Prior restraint rulings in Kenya threat to freedom of expression

The story stood out for me like a sore thumb. It was just one paragraph stuck up at the corner of the Daily Nation newspaper. A man, facing criminal charges, had gone to court to seek the court to order that his picture not be published in the media. The court granted his request. Not too long ago a famed Kenyan politician went to court to demand that cartoonists be restrained from caricaturing her. The court granted her request. Numerous times famous Kenyans have gone to court to demand that certain media houses, or the industry as a whole, be gagged and stopped from publishing information touching on them. Too often the courts have agreed with them.

What bothers me is whether this practice is good or injurious to the media and society for it touches on the freedom of expression and freedom of the press. Prof Steven Helle writes on “Prior Restraint” elaborately in Communication and the Law. This notion christened in American jurisdiction as “prior restrain” has a long history going back to the reign of King Henry VIII of England. That royal, who doubled as the head of the Church of England, rose to assume the twin responsibilities following a momentous period in the history of Western Europe following the period of enlightenment.

That German technology tinckler, Johannes Gutenberg, had nearly half a century earlier in 1450 invented the printing press. The new invention attracted all manner of people who thought they had things to say to come forth and say them in print. But this irked the King. To crack down on the spread of these ideas, King Henry VIII ordered, in 1530, that no person could print any religious book until such publication was examined and approved by the clergy otherwise the printer would answer to the King at the printer’s own peril. In 1538 the King extended this censorship to cover not just religious and other writings but to include errors in seditious opinion. Consequently speech that was expressly political was subject to censorship through a licensing system. This gave the government complete advanced discretion over whether a piece of material would be published.

Libertarians were quick to the draw. That ancient voice of civil liberty, John Milton, declared that truth and falsehood be let to grapple; “whoever knew truth to be the worse in a free and open encounter”. He said that it is not possible for man to separate the wheat from the tares, the good fish from the other fry; “that must be the Angels Ministery at the end of all mortal things”. When government, or any authority, seeks to bar the media from carrying content, any content, without even knowing the substance of that content, they exercise prior restraint or prior review of this content.

Such act is anticipatory, that the media outlet is going to carry content injurious to the individual that is subject to that content. it is exercised in bad faith. We have no mechanism to evaluate the content to establish its injurious nature.

England banned these legal requirements from its practice a century and a half after King Henry VIII instituted them. The laws did not last long in the United States either.

What are the dangers of such rulings? They place the right of the individual above society’s right to know. They deprive society from access to information which society may need to operate in a democracy. They impute improper intent on the part of the media. Straight and simple, it is censorship of the media and it is bad for democracy. Do these rulings then not visit media censorship via the back door?

Judge William Blackstone in his 1760 ruling considered that the liberty of the press is essential for the nature of a free society but only if there are no restrains on the press. He said that “Every freeman has an undoubted right to lay what sometimes he pleases before the public; to forbid this is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity”.

So let our courts too lift this veil of censorship, in this case without manifest demonstration of the anticipated injury to allow the media to operate freely, and to shift the burden of responsibility to the media.

On Paul Achar’s Best Communicators 2014

Paul Achar’s article in the Daily Nation on best communicators of 2014 provided an interesting read assessing the communicative effectiveness of the Kenya’s leading public figures last year. The criteria he used included his blog’s tagline: communicate, create, connect expanded into credibility, humility, passion, goodwill, knowledge, great delivery, authentic (sic), likeability and trust.

Classic scholars of rhetoric had long distilled these characteristics into the concept of source credibility and the more recent African studies in contextualizing them found some variability. The variables could form a subject of conversation on another day.

Paul ranks Kenya’s first lady, Ms. Margaret Kenyatta, highly followed by among others Oscar Awards winner Ms. Lupita Nyongo, the Deputy President William Ruto and some nondescript business and religious figures.

Kenya’s president falls in the middle of Paul’s table followed by poor performers, a list in which he includes former Prime Minister Raila Odinga, preacher Victor Kanyari, National Assembly Speaker Justin Muturi, fiction writer Binyavanga Wainaina, and surprisingly Safaricom CEO Bob Collymore.

