation
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A. Creating Spaces for Democratic Environments: The Public Sphere
A Summary
Three broad forms of expression play a critical role in public life in Kenya: public meetings including political rallies and public demonstrations and the mass media. Over the last ten years, the public desire for democratisation has coalesced around constitutional reform. The constitutional struggle was heightened in 1997 when public demonstrations were met with significant state force. The government later ceded to a people driven constitutional process. In 2004, the process has hit a political grid lock and a recent public demonstration was forcefully resisted by the state. The right to communicate through public meetings is not as yet guaranteed in Kenya.
Kenya is a young democracy, having only re-introduced multiparty politics in 1992. Prior to 1992 one public broadcaster, largely acting on behalf of the state, monopolised radio and television broadcasting. Laws on public security and sedition were used to arrest and detain persons producing and disseminating information critical of the government. On the basis of the same restrictive laws, certain local and international publications were banned. In this repressive environment, the pluralistic print media opted for self censorship to keep in favour with the government.
The period after 1992, has witnessed greater freedom of expression and the proliferation of mass media. There have been some changes to communication policies but generally these have been done, by the government, in a begrudging fashion. Gains in communication policy have been limited by increased use of restrictive laws such as those to do with official secrets, defamation and security. Also, liberalised airwaves were distributed on the basis of political allegiance. Independent media, in the absence of a media policy, walk a tight rope of uncertainty depending on how information affects the politics of the day. A new government has been in place since 2003. There has been greater freedom of expression and more willingness to genuinely reform media policy and protect communication rights. However, occasionally old state repression rears its head and the long awaited Media Council of Kenya Bill is yet to be published.
A.1 Freedom of Expression
A.1.1 Key Characteristics of Freedom of Expression
Three broad forms of expression play a critical role in public life in Kenya: public meetings including political rallies and public demonstrations and the mass media. Kenya is a poor country and illiteracy rates are high. Many rural Kenyans particularly women, who do not have access to radios and cannot read or afford newspapers, rely on oral communication. Civic education programs that educate on voting and other rights of the citizens, for example, have to be communicated through public meetings. The previous government for fear of loosing power, to the opposition, frequently disrupted and violently dispersed meetings on civic education, land rights and human rights.
A.1.2 The Need for Constitutional Reform
For over ten years, the public desire for political reform has coalesced around constitutional reform. As will be demonstrated later, in regard to media policy, the current constitution is the central barrier to democracy in Kenya. It secures in power an unimpeachable President who can usurp the role of the judiciary and parliament. Power is highly concentrated in the Executive and all other legislation determined by the convenience and interests of the Executive. The Executive’s comfort with media coverage often determines the degree of media freedom.
The constitution struggle was heightened in 1997 when it became apparent that the second multiparty election would be stolen, as had the first. (Mutunga, 1999:169). One of the early gatherings, a city centre demonstration and constitutional rally, was called on 3 May, 1997. The venue of this educative rally was at the historic Kamukunji grounds in the low income eastern side of the capital Nairobi. First, the participants of the demonstration were attacked by state hired militia ‘Jeshi la Mzee[1]’ comprising criminal elements prone to violence. Then, the rally grounds were surrounded by riot police creating an atmosphere of fear and demonstrating the high stakes of the meeting as perceived by the government. Although activists and politicians succeeded in addressing the meeting, those who attended it were beaten up and some arrested by the police and ‘Jeshi la Mzee’ as they turned to go home. Later the offices of the organisers was vandalised and computers, diskettes and other items stolen, (ibid).
After, several confrontations of this nature during what was a very turbulent year, the government conceded to minimum constitutional reforms. These reforms, managed by an inter-party parliamentary group, legislated the Constitution Reform Commission and set guidelines for a people driven constitution making process. The process included civic education and gathering of views from all parts of the country in public meetings. Today the people driven constitution making process, conducted successfully over a two year period, has hit a major stalemate. The stalemate has been precipitated by disagreements among political parties within the ruling coalition. The constitution is now a political powder keg. But there has been no state interference to the low key public meetings that have been conducted so far.
By law, any political party or group may also hold a political rally, without the need for a license, as long as they inform the police in advance. Yet this legal right needs in practice to be vigorously defended by civil society. On two occasions, the new government has physically restrained the opposition from holding political rallies. At another meeting hosted by a government rebel, the police failed to adequately protect the politician and his wife from violent pro-government hooligans.
An independent Human Rights Commission has also been formed through an Act of Parliament. It is funded by the State and chaired by a respected human rights lawyer. Though only in it formative stage, the Commission should provide a safeguard against the return of state terror to public forums.
Ultimately, only fundamental reform of the Constitution can secure and safeguard freedom of expression. The draft Constitution (from the review process described earlier) contains a Bill of Rights which provides for inalienable rights of a citizen and stipulates the circumstances in which those rights may not be exercised. All other legislation will have to honour these provisions. The rights identified in the draft Constitution include the freedom of expression, freedom of the media, access to information and assembly, demonstration, picketing and petition. But as noted earlier, the Constitution process has reached a stalemate and its future is uncertain.
A. 2 Mass Media Freedom
A Brief History
Prior to the telecommunications legislation of 1998, pluralism existed only in the print media. This law, among other things, liberalised the broadcast media allowing and other players to join the public Kenya Broadcasting Corporation (KBC).
The history of Kenyan independence can be traced and evaluated on the basis of the freedom of the media and the treatment of media professionals. At independence, in 1963, the dominant mainstream newspaper was the East African Standard. Essentially a colonial mouthpiece, it has since developed greater editorial balance and subsequent acceptability. The Nation Group of newspapers was founded in 1960, and is now the leading mainstream print media group, also owning radio and television stations.
