By Blamuel Njururi. Kenya Confidential Editor-in-Chief, Nairobi June 13, 2018
The concept of constitutionalism binds state organs to exercise power within constitutional confines and boundaries defined in the Constitution. Whenever an institution oversteps its mandate or acts contrary to the laid down order, it is the duty of the media to highlight these transgressions and inform the public
Kenya is a land of contradictions. While Chief Justice David Maraga was advocating need for government institutions to uphold freedom of expression, a court in Thika was having a siesta after gagging the National Assembly from discussing matters to do with controversy-ridden multi-billion-shilling Tatu City project. Another court in Nairobi had gagged East African leading Media house, Nation Media Group, from reporting anything to do with the same project.
The Nation Media Group is part of multi-billion-shilling massive investments by His Highness the Aga Khan which include, hospitals, tourism, education and banking sector undertakings that cannot be compared to a still-birth wishful thinking Tatu City real estate owned by off-shore shell companies in Mauritius. Local investors fear that they could lose their investments, including land, through well orchestrated schemes by project CEO Stephen Jennings whose international reputation leaves a lot to be desired.
The ease and willingness of lady judge at Thika Law Courts to muzzle the National Assembly at the behest of a faulty application to Environment and Land Court to prohibit the National Assembly “whether by itself, through its departmental committees, its employees. servants, members or in any way however, from considering, deliberating, debating and/or making any recommendations on a Petition dated 25th May 2013, presented by Winfred Wanjiku Gitonga…” pending determination of an application by one foreigner, Christopher Barron, raises many unanswered questions.
The order dated February 11th 2018, was based on an application heard in Chambers by Justice L Gicheru of the Environment and Land Court at Thika. However, no such Petition is before the National Assembly. The Speaker of the National Assembly has never tabled such a Petition before the National Assembly nor committed it to any house committee. Why would a court issue a prohibitory order on a non-existent petition?
The other gagging order was made by Lady Justice Njuguna in Nairobi bars Githunguri Members of Parliament Gabriel Kago, Nation Media Group along with some Tatu City shareholders not to publish any information on the troubled project. It was also issued ex parte on June 11th, 2018 following revelations that the giant project is submerged in a crisis with local investors demanding deportation of the project Jennings.
Both judges appear to be inviting the wrath of National Assembly Justin Muturi, who under similar circumstances in April 2015 was categorical that the National Assembly could not honour any “idiotic and unreasonable” orders from the courts”.
A seemingly agitated Muturi explained: “We are asking judges that before they issue their orders, they convince themselves that the same can be effected. They must pass the test of reasonableness… They should ensure that their orders are not in vain. Courts should issue injunctions only when they are convinced that parties seeking the same are at risk of suffering irreparable damages”.
National Assembly will not honour “idiotic” orders
The two orders run counter to the letter and spirit of the 2010 Constitution and the views espoused by the Chief Justice in his epic speech to media professionals below.
SPEECH BY HON. JUSTICE DAVID K. MARAGA, CHIEF JUSTICE AND PRESIDENT OF THE SUPREME COURT OF KENYA DURING THE KENYA EDITORS’ GUILD INAUGURAL PRESS CLUB MEETING AT THE STANLEY HOTEL, ON JUNE 12, 2018
Distinguished Editors and Journalists, Invited Guests, Ladies and Gentlemen.
It is a great honour to be here with you to give the keynote address at this Inaugural Kenya Editors’ Guild Press Club luncheon. As an association whose founding and primary objective is to defend and promote media freedom and independence, I’m happy to learn that the Kenya Editors’ Guild has made a Conscious and collective choice to actively promote democracy and constitutionalism.
The institutional objectives of the Editors’ Guild, which include: monitoring legislation and policies on media freedom and independence, improving the quality of journalism through training and education, and provision of a forum for networking and sharing between professionals in the media industry, among other objectives, render you a formidable organisation for great change. Why do I say so?
These specific objectives seek to enhance the role of the media in promoting and sustaining our developing constitutional democracy. Indeed, these objectives will not only make your association grow but will also, if pursued single-mindedly, contribute to the promotion of the core principles of democracy, constitutionalism and the rule of law in this country.