Of course Mr. Achar is giving his opinion and there is nothing wrong with that. However, while opinion and blog is private, publication in a mass circulating medium authenticates the opinion and situates it in the domain of the public thus inviting debate.

Some speakers are made great by a single speech while others may rely on the stars lining up in their favor.

The Gettysburg speech made Abraham Lincoln. John F. Kennedy, the youngest yet President of the United States killed too soon, still stirs the land of the brave from beyond his grave with his rallying call at his inaugural address: “… my fellow Americans, ask not what your country can do for you–ask what you can do for your country.”

The 2004 Democratic Convention speech defined Barack Obama. “I have a Dream” speech immortalized Martin Luther King Jr., Lupita Nyongo, that petite lass from the lakeside, has the future before her yet her acceptance speech at the Oscars and her delivery at Black Women in Hollywood – a speech that captured the imagination of black women and indeed black people, were no small achievements.

It is hard to forget Julius Nyerere declaring war on Uganda in “Kazi Moja Tu” speech. I must quote him: “Uwezo wa kumpiga tunayo. Sababu ya kumpiga tunayo. Na nia ya kumpiga tunayo”. The speech galvanized the nation; soldiers leaped across River Kagera in confidence and exposed Amin’s bragging. Winston Churchill rallied Britain against the Nazis through his speeches.

This nation has had some impressive communicators too: the wordsmith Kijana Wamalwa, unionists Tom Mboya and Boy Juma Boy, Ronald Ngala, the old horse Jomo Kenyatta and his son is a chip from the old block. Paul has judged the President, and certainly Bob Collymore, rather harshly.

I had the privilege of sitting through several of Mr. Collymore’s public performances this year. In all the instances he dressed for the occasion, was alive to the context, made reference to his immediate surrounding, stayed on the message, maintained eye contact, demonstrated his expertise, had an impressive language command, was polished, and stayed on just long enough to make his point. I could go on. Bob was good.

It is fair to be less harsh on the president. A couple of instances may be worth exploring to more objectively assess his communicative performance.

On the ICC case the president’s message was clear. He was not subjecting the country into a subordinate of the ICC, the ICC prosecutor had no evidence with which to bring him to account, and the case needed to be withdrawn.

It was not just the president staying on his message but the state apparatchik including the Attorney General, the cabinet Secretary for foreign Affairs and other state officials. The message carried the day when Ms Bensouda withdrew the case.

Was it not the president who refocused Kenya’s foreign policy strategy to East African integration and continental collaboration, stuck to it so fiercely that it was the global community that buckled and sat with him at the head of the table in New York the other day? I believe Kenya sits high at the top of the continental table and that is an achievement for a man who is marking his second year in office.

I doubt that there has ever been a time when continental diplomacy revolved around Kenya as it has done in the last year. The president’s other projects, the SGR, security bill, energy generation, power connectivity to schools are largely on course.

But cut Paul some slack. This is not a campaign period. I would reduce the president’s visibility on some occasions, let him dance less, and certainly reign in on the seemingly uncoordinated op-eds and interviews that emerge from a team in his office from time to time.

Recalling World Press Freedom Day

The third of May marks the world press freedom day. This year, same as last year, here in Kenya, we marked it in style. The occasion, this year, was graced by the President, and last year by his predecessor. On May 3, journalists from across the globe pose to consider the challenges they, and their colleagues, endured the previous year. Kenya has, over the last two years, transformed these celebrations from mere blips on the calendar to celebrations recognized at the highest offices in the country.


Last year, the then President Mwai Kibaki pledged the commitment of the Kenya government to conform with Article 34 in the constitution. The Article guarantees freedom of the press. This year, once again, journalists and media scholars from the East African community, and beyond, converged in Nairobi to reflect on the profession.


