KIBAKI SIGNS ANTIMEDIA BILL INTO LAW

DAILY NATION
NAIROBI, KENYA
By ERIC SHIMOLI and BERNARD NAMUNANE
January 2 2009 a

Kibaki ignores protests and assents to Bill that will control radio and television programmes

President Kibaki on Friday set the stage for the Government to control the broadcast media when he rejected appeals by the industry and signed into law the Kenya Communications Amendment Bill.

The President said the Bill, which has been condemned both locally and internationally as an attack on media freedom, was necessary to promote e-commerce.

President Kibaki said: “Indeed, by and large, the regulation of the electronic transactions in Kenya creates room for the pursuit of the ideals of Vision 2030 while regulating the electronic media would promote and safeguard our culture, moral values and nationhood.”

Raid media houses

He said he had noted the concerns raised by media owners and journalists, but argued that their opposition to Section 88 that allows the Government to raid media houses and seize equipment was not part of the new amendments and should be addressed separately.

However, the media have been arguing that the section, part of the old Communications Act, should have been deleted when the law is revised.

With one stroke of the pen, the President agreed with Parliament and put into doubt the freedom enjoyed by media houses to determine editorial content independently.

Media Council of Kenya chairman Wachira Waruru said he was taken aback by the President’s decision to override the concerns of the media industry to sign the offensive Bill into law.

“I am shocked and disappointed by this latest development,” he said.

However, Mr Wachira declared that the media would not allow the Government to infringe on its independence and vowed to fight on until it is changed.

“The media will not relent in its pursuit and protection of its independence and freedom from Government interference,” he said.

Players in the media industry were meeting on Tuesday evening to prepare a comprehensive response to the President’s action and the steps that will be taken to defend freedom of the Press.

Media Institute’s David Makali said he was saddened that the President had ignored the genuine concerns by the media industry and went ahead to assent to the law that enshrines long term negative implications.

“The full implications of this law may not be felt now, but in the long term, when implementation begins,” he said.

Mr Makali called for fresh full scale amendments to the Kenya Communications (Amendment) Act with a view to cushioning the freedom of the media and protection from periodic assaults by those in power.

“The Government should initiate fresh amendments to the whole Kenya Communications Act, including the new law, with a view to revising them to give expression to freedom of speech and media,” he said.

He said that the media would move to court to oppose the constitutionality of the new law and ensure that freedom of the Press is upheld.

Offensive sectionsThe Parliamentary Committee on Communications is going to come up with supplementary amendments on the offensive sections of the signed Bill once Parliament reconvenes, said its chairman, Mr James Rege on Friday.

“In view of the urgency of the matter, we do not have to wait until Parliament reconvenes to deliberate on the same,” he said.

Mr Rege, who was speaking to the Saturday Nation by phone, said the committee would ask the Attorney General to include discussions on the Kenya Communications (amendment) Act 2008 when Parliament would be debating the Freedom of Information Act.

The MP was among leaders who called on President Kibaki not to assent to the Kenya Communications Amendment Bill, 2008 when it was passed by Parliament.

Lands minister James Orengo had also said that ODM was opposed to the Bill and the party would go to court if the President signed it.

He suggested that there was lack of harmony in the sharing of executive authority between President Kibaki and Prime Minister Raila Odinga, who had opposed the Bill.

“It shows a fundamental weakness in the coalition because clearly, ODM had shown reservations towards the Bill through the PM,” said Mr Orengo.

The law retains Government powers to invade a media house and cart away equipment, including the printing press and computers.

It also gives the minister for Information and Communications, together with the Communication Commission of Kenya, enormous powers to control the content aired by the broadcast media, including the type of programmes and the timing.

The new law ignores the existence of a statutory Media Council to regulate the industry, and giving the minster and the CCK powers to vet broadcasts on standards, quality and content.

It also overlooks the existence of a Complaints tribunal under the Media Council and gives duplicate regulatory authority to the CCK.

In the statement issued from State House, Mombasa, President Kibaki said dwelt at length on the impact of the new on the test of the Communictiosn industry, citing regulation of electronic transactions such as the M-PESA and regulations for the Business Processing and Outsourcing (BPO).