Alternative press also existed, mainly from religious communities. In the 1970s and 80s, Target newspaper of the National Council of Churches of Kenya (NCCK) was the alternative newspaper with the widest readership. Target produced hard hitting commentaries and editorials. The public was attracted to its bold criticism of certain government policies and practices that the mainstream media shied away from. For example, in 1975 when legislator J.M. Kariuki was assassinated in a gruesome manner, Target questioned the silence of government. During this highly charged political atmosphere, The Daily Nation newspaper had carried out a campaign claiming that J.M. Kariuki had fled the country. The Target editor was jailed without trial by the President for championing for the investigation of the assassins (Odero, 2000:11).
With the advent of multi-party politics in 1992, and increased confidence in the mainstream media to publish more objectively, the government sought new and more subtle ways to censor and control the press.
A.2.1 Legal Barriers and Reform of Media Policy
The primary law of the country is the Constitution and hence its centrality in the country’s political evolution. It is also the main framework that determines the media’s legislative and policy framework. The Constitution is a weak custodian of media freedom and communication rights. It states:
“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 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” (Constitution of Kenya, Article 79(1).
This limited constitutional provision is further undermined by numerous ‘claw back’ constitutional and statutory clauses, used to frustrate and stifle the mass media. They include the following:
1) The Constitution - Section 85 on Public Security
This section empowers the President to censor or prohibit the communication of information or means of communication including documents that disseminates false reports.
2) Penal Code, Cap 63 and 52 on Public Security and Order
The one party era ended in 1992. Before 1992 during the one party era, the Public Security Act was used to detain journalists and university professors for political reasons. It was amended in 1997 forbidding the detention of people for political reasons.
3) Penal Code Cap 56 on Sedition
This section of the law defines the felony of sedition. A seditious intention is an intention to overthrow the government by unlawful means. It also covers disaffection or hatred towards the person of the President of Kenya, promoting hatred against the administration of justice, rousing discontent among the inhabitants of Kenya or promoting hostility between different sections of the population.
4) The Books and Newspapers Act, Cap 111
Every publisher of a newspaper is required to send daily returns to the registrar and also submit returns of vital information regarding the publication and circulation annually. In addition, all newspapers are printed after paying a bond of Kshs 10,000.
5) Official Secrets Act
Under this law it is an offence to approach or enter a ‘prohibited place’. It is also an offence for a government official to provide information to a person to whom he is not authorised to communicate it. It is also an offence to receive such information. This law has been invoked recently by the Head of the Civil Service and Secretary to the Cabinet. A Member of Parliament recently tabled information demonstrating an inappropriate Kshs 2 billion procurement of passport and security equipment. This revelation resulted in an investigation by the Office of the President, Parliament and the Efficiency Monitoring Unit of the Ministry of Finance. Three senior government officials, two of whom are Permanent Secretaries (Chief Ministerial Secretaries), have been suspended over this irregular transaction. When the scandal first came to light in April 2004, the Head of the Civil Service sent out a circular to all government officials invoking the Official Secrets Act. The circular asked the officials to desist from divulging government information for reasons of public security and the ‘effective running of the government’.
6) Defamation Act, Cap 36
This is ostensibly to protect citizens against libel and defamation.
In 1992, damages were increased for libel relating to accusations on offences punishable by death (treason and murder) to an amount of not less than Kshs 1 million, and at least Kshs 400,000 for offences with a maximum jail term of 3 years. The burden of proof in defamation cases lies with the journalist. The fact that the journalist may lack knowledge on the falsity of a statement is irrelevant. The complainant does not have to prove that the information disseminated actually lowered his public standing (Omale 2000:199).
In 2000, a Cabinet Minister, Mr Nicholas Biwott, was awarded Kshs 40,000,000 in total by courts on the basis of the Defamation Act. The charges had been brought against two authors, publishers and bookshops involved in two books. The books, Moi – the Making of an African Statesman and Dr. Ian West’s Case Book, contained allegations that Mr Biwott had been involved in the 1990 murder of the Foreign Minister Mr Robert Ouko. These astonishing judgements demonstrated clearly the courts intention to protect public figures before a free media. They were the highest ever paid for libel. Also, the motive of the books had not been established to be malicious (as determined in New York Times vs Sullivan at the US Supreme Court in 1964). The courts also imposed a greater burden of proof on the media (Legal Resources Foundation: 2003:39).
7) Contempt of Court
The courts have constitutional power to act on conduct that may obstruct, prejudice or distort the administration of justice. There are two recognised forms of contempt: civil contempt where orders not to publish a particular article are disobeyed and criminal contempt where publishing may prejudice a trial, scandalise a court, interfere with judicial proceedings or refuse to reveal sources of information to a court.
This apparently reasonable legal position was abused by a corrupt judiciary in Kenya. The media could not publish information on judges taking bribes or making dubious compromised rulings –yet it was common knowledge that such practices took place. The new government has since suspended numerous judges in a dramatic attempt to clean up the judiciary.
Journalists have a professional duty to protect their sources of information. This is in conflict with the criminal contempt position. This has interfered with media freedoms with occasional serious consequences. The Sunday Standard newspaper recently published information from police interrogation of suspects in the murder of Dr Mbai, a Commissioner of the Constitution Review Commission. The Sunday Standard had obtained a video tape of the interrogation. Editors of the paper and police officers involved were arrested and arraigned in court. The prosecutors were demanding information on the theft of the video tape while the editors insisted it was not in their place to reveal their sources. The case against the editors appears to have hit a dead end.