Today’s theme “The Media, Constitutionalism and Democracy: What options for Kenya?” is an important starting point in terms of reflection on the independence of the media and the link to concepts of democracy and constitutionalism. In a free or growing democracy (such as ours), the media plays an important “watchdog role” on behalf of the people and thus contributes to core constitutional concepts of transparency and accountability.
To explain this further, the concept of constitutionalism binds state organs to exercise power within constitutional confines and boundaries defined in the Constitution. Whenever an institution oversteps its mandate or acts contrary to the laid down order, it is the duty of the media to highlight these transgressions and inform the public. Furthermore, the media should lead in calling such institutions and persons to account in the manner in which they exercise powers bestowed upon them. In this way, the media transforms itself into an important tool for promotion of constitutionalism.
Democracy, constitutionalism and media freedom are inextricably intertwined concepts. Indeed, one of the critical yardsticks for evaluating an effective or struggling democracy is the presence or absence of a vibrant media that can hold the wielders of powers to account. In situations where the media is silenced or controlled, it is highly unlikely such a system can claim any political or constitutional legitimacy.
The concept of democracy generally requires the government, or people in positions of public decision-making to reflect the general will of the people. It is the duty of the media to report on the incongruence between the wishes of the people and actions of leaders.
Thomas Jefferson, one of America’s Founding Fathers and the third President of the United States, illustrated this clearly when he once stated:
“The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter. But I should mean that every man should receive those papers and be capable of reading them.”
Indeed, the experience that journalists go through in carrying out their work demonstrates the important role that media plays to augment democracy. In Kenya and beyond, journalists and reporters risk their lives to bring us stories that usually assist us to change our worldview and bring positive change to the World. For instance, the International Journalists Federation (IJF) Report of 2017, which provides an annual report of the risks that journalists take in the discharge of their mandate, report that 82 journalists and media staff were killed in 2017 in the course of duty.
To quote the report, risks range from “opposition to the media as a crucial pillar in democracy in certain parts of Africa, to the failure of holding accountable those who kill journalists in some European countries, to the reign of terror by organised crime in Latin America, terror attacks in Asia Pacific and the Middle East and Arab World and frontline violence in the latter.”
The report also mentions an instance where the IJF Safety Fund was used to provide financial support to help relocate a Kenyan journalist to a safe location after the journalist received death threats over his articles.
Chief Justice Maraga during Media luncheon
These reports are not exaggerated or far removed from reality. One need not go very far back in our relatively short history to understand and appreciate the importance of media freedom and independence. In the past, Kenyan journalists have faced harassment, intimidation and even assaults as they go about their work. Some have suffered personal harm and even paid the ultimate price in the course of their duty.
I have in mind journalists like Hos Maina, soundman Anthony Macharia, Dan Eldon who were killed in Somalia in the line of duty. I also have in mind Mr. Wallace Gichere who suffered terminal paralysis in 1991 after a fall from a three story building during a police crackdown on perceived dissidents of the then KANU government.
Indeed, while the narratives about the struggle for democratic and political reforms in this country exalt the role of opposition politicians, church leaders, and civil society organisations, the media (and specifically persons who courageously reported on these stories) are not given equal prominence in the mainstream discourses on constitutional and political reforms. Indeed, the media played an important role in highlighting and informing the country about events such as the infamous ethnic clashes and stories of ethnic cleansing during the 1992, 1997 and 2007 violent clashes.
The media, thus, contributed to awareness and later sacrifices that the country undertook in order to ensure peace and political stability. The example of Wallace Gichere is one of the photojournalist-turned social activist who sought to challenge the KANU regimes whose ills affronted basic freedoms including media freedom.
As a result of the experience during the one- party state and pre-2010 patterns of abuse of media freedom, Kenyans sought to entrench media freedom in the 2010 Constitution. Indeed, during the constitutional review process, one of the views that Kenyans expressed to the Constitution of Kenya Review Commission (CKRC) was to provide for “the protection of journalists and press freedom in general”.
The Constitution provides for general and particular provisions whose broad goal is to promote the freedom and independence of the media. First, the Constitution guarantees, under Article 32, the freedom of conscience, religion, belief and opinion. This provision specifically protects the right of a person to hold any opinion or belief.
