Two news items on one day give food for thought.
First, the latest World Press Freedom Index published by Reporters Without Borders puts Kenya at position 95, well above Nigeria at 122, India at 136 and Rwanda at 159. Bottom, unsurprisingly, was North Korea at 180. It is depressing to find ourselves so far below Malawi at 70, Botswana at 48 or South Africa at 31. The last is above France, the UK and the USA.
The other news was Justice Chacha Mwita’s decision that section 132 of the Penal Code headed “Undermining authority of public officer” was unconstitutional, in the case of blogger Robert Alai.
Reporters Without Borders mentioned several issues that explained their ranking. One was the exploitation of “attacks by al Shabaab” as grounds for restricting freedom of information. They also mentioned attacks on and threats to journalists from the public and the authorities. They commented that “certain laws criminalise the media and are used to gag them”, citing especially the Security Laws Amendment Act of 2014.
There seem to be two stories going on in Kenya. The first is the attitude of the government and public authorities towards the media, and the freedom of expression.
RESPECT US, OR ELSE ...
One strand of the first story reflects rather outdated conceptions about protecting the dignity of public officers and institutions. If old laws expecting citizens to show great deference were left to gather dust there would be little problem. But they are sometimes dusted off as in Alai’s case. He was charged with expressing words “calculated to bring into contempt, or to excite defiance of or disobedience to, the lawful authority of a public officer”.
“Calculated” here means “likely” (so no need to show any intention on his part, and no need to show anyone did feel contempt for or defy a public officer as the result of his words.)
Worse, some such laws are new. The Contempt of Court Act, 2016, retained an old offence: committing any act that “scandalises or tends to scandalise, or lowers or tends to lower the judicial authority or dignity of the court”. This offence has been abolished in some countries and the English Law Commission said, “Preventing criticism contributes to a public perception that judges are engaged in a cover-up and that there must be something to hide.” Judges, they said, must tolerate genuine criticism, and shrug off abuse. Statements that really encouraged violence against a judge or court should be punished as any encouragement of violence. Not long ago, Parliament tried to extend this relic of a more deferential age to comments on itself. A Bill would have criminalised publishing a “false or scandalous libel on Parliament, its committees or its proceedings” or saying anything “defamatory of Parliament”. The National Assembly passed this, but it does not seem to have been finally enacted.
The RWB mentioned, especially, the 2014 Security Laws Amendment Act. This created new offences including publishing “insulting, threatening, or inciting material or images of dead or injured persons which are likely to cause fear and alarm to the general public or disturb public peace”. The Kenya Information and Communication Act has a provision that probably affects more the individual than the media, but could be used against the media, making it a crime to send a message (eg by SMS) that is “grossly offensive or of an indecent, obscene or menacing character” or a false message intended to cause annoyance, inconvenience or needless anxiety to someone else.
Then there is our moral guardian: The Film Classification Board. This planned, maybe still plans, to extend its reach to broadcasting and online content, applying criteria such as “the standards of morality, decency and propriety that are generally accepted by reasonable members of the community”.
THE SPECTRE OF TERRORISM
Manipulation of fear of terrorism is another strand. The Security Laws Amendment Act created an offence of broadcasting “any information which undermines investigations or security operations relating to terrorism”. Another was publishing or broadcasting photographs of victims of a terrorist attack without the consent of the National Police Service and the victim.
In a sense more sinister is the police mistreatment of journalists. Sometimes, this may be the police attempting to protect themselves, as when they beat up a journalist — and a human rights activist whom he was interviewing about police brutality — in March this year. Article 19 commented that journalists “face serious challenges in the course of their work, with state actors contributing to an increasing number of threats, incidents of harassment and intimidation as well as legal and personal attacks.” This does not seem to be the police acting against the will of the government, rather with its acquiescence.
THE OTHER STORY
This takes us to the other story — which should not be overlooked by organisations such as RWB. First is the resistance of Kenyans: NGOs, the churches, media themselves and ordinary citizens, who organise, protest, reason and litigate to preserve the space for criticism and for freedom of expression generally. We should add national commissions such as the KNCHR and in the past, the CIC.
Second there are the judges. Going back to the Security Laws Amendment Act provisions referred to by RWB, the High Court held that “we can find no rational connection between the limitation on publication contemplated by [the new offences], and the stated object of the legislation, national security and counterterrorism. It is our view, therefore, that [the new offences are] an unjustifiable limitation on freedom of expression and of the media and therefore unconstitutional.” And the new offences were “too vague and imprecise”.
Justice Mumbi Ngugi held last year that the provision in the Information and Communication Act about offensive SMS messages, and false messages intended to cause annoyance, inconvenience or needless anxiety was unconstitutional. Again it is too broad and vague. Law that penalises people must be clear.
The Constitution does not protect, under the “right to freedom of expression”, statements that amount to propaganda for war, incitement to violence and hate speech. But Justice Ngugi said the section of the Act she was concerned with was not about any of these. Nor had the government proved that this section met the requirements of Article 24 of the Constitution. That Article says any limit on rights must be for a purpose justified in a democratic society, and must not limit human rights more than really needed to achieve that purpose.
Recently, Justice Mativo decided that the crime of defamation is unconstitutional. Article 24 was again relevant. The limitation on the important right of freedom of expression would have a “chilling effect”: The possibility of arrest, detention and two years’ imprisonment would deter people from exercising their rights. It is perfectly possible for individuals who complain of damage to their reputations to bring civil actions for damages. So, “it is absolutely unnecessary to criminalise defamatory statements.” This decision is in line with a number of other countries that have done away with defamation as a crime.
And now Justice Mwita has declared section 132 of the Penal Code unconstitutional, for similar reasons to those expressed in earlier cases
Of course, there are limits to the freedom of expression. But it is so fundamental a right, so crucial to democracy, that any limits should be narrowly and clearly defined. But our laws on the topic tend to be full of language that is so vague, it makes it hard for people to know what they may or may not do, and for the courts to decide whether the law has actually been violated. There are far too many laws that limit this right, overlapping and repetitive as well as unclear.
Our rulers seem to have no clear idea of the importance of this right. They should listen to the judges. Otherwise our World Press Freedom ranking will remain low.