You’ve gagged us, journalists tell Uhuru

Editors Guild vice-chairman David Ohito (left) and Kenya Correspondents Association chairman Oloo Janak during a past press briefing in Nairobi. PHOTO/FILE

What you need to know:

  • President Kenyatta has asked Parliament to include in the Bill a provision that would empower the Information and Communications Cabinet Secretary to issue policy guidelines to the Communications Authority, the successor of the Communications Commission of Kenya.
  • Critics point out that while President Kenyatta accepts that sections of the Bill are unconstitutional, he does not recommend their deletion, but instead goes ahead to modify the related penalties or to strengthen them.
  • The argument from both the media practitioners and the owners has been that the Communications Authority and related tribunals should regulate the use of frequencies and the broadcast spectrum and the Media Council deal with matters of media ethics and professional standards.

Changes suggested by President Kenyatta to the controversial electronic media Bill as he sent it back to the National Assembly have been denounced as unconstitutional and repressive.

Media interest groups were in uproar Friday as the full implications of amendments proposed by the President in rejecting the Kenya Information and Communications Authority (Amendment) Bill, 2013 became clear.

The President’s changes transfer control of institutions, which can punish journalists and their employers from the National Assembly to the Executive and the Presidency.

The amendments also retain the fines of Sh20 million against media houses earlier proposed by MPs and expands the offences for which media houses can be punished by a government-controlled tribunal.

Referring to a 33-page document handed to MPs on Wednesday evening, journalists, editors and media owners said the President appeared to have gone beyond his powers by prescribing to MPs what they should include in the Bill before he could assent to it rather then rejecting the Bill and stating why.

“It’s quite clear that the Executive and the National Assembly are determined to trample on the Constitution in their desire to control the media,” Media Council of Kenya chairman Joseph Odindo said. “The President’s recommendations are as bad as the Bill passed by Parliament. We are considering the next course of action.”

Protests yesterday came from the Kenya Editors Guild, Kenya Correspondents Association and the Media Council, while the Media Owners Association is preparing to send a formal objection to the President and the National Assembly.

They all make the point that while the new laws were supposed to fulfil the section of the new Constitution, which guarantees media freedom, the involvement of the Cabinet Secretary and the President in making decisions, which would curtail media freedom, has been built into the President’s recommendations to MPs.

President Kenyatta has asked Parliament to include in the Bill a provision that would empower the Information and Communications Cabinet Secretary to issue policy guidelines to the Communications Authority, the successor of the Communications Commission of Kenya.

For instance, the President or the Cabinet secretary control the appointment of members of the Kenya Information and Communications Authority board, which will license broadcast companies and manage use of the airwaves, yet the Constitution requires that the licensing board should be independent.

Previously MPs had stipulated that board members would be vetted and removed by the House.

A person who wants a board member removed would merely need to satisfy the Cabinet Secretary that this is necessary and the President would then appoint a tribunal headed by a judge to investigate the matter.

A similar process applies to the appointment and removal of members of the Communications and Multimedia Tribunal, which has the power to punish media houses and journalists.

Critics point out that while President Kenyatta accepts that sections of the Bill are unconstitutional, he does not recommend their deletion, but instead goes ahead to modify the related penalties or to strengthen them. For example, his memorandum says penal sanctions for breaches of the journalist’s code of ethics may be improper, but then goes ahead to restore the Sh20 million fine against media houses and reduce the fine against individual journalists from one million shillings to Sh500,000.

The journalists pointed out that it was unconstitutional for the President to retain the government-controlled Multimedia Review Tribunal under the Authority — and give it powers to listen to any complaint against the media, including those on the conduct of journalist and what they write — when the Constitution only allows for restrictions regarding licenses and management of the airwaves.

“Many of the prescriptions President Kenyatta has made on the KICA Bill are contrary to the provisions of Article 34 of the Constitution, which basically asks the government to keep off the media,” said Editors’ Guild vice-chairman David Ohito.

“That article also sets media ‘free to determine independently the editorial content of their broadcasts or other communications,”

The argument from both the media practitioners and the owners has been that the Communications Authority and related tribunals should regulate the use of frequencies and the broadcast spectrum and the Media Council deal with matters of media ethics and professional standards.

“The Media Council is the only body we recognise, as professionals, which can deal with issues of content and ethics and enforce professional standards. We don’t want a tribunal. Why do you want to try journalists in a kangaroo court?” Mr Ohito posed in reference to the proposed Multimedia Appeals tribunal, which can listen to complaints concerning “any actions taken, any omission or any decision made” by a journalist, according to the President’s amendment.

Friday, Mr Ohito and Kenya Correspondents Association officials William Janak and Moses Radoli said they would lobby MPs to vote against the memorandum.

“But in the event that MPs endorse the memorandum of President Uhuru Kenyatta, be sure we’ll be in the courts with some of the best lawyers in this country to challenge it on the basis of failing the constitutional muster,” Mr Ohito said.

A committee of the Media Owners Association also met yesterday and is understood to be preparing a protest memorandum to the President and the National Assembly.

Similarly, the Media Council is said to be preparing an official objection to Mr Kenyatta’s amendments, which they say are as unconstitutional as the Bill the National Assembly passed.