LG: Media has role in new law process

Before speaking about the role and responsibilities of the media in monitoring and implementing the new Constitution, it is important to situate my opening remarks on - Where We Are Today?

The referendum appears to have restored Kenyans’ confidence in their country. According to a Synovate poll released in August 2010, 76 per cent are optimistic that the economy will improve by August 2011. This is in contrast to only 45 per cent in December 2009.

Kenya suffered its worst humanitarian crisis since independence following the December 2007 hotly-contested presidential election. Inflammatory statements and songs broadcast on vernacular radio stations and at party rallies, text messages, emails, posters and leaflets like kegs of gunpowder spurred nationwide tension.

Protests of the contested results degenerated into widespread violence as decades of economic frustration and ethnic rivalry spiralled out of control.

In the days immediately after the results were announced, gangs of youths blocked Kenya’s main roads and set fire to hundreds of homes of perceived ‘outsiders’. In all, more than 1,200 Kenyans were reported killed, thousands more injured, over 300,000 people displaced and around 42,000 houses and many businesses looted or destroyed.

Agricultural activity was seriously hampered as farmers moved away from their fields, posing long-terms risks for the country’s food security – already threatened by drought and soaring fertiliser prices. The education and health sectors were also compromised by the large-scale displacement of professionals.

We experienced the worst crisis in the history of our nation. That crisis unmasked a profound lack of confidence in political institutions and leaders, and exposed the underlying problems which had plagued the country since independence and which had never been addressed: negative ethnicity, the culture of impunity, land issues, and pervasive poverty.

We are here because we survived. We survived the shock and the tumultuous post election violence that rocked this country to the very precipice of disaster. Kenya survived because of the boldness of our people to stand for peace and tolerance and a unified leadership of a coalition government.

We were also bold to have a second constitution referendum only five years after the first one failed in 2005. And here lies the real story. Kenya made history – Arguably, no other country in Africa could withstand such trauma and come out stronger and ready to do all that it takes to live again.

The constitution represents for many Kenyans a momentous step for institutional stability. It has provided a unique opportunity for self determination and a fearless embrace of our national aspirations and dreams for a better life and a better tomorrow. We have collectively, decentralised the government's power, strengthened checks and balances, enabled democracy to flourish and provided even greater protections for individual rights.

This leads me to another significant point. Research indicates that the media is one the most trusted institutions in Kenya. This scenario is quite unlike many parts of the world where the media ranks very low on the trust quotient.

The Infotrak Harris survey carried out earlier this year revealed that the media was the second most trusted institution after the Kenya National Human Rights Commission. The trust enjoyed by the media in Kenya is both a blessing and a curse.

It is sometimes the result of diligent journalism. But often it is the outcome of a serious erosion of faith in other institutions. The trust in journalism is won almost by default, when ordinary citizens do not trust organs of state.

Consumer Insight’s 2009 Maisha Survey, indicates that the state of mind of a majority of Kenyans was gravitating towards hopelessness:

•Concerns about violence and crime began to rise among 15 to 17 yr olds from 2007 with more than 75% alluding to this fear;

•More than 35% of males and females of 15 years and above conveyed a feeling that they couldn’t do much to change their lives;

•Carefree spirit which was on the rise prior to 2007 was dissipating by 2009 with more than 68% of 15 year olds and above falling within this range;

•More than 62% of the sample group were not satisfied with their standard of living;

•Anxiety was on the rise with 30% – 40% of respondents agreeing that they were always anxious;

•Optimism which had been declining from the highs of 80% of the sample pre-2005 was again on the recovery by 2009;

•Corruption much more than anything else was considered the greatest threat to the country with 55% of the sample agreeing;

•In a nutshell, in 2009, while we were more proud of the country and a majority considered Kenya a better place, there was a significant proportion that would had rather lived in another place.

These numbers paint a grim picture of Kenyans’ state of mind and raise the questions of the need to renew trust across the board.

Clearly, Kenya has travelled a long way in the past two years. The grand coalition, which many commentators expected to last no more than a few months and whose performance was criticized at every turn has proved capable of delivering a new constitution to the people of Kenya. This shows that we have found ways to negotiate and reconcile our differences and also provide united and purposeful leadership for the country at the time it needs it most.

