President’s advice on media law repressive

Despite the high hopes the public and players in the media industry had that President Uhuru Kenyatta would reject the oppressive Bill on the media that MPs passed, he appears to have bypassed public interest and constitutional requirements in his recommendations.

The memorandum that the President sent to Parliament with his recommendations on how the Kenya Information and Communications (Amendment) Bill, 2013 should be amended, fly in the face of Article 34 of the Constitution which requires that any law on the media should be promotive and not restrictive.

But the President’s recommendations threaten to be more oppressive than the Bill passed by Parliament and reverses the gains made in entrenching media freedom. What’s more, it claws back the agreements reached in the past, which are anchored in law.

On broadcasting, for example, the recommendations, if passed, will overstep the legal provisions which clearly limit the role of the state to licensing and regulating the distribution of airwaves and signals.

But by creating an authority that exercises control over the media, the Bill oversteps its mandate and offends the Constitution.

Considering that four members of the authority’s board are to be appointed by the Cabinet Secretary responsible for communications while the chairman is to be picked by the President, the amendments claw back provisions requiring that regulation be overseen by a body independent of the government.

And since government appointees in such boards carries weight, there is a clear danger that they will act at the behest of their appointing authorities rather than in the public interest.

Headed to the courts

This not only sets a bad precedent but also lays the ground for the government to restrict media freedom contrary to the Constitution.

In all worthy democracies around the world, the media have been allowed to self-regulate. Kenya can neither safeguard nor build on the democratic gains made over the years by reverting to government control of the media.

Since it is highly likely that Parliament, after receiving the memorandum will be inspired by the spirit of Article 34 of the Constitution, it could mean that the matter will be headed to the courts for a constitutional interpretation.

This is a route that could have been avoided through broader consultation, which unfortunately, was sorely lacking in this matter.

But it is a sad reminder that the consultations between the media and the two arms of government — the Executive and the Legislature — have not borne fruit on a matter of such far-reaching public interest.

Going forward, one of the realities that should inform debate on media laws is the recognition that the campaign is not about the interests of the media owners but about democratic principles and the interest of the citizenry in its quest to build a nation founded on justice, good governance and accountability of the leadership.