The media, however, have not objected to the wider provisions of the law, only on the sections that will allow impact on the independence of the broadcast media.

Cardinal pillar

The president concluded: “I wish to reiterate the commitment of my Government to the ideals of Press Freedom and democracy and assure the media and the public in general that we shall not roll back on the gains we have made in this regard. I however wish to appeal to the media to recognise that freedom must go hand in hand with responsibility.
While Press Freedom is a cardinal pillar of democracy, this is a right that carries with it special duties and responsibilities. Press freedom must therefore be counterbalanced with other freedoms and must at all times take into account the overriding interest and the safety of Kenyans.”

The media fraternity has fought a tough fight challenging the newly assented to Communication law on the grounds that it gave immense powers to the State to control the media and their content. The Kenya Communications (amendment) Bill, 2008, they argued, lacked clarity in some of its provisions opening it to abuse by state actors.

The media ran commentaries and content giving all reasons that the law should be done away with such as the powers granted to the Postal Corporation of Kenya, to open letters without the authority of the courts.

“If your MP steals from the Constituency Development Fund and buys a fleet of limousines, your town newspaper cannot look over his fence and photograph them. If you insult anyone on SMS, you will most certainly go to jail,” a Daily Nation front-page comment a day after the bill sailed through parliament read.The media industry went to the extent of drawing up a petition to President Kibaki giving him reasons to why he should not sign the bill into law. And despite, the Bill unanimously sailing through Parliament, some legislators later came out condemning it as draconian and one that would erode democracy.

Ironically though most of them seemed to be in support of it assent during a later debate where some MPs accused their colleagues of publicly disowning a law that Parliament had passed.

During the discussion, only Prime Minister Raila Odinga and Cabinet ministers Mutula Kilonzo and Anyang’ Nyong’o stood up for the freedom of the media despite spirited attacks by over 10 MPs.

In their petition, media practitioners told the President that they had been assured that the offensive clauses in the Bill would be deleted at the committee stage following meetings with the PM, Vice-President Kalonzo Musyoka and Information minister Samuel Phogisio.

“Discussions on other provisions were still ongoing when the Bill sailed through the third reading very much in its original form,” they added.

They told the President that ambiguities and generalities such as “good taste and standards” in some sections can be used by the Communications Commission of Kenya and, by extension, the Information minister to further control the media.

They also noted that the Bill leaves the appointment of CCK commissioners to the President and the minister, making the process lack independence.

The media practitioners also described the law as clumsy and convoluted as it converges and regulates under one statute diverse matters of telecommunications, postal services, broadcasting, information technologies and cyber crimes.

“The draconian powers to enter media houses, search, seize and take away equipment are unacceptable in a democratic state in this day and age. It is little comfort that declaration of a state of emergency is made a condition,” the petition presented to Mr Odinga on December 15 said.

The media practitioners also told the President that the punitive, harsh and excessive punishments are not commensurate with the offences and are intended as deterrents to journalists and media houses.

Media practitioners have argued that the industry is not against regulation since there already existed the Media Council. The Media Council is all-inclusive, with representatives from the Government, and should be left to deal with issues raised against the media, they noted.

“Executive control of the media and media contents is not the way to go. Public interest will not be served. This is well demonstrated by looking back to the one party state and the sole state controlled media house,” the media practitioners have argued.

The new law gives the CCK and the Information minister powers to determine what Kenyans will watch on television, what they will read in the newspapers and what they will listen to on Radio stations.

The Bill also confers on the minister excessive powers to grant, refuse or cancel broadcasting licences on the basis inter-alia, of non fulfilment of “such other conditions as may be prescribed” by the minister.

The media have also argued against the restriction of cross media ownership arguing that part of the law on “fair competition and equal treatment” is a window for prohibition of Cross Media Ownership. The media argue that this is a matter best left to market forces.

In the December 15 petition, the media told the President to take into account the environment in which the Bill sailed through Parliament, at a time when a majority of the MPs harboured hostility and grudges against the media on account of the principled position taken by the media on their refusal to pay taxes on their allowances.