The celebrations this year included the meeting, in Nairobi, of the executive committee of the World Association of Press Councils and a dinner gala to honor the best of Kenyan journalists. But Kenyan journalists’ satisfaction should only be complete if our predecessors, particularly Mr. Hilary Ngweno who was instrumental in Windhoek in 1991 in initiating the process through which UN General Assembly recognized this day, are satisfied with the efforts made so far.


Etched in the mind of journalists this year as they marked the day were the dangers their colleagues face every day when they report to work. The security of journalists is a matter of concern as many have lost their lives in the line of duty and many more threatened. Somali provides an example across the border where journalists have faced danger and have been killed. Further south, in South Africa, parliament, only earlier in the year, passed the security act which could be used to prosecute anybody who lifts a lid on state secrets.


But when the media fraternity gathers at the KICC to reflect on their trade this year they have to consider how Kenya has performed. While the major threat to journalists in Kenya may not be from the central government, however, sections of over enthusiastic security forces, organized goons, capitalist interests and even organized religion, still pose challenges to reporters.


 Too often, however, journalism looks outside to find the challenges it faces and seldom looks inside. The major event for the media over the last year was coverage of the 2013 elections, and particularly on social media, many have wondered whether the fourth estate played its watchdog role with the keenness required. Some even suggested that the IEBC and other state agencies got away so easily without searching lights being pointed at them to interrogate their performance.


Following the 2007 botched elections many fingers pointed at the media for its role in the heighted tension that resulted. This attention has been intense from institutions that may have been seeking to deflect attention from themselves and their roles. In both Kriegler and Waki reports the role of the media was questioned. Too often commentators seldom interrogated what “media” meant.  Sections of the media and particularly some that broadcast in vernacular deserved the attention they received.


But empirical analysis of the performance of mainstream media in 2007 is probably less harsh.  However, wholesale condemnation of the media drew fear through the entire industry, and while conclusive empirical analysis is yet to be conducted, anecdotally, it may just be that in 2013 the media succumbed to the spiral of silence, to play it safe.


The late German scholar, Elizabeth Noelle-Neuman, did hypothesize many years ago in her concept of spiral of silence that the public, the media included, tends to sense what the dominant ideas in society are and suppress their own opinions in order not to appear to depart from the normative and thus avoid being isolated. The dominant gospel in Kenya, over the last five or so years, has been on peace and the media played along rather well. It is not often that you find the media being praised by those who it should be watching over as has been the case in Kenya.


But now the media fraternity must turn its attention to the challenges that lie ahead. We have a new government with a litany of promises to implement and a diminished, only modest, opposition; will the media step in to keep a scorecard on government performance? On the legislative front have been laws important to the industry which needed to be considered urgently.  The first is the establishment of the body envisaged in Article 34, which should have been in place, by August this year. But equally important are the Freedom of Information and Data Protection Bills that have been on the cooking banner for rather too long. Journalists must not look the other side as interested parties take the lead in fashioning these bills.



Media and Patriotism

Media Round Table Conversation



The 6th Summit in Ethiopia


Role of Media

What really is the role of the press in an emerging democracy like ours? We could limit ourselves to the normative roles that every freshman student of the media touts out: to educate, to entertain and to inform. But obviously the role of the media in a democracy is much more extensive than that.

At this transition stage between the old and the new – when the old constitution has not completely been shelved, and the new constitution is still taking shape both in our lives as well as in our minds there is no gainsaying the educational and informational role of the media. This task requires the media to educate the public on the truths of the constitution and how that constitution affects them, but also to build the capacity of the leaders, particularly the legislators, to enable them have foresight in their effort to formulate laws, and the effort of other sectors of the nation in their efforts to implement the laws.

Even more critical is the watchdog role – to ensure that the executive does not focus too much attention on self-interest and in the process forget to work for the people. At the same time, the media must contribute in marking the legislature to ensure that the house of the people’s representatives remains focused on the people’s agenda. The watchdog role requires the media to point out if the debate in the house is increasingly frivolous, if the house is faced with constant lack of quorum, if the focus of the house is still on the core business of the nation, and if the discussions in the house are substantial.

