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 A man, facing criminal charges, had gone to court to seek the court to order that his picture not be published in the media.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.