The Constitution also guarantees freedom of expression. In the relevant parts, the right entails the freedom to seek, receive or impart information or ideas, among other guarantees. This right is limited to wrongs such as, propaganda or war, incitement to violence, or hate speech.
Secondly, freedom of the media is guaranteed under Article 34 (1) of the Constitution and extends to freedom and independence of electronic print and all other types of media. Specifically, the state is prohibited from exercising control over or interference with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium.
The state is also prohibited from penalising any person for any opinion or view or content of any broadcast, publication or dissemination. Licensing and regulatory procedures should not be used as a form of control of the media. Instead, they should be limited to necessary regulation of airwaves.
The Constitution further provides that state-owned media should be free to determine editorial content, should be impartial, and afford fair opportunity for the representation of divergent views or dissenting opinions. In order to guarantee media independence, Parliament has established, through legislation, the Media Council of Kenya, to set media standards and regulate and monitor compliance with standards.
Finally, the Constitution provides for and guarantees every citizen the right of access to information.
These provisions collectively entail a critical bundle of rights that are necessary in order to have a vibrant media that is in consonance with the broader constitutional system that we have set for ourselves as Kenyans. More importantly, they are not mere aspirations that were picked from the air but provisions that are informed by challenges and lived realities of Kenyans who decided to entrench media freedoms in the Constitution.
As I observed earlier, the media contributes to an informed citizenry and, in turn, an informed citizenry is able to play its role in a constitutional democracy. The recognition and entrenchment of media freedom and independence, thus, provides an important basis for consolidating our constitutional democracy.
However, as we sit here today, we need to ask ourselves important questions regarding media freedom and independence:
- How have we faired in terms of protection of the independence of the media?
- Do the very progressive provisions in our Constitution mean anything to our hardworking women and men in the media industry, you ladies and gentlemen here included?
- In other words, have we translated the constitutional protection of media freedoms into reality in this country?
- Equally important question is whether the available media freedom has facilitated our growing democracy to develop.
Kenyans have expressed their common desire (through the Constitution) about where the country should be headed. As an agent of public information, the media has a critical role of facilitating Kenyans to move in the desired direction. Indeed, you should always remember that your work as media professionals is, more than anything, a service to Kenyans.
Thus, the specific question is whether the media freedoms (with all the attendant challenges) have facilitated Kenya and Kenyans to move in this desired direction. This is an important point to ponder and reflect on as the people in charge of editorial content.
The role of shepherding constitutionalism and democracy is, however, not the media’s alone but is a shared one, including the courts of law. As you are all aware, the Judiciary is bestowed with the sacrosanct duty of shepherding and guiding our constitutionalism.
This, of necessity, entails the safeguard and protection of all rights and freedoms in the Bill of Rights, including media freedom and independence. The Judiciary enforces these rights and freedoms in matters that have been brought to the courts of law.
There are a number of cases, recent and past, where the Judiciary has stood for media freedom and independence. In December 2015, the High Court struck down a number of legislative amendments which targeted security related laws. The amendments were in a purported bid to enhance the war on terror. Among the provisions that were included in the amendments was one, which was intended to prohibit broadcast of content or information that would spread terror.
The Coalition for Reform and Democracy (CORD) 5 others v Republic of Kenya and another High Court, Constitutional and Human Rights Division, Petition no. 628 of 2014. However, the court found the wording of the provision too wide and thus infringing on the freedom of expression.
In the case of Robert Alai v Attorney General and another, the petitioner challenged the constitutionality of section 132 of the Penal Code, which prescribes the offence of “undermining authority of a public officer”. The Court declared the provision unconstitutional on grounds that it undermines freedom of expression.
In the earlier case of Geoffrey Andare v Attorney General, the High Court declared section 29 the Kenya Information and Communications Act unconstitutional. The section criminalised the sending, by means Constitutional and Human Rights Division, Petition 174 of 2016. Constitutional and Human Rights Division, Petition 149 of 2015 of a licensed telecommunication system, messages that are “grossly offensive”, “of a menacing character”, or “messages known to be false or meant to cause annoyance”. The Court declared that these were wide phrases which had a potential to infringe on freedom of expression.
