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 A man, facing criminal charges, had gone to court to seek the court to order that his picture not be published in the media.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

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