Obviously, it is no easy task for the media to play these roles in a democracy governed by the rule of law. For too often, in the effort to provide information which in many cases touch on the lives and activities of individuals media must navigate the terrain gingerly to ensure that in the process it does not step on peoples toes.

This puts a huge responsibility on the media to balance between providing information and being sufficiently careful so that in the process it does not open itself to accusations of defamation. There is the age-old question as to whether media can be too brusque as to invade the privacy of others in the process of providing the public with information.

This points to how to treat issues that fall within the private and public domains. How private are public officials? How public are private citizens whose activities affect the public? How private are private citizens whose exploit of the media have made them public enabling them to benefit from this exploitation?

It is generally accepted that public officials serve the public and therefore their activities must be scrutinized more critically due to public interest, while other citizens whose activities impact the public domain in one way or the other may win a right to less public scrutiny, because public interest in their activities need to be tempered with greater circumspection.
In the process of implementing the new constitution, as debates take place in hallowed corridors of power and law, in stadia, in market places and in bars what ought to be the educational, informational and watchdog role of the media in synthesizing some of these debates and bringing them to public domain as a basis for further investigation or simply for caution? If the media have access to information that they have not been able to sufficiently verify, yet in their judgment is of sufficient magnitude to greatly injure the interest of the public how should they balance caution against public interest?
Should the noble objective of objectivity, balance and fairness weigh heavily on the media against the public interest? It was noticeable, in the recent debates in parliament regarding appointments that relate to constitutional offices that too often the media have leaned on the side of caution.

The recent stand off in American politics is instructive. On the one hand are the republican lawmakers with their eternal commitment to tax cuts vowing that they either have their way or it is the highway. The media pretty much took off the gloves and told the republican leadership to think again. Were they being objective or were they siding with one side of the debate? The argument is that because of their network of correspondents, call ins and other channels of communication the media have their fingers on the pulse of the nation more than many a politician. As such they may be in a better position to assess public interest.

And where the media assess the public interest should they be bold enough to take bold position on issues? For instance, should the media maintain objectivity, balance and fairness when in possession of information that individuals with less sterling public record are poised to be hoisted on the nation? Does it not serve the public interest more for media to take positions at such moments and while letting every side have its say – in the process remaining objective, balanced and fair – put forth their position and declare where the public interest should lie.

The media in this country have been accused for playing certain not altogether wholesome roles in our more recent history. Many sectors in the nation are being reformed and beginning to do business differently. Media too must come out in the public interest and start doing business differently.

Experiencing Tweeting with Others

Twitting is an exciting experience. To the extent that it is a real time chart one is able to engage not only with the individuals one is in conversation with but to follow the threads of thought that may come from other sources. These threads of thought could inform the conversation that is ongoing. During my conversation I was, at the same time, following CNN, BBC and of course the football conversation around two EPL Teams, Liverpool and Arsenal. (For those behind news Liverpool beat Chelsea last weekend and Arsenal lost to Newcastle).
Probably the most frustrating part was my inability to actually engage in live conversation at the same speed and pace as others. Previously I had sent an occasional tweet and did not often wait to see it posted. But this time I needed to engage in the conversation and it was frustrating to have time lapse between the conversation – in a sense I felt like I lost the thread of the conversation.
Setting up the tweet and other details was not hard, however, selecting the threads to follow open a wide choice that was slightly confusing. On any given topic there are myriad individuals who are offering opinion. For a rookie it is hard to make a decision as to who to follow, who would have substantive content to share on the tweet. So for the beginning it was simply a matter of guess week. That is why I stayed with the traditional trusted news brands, BBC, CNN and even on football I stayed with the official sites because I think they would most probably be authentic. So overall that was an interesting experience.
Previously I have used tweets for teaching news reporting. I found it particularly useful in writing leads. When students are instructed to limit their leads to a certain number of characters some do not adhere to the limit. But tweeting forces them to do so, so they have to have sharper leads. In spite of the challenges that I faced in today’s experience I still think I gained some ideas that would be applicable in my j-classes.

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