It is important to note that in both cases where legislation was struck down, the courts emphasised the need for clarity of legislative text in order to identify, with certainty, what sort of conduct or act is made criminal or offensive.
As you may have experienced in the course of your work, there is a fine balance to be maintained between freedom of expression and criminal liability in the course of publishing or disseminating information for public consumption. It is for this reason that courts have taken the extra caution of ensuring that freedom of expression, when exercised legitimately, is not met with generally worded penal provisions and sanctions.
There are other on-going matters that I am constrained to comment on at this point in time. However, I do reiterate the Judiciary’s commitment to safeguard the rights and freedoms that are necessary for the realisation of media freedom and independence.
Of course, media freedom and independence, as well as the exercise of rights such as freedom of expression come with attendant responsibilities. Indeed, ethical and responsible journalism is indispensable, if this country is to heal from past repression and cultivate a healthy and progressive society.
The constitution and applicable laws call on the media to shun hate speech, incitement to violence, mis- information and distortion of information. In the past, we have seen instances of irresponsible journalism and the consequences of the same.
This challenge has been heightened by social media platforms where unregulated content sometimes causes intended or unintended harm to persons who are targets of hurtful messages and campaigns in those platforms. In many of these cases, little can be done and this, perhaps, is the price we all have to pay for a free and open space for free expression.
However, it is also my sincere hope that forums such as this (the Editors’ Guild) will be a constant point of engagement in terms of building together a media network that builds rather than destroys, and one which informs rather than divides.
As an arm of government engaged in service delivery to this country, we value and count on the media to assist us in informing Wanjiku about the Judiciary’s work and its impact in the lives and livelihoods of the people. Many of the cases that the courts decide on have a significant impact on people’s perceptions of justice are more often than not obtained from media reports.
Indeed, productive linkages between state institutions and the media can help in filling the information gaps in issues that are reported to the public. This is why we have found it necessary to facilitate the media in reporting court proceedings and decisions.
At the Milimani Law Courts we have a facility that makes it easier for journalists to carry out their duties. Besides providing working space with computers and internet, your reporters have access to our officers who facilitate access to any necessary information and documents. Please encourage them to continue using this facility and to freely consult with our officers to ensure that the information they put out there is always accurate.
Beyond provision of space for media within the Judiciary, we need to creatively think of areas of collaboration between the Judiciary and media houses.
For instance, we can work with the Judiciary Training Institute to develop programmes for training of court reporters and to create joint forums where judicial officers and media practitioners can discuss and develop mutually productive strategies, which could, for instance, centre around simplification of court procedures and cases for reporting purposes, among other issues. I challenge all of us to identify common areas of cooperation and to zealously pursue these for the greater good of our country.
Finally, and on a related and current issue, the current effort to stem out the vice of corruption is an important process for all of us. The media plays an important role in informing Kenyans what state institutions (including the Judiciary) are doing to stamp out the vice.
As the Judiciary, we have adopted a zero tolerance to corruption, both internally as an institution, as well corruption matters that are brought to our courts. The Judiciary will play its expected role in the fight against corruption and we count on the cooperation of all the other state agencies involved in fighting corruption. The media too has a role of highlighting this critical process and providing a full, accurate, and fair coverage of the ongoing efforts.
As you go about your work as news editors and media professionals, there are many challenges and obstacles that you will continue to face. You will be vilified, insulted, and even threatened because of the stories and reports you bring to us. Not everyone will appreciate your work and honest effort to live up to the highest standards and ethics of journalism.
However, I urge you to see your work as a service to patriotism and sacrifice to this great country. The fight for media freedoms and other rights has been a long and tortuous journey but we have made progress. A lot of the issues reported and covered by the media these days would have been a pipe dream a decade or two ago. On top of that, we have a very progressive constitutional and democratic space within which we can address our present challenges.
Let me once again thank you most sincerely for inviting me to this function. I pray that the Editors’ Guide achieves the goals you have set for yourselves. Keep up the good work.
Thank you and God bless.
HON. JUSTICE DAVID K. MARAGA, EGH, CHIEF JUSTICE AND PRESIDENT OF THE SUPREME COURT OF KENYA