I am confident that the transparent, participative and accountable manner by which we arrived at the new constitution will ensure that it, too, will stand the test of time and provide for Kenyans of this and future generations a stable, prosperous and democratic future.

Two-decades of debating about the need for a new constitutional order played out at various theatres, but the one platform that distilled the discourse and eventually defined and eloquently articulated the tenor of the debate was the media.

In Kenya, the most significant factor that loomed large was the fundamental role that the media played in provoking public participation and debate, promoting state transparency and accountability, maintaining pressure and ultimately catalyzing change.

Four months after its ratification, the discourse has shifted to implementation, which as recent events have demonstrated, is fraught with vicious conflicts. The political elite, the civil society, the religious groups and all other interest groups keep pulling in different directions.

The upshot of all this is that implementing the new Constitution will not be easy and various actors must continuously play their role in exerting pressure, cajoling and persuading the forces to converge together and allow for all the process to take place.

Clearly, this underscores the need for a moderating voice. More specifically to the role of the media; I would say ours is a straightforward job as the far as the constitution is concerned – to manage expectations.

It is pragmatic that Kenya focuses on three parameters regarding the implementation of the new Constitution: administrative appointments, policy reform and legislation. First, administrative appointments and reforms appear to be some of the main quick wins that would help implement the Constitution.

The appointments to such institutions as the Commission on Implementation of the Constitution (CIOC) and the Commission for the Implementation of the Constitution (CIC) would mark the beginning of the implementation process.

Other appointments to constitutional commissions, for example, the Commission on Revenue Allocation, Salaries and Remuneration Commission, among others, are also important in fast tracking and directing the course of the implementation process especially as regards the operationalisation of the administrative bureaucracy.

Related to this are the appointments to the judiciary, which will be an indicator of the course that the Judicature and especially the judicial process will take in securing justice for all. Urgent tasks include the vetting and overhaul of the High Court, Court of Appeal and the Magistrates Courts.

It is the duty of the media to keep monitoring and reminding the political leadership and the nation at large of the urgency of such institutions and most importantly, the perils of not setting them within the prescribed timelines. In this respect, therefore, the media has a duty to highlight the various stages of implementation to ensure compliance with the implementation provisions.

Another important and urgent matter is the restructuring of the civil service proper, the provincial administration as well as the parastatal, local government, security, teaching and electoral bureaucracy. This requires intellectual rigor, intellectual fire power or relevant skills, knowledge, attitudes and values, including integrity and diversity or national cohesion, to energise the new county and national government structures.

The media has the role of explaining the various elements and components of the new constitution. For example, the Constitution provides for the National Assembly and the Senate and 47 regional assemblies. It has national and regional governments and introduces the Supreme Court as the apex unit within the Judiciary. These and among others are new concepts that have not been well understood and needs to be explained.

Second, policy reforms are crucial to provide clear parameters on legislation and administrative reforms. Providing civic education to enlighten the citizens of the stipulations of the new laws would be a critical role. Of particular interest is Section Four – the Bill of Rights – which articulates a very comprehensive and far-reaching regime on personal liberties.

The media will be required to cascade and publicise key pillars of the constitution to Kenyans to allow for wide appropriation of its provisions. In the same vein, such mass education would enable law enforcers like the police to understand their limits and appreciate the transformed social and human rights landscape.

Third, the policy debate must undergird or accompany the legislative and related implementation processes. The upshot of all this is that implementing the new Constitution will not be easy and various actors must continuously play their role in exerting pressure, cajoling and persuading the forces to converge together and allow for all the processes to take place. Clearly, this underscores the need for a moderating voice.

Fourth, the debate on amending the Constitution of Kenya 2010 which has been pursued by some who campaigned against the Constitution raises issues of substance and procedure. Substantive questions include whether to address issues contested over time, for example, since independence in 1963; whether to focus on the issues emanating from the referendum campaigns; or whether there are emerging issues not included in the foregoing.

Regarding procedure, the main approach under Articles 255 to 257 indicates that amendment may be done by Parliament under its constitutional amendment mandate under Article 256 or through a referendum. The referendum formula requires support by at least 25% of the registered voters in each of at least 50% of the counties.

There are many grey areas in the Constitution and hardly do they feature in public debate. When they do, they are muddled in confusion because the interlocutors are not conversant with them. The media will need to anticipate situations and offer scenarios to drive the process forward to avoid conflicts. We will also stimulate debate and shepherd the nation to openly deliberate with a view of reaching consensus and finding lasting solutions.

The roles and responsibilities of the media in the implementation of the new Constitution as I said earlier are about meeting the expectations of the populace. The media must lead Kenyans away from despair and impatience. One way of doing this is to make the point that the implementation of the new constitution will be as messy, drawn out and as contentious as the drive to have it in the first place.

The new Constitution gives Kenyans an opportunity to govern themselves in more modern, enlightened, accountable ways, and to fight back against authoritarianism. It only gives us an opportunity - it doesn’t serve up instant rights for all.

By the same token, it avails to proponents’ opportunities to oppose the implementation process. The stark reality is that in a democracy—those who are opposed to the process could win. Unfortunately, that is the way democracy works.

Secondly, the media must construct a new narrative about who the “enemy” in Kenya is. For a long time, the “enemy” was the person who disagreed with your political views and, sometimes, one from a different ethnic orientation. The media must drive the point that political contention around the new constitution is about “interests”.

The thing about “interests” is that it is a neutral word. It does not carry the connotation of good or bad. It merely denotes expediency, or what a country believes is the best. The media’s role should include growing a new language for political discourse.

Thirdly, the media needs to help the country deepen democracy. Leading scholars like Juan Linz – a leading sociologist from Yale University, have proposed the concept that Voting freely, is only a tiny part of democracy. The real test is not when you achieve a transfer of power from one party to another, but when you achieve a generational change that brings with it the values of the age and, frankly speaking, Kenya is a couple of elections away from that.

Fourthly, and most importantly, is the media role in the devolved counties dispensation. The counties will become the cornerstone of Kenya’s new democracy. If the counties fail and the people become cynical and give up at the grass root level, it will become very difficult to energize national politics and government affairs. Unlike the current scenario where Nairobi is the base for a majority of civil society organisations, national media, the largest universities, embassies just to mention a few, the counties will have none of these.

The direct import of this state of affairs is that counties will most certainly not have the advantage of watchdog organizations in the running of its affairs. This will certainly allow for unprecedented corruption and impunity. Without a doubt, corruption will become the greatest threat to devolution. The media industry must collaborate and pool resources so that they effectively cover all the 47 counties to leverage comprehensive coverage of issues at these localities.

A Media Development Fund is a viable way out in funding such a venture. The fund could subsidize cooperative efforts to set up facilities to cover county governments, but more specifically, target the development of county media and journalists’ capacity and skills.

In conclusion, I want to address a key pillar to the implementation of the constitution - The Kenya National Dialogue and Reconciliation Framework. In doing this I also want to tie them to several private sector concerns that continue to ail businesses and therefore the livelihoods of Kenyans. The question of justice for many Kenyans is still in doubt as no local process has been instituted to deal with cases outside the ambit of the International Criminal Court. Current political and national debate around justice for perpetrators has become increasingly complex and polarized.

Certainly, there is no question that a preferable outcome to the situation in Kenya would have been for Kenya to investigate and prosecute those responsible for the violence. Indeed, prosecutions in Kenya of those who bear the greatest responsibility for the murder and displacement of thousands of Kenyan citizens best fulfils the ICC Statute’s complementarity principle – ensuring that crimes against humanity are prosecuted closest to the victims, and in communities where the effects of these crimes have been felt. There has been wide recommendation by the business community that justice be availed to the most affected communities by setting up a local process to try those that will fall out of the ICC scope. This issue will restore the country and allow for the past wounds to heal.

Closely allied to this concern is that which addresses the humanitarian crisis and promotion of healing. The country must not forget the more than 150,000 Kenyans that are yet to be settled.

The business community in Kenya is concerned that there still are so many displaced people living in makeshift structures. There is need to fast track settlement and allocation of land to allow Kenya’s productive population to return to commerce and nation building.

The window for reforms could close by mid 2011 when campaigns for 2012 pick up. It is important to move things along quite fast in enacting the provisions of the new constitution.

We need the constitutional commissions fast tracked, fully established and funded. There should not be slacking in enhancing fundamental reform of the civil service.

This should to align this process to the constitutional dispensation, and search for new employment opportunities for young people.

The author is the Chief Executive Officer of Nation Media Group.