Long Walk to Freedom

Dawn of Reality in Tanzania From Fetters to Freedom - Kenya From Genocide to Freedom - Rwanda

The Long Walk to

Media Freedom

Contents

The Long Walk to

Media Freedom Acknowledgement From the Executive Director

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Introduction Long Walk to Media Freedom

5-9

Dawn of Reality in Tanzania Media Regulation in Tanzania; Rhetoric versus Reality

11-32

From Fetters to Freedom Media Regulation in Kenya

33-58

From Genocide to Freedom Media Regulation in Rwanda

59-66

Editor: Caleb Atemi Design & Layout: Sanabora Design House Ltd Writers: Muiru Ngugi (Kenya) Publishers: Media Council of Kenya. Contacts: P. O. Box. 43132 - 00100 GPO, Nairobi, Kenya.

Tel: +254 20 273 7058, +254 20 272 5032. Mobile: 0727 735 252, 0721 894 364.

Website: www.mediacouncil.or.ke

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Acknowledgement In many ways, this book is the culmination of the many years of experience gathered by various journalists and researchers, covering everything from the ordinary to the momentous and life changing events in East Africa.

When the Media Council of Kenya embarked on this assignment, almost two years ago, nothing prepared us to the difficulties and challenges of getting hold of “good writers”.

The book was supposed to critically look at the media regulatory framework existing in; Kenya, Uganda, Tanzania, Rwanda and Burundi.

Both the Media Council and the book editor Caleb Atemi made numerous futile attempts to commission writers from Uganda and Burundi in vain.

We eventually decided to settle for Kenya, Rwanda and Tanzania.

I would like to thank the authors of the chapters that form this book; Dr. Bernadin Mfumbusi of Tanzania, Dr. Muiru Ngugi of Kenya and Mr. Luke Karema, of Rwanda.

We are deeply indebted our journalist colleague Caleb Atemi who tirelessly and patiently pursued the writers before editing the book; The Long Walk To Media Freedom.

Haron Mwangi,

Executive Director, Media Council of Kenya

4

Introduction

Long Walk to Media Freedom Introduction The quest for media freedom in East Africa has been long, tedious and treacherous. Many journalists have suffered physically and mentally in their determination to keep the masses informed.

Historically, the struggle for the liberation of the media from the clutches of dictatorship has been intertwined with the fight for democracy.

The significance of media freedom in any society cannot be overemphasised. Media freedom guarantees the flow of critical information to the masses, which is useful for enlightenment, creating awareness and setting constructive agendas.

In spite of this fundamental logic, media freedom remains an elusive concept in Africa and most of the developing world. Every year, journalists are killed, imprisoned, harassed and exiled for their steadfast quest to play the monitorial role on behalf of society.

In some countries, media freedom is restricted not only through sheer thwarting but also via archaic legal obstacles or other unorthodox tactics. In Kenya, for example, the period between independence from Britain in 1963 and the re-introduction of multi-party politics in the early 1990s was characterised by the enactment of a plethora of laws designed to curtail the operations of the media.

Between 1963 and the mid-1990s, legal provisions ranging from ‘sedition’ to ‘inciting public disobedience’ were regularly used to undermine vibrant journalists. The only broadcaster, the State-owned Voice of Kenya (VOK), now Kenya Broadcasting Corporation (KBC), was a government mouthpiece.

Being a state corporation, its management was directly answerable to the minister in charge of information and broadcasting. It was repeatedly abused and used for propaganda and image peddling. Its broadcasts exaggerated the ‘excellence’ of the government of the day, especially in the 1980s and the 1990s, at a time when the country was at its lowest economic and political ebb.

The economy’s growth was negative and the country’s human rights record was horrible. Political prisoners were serving long jail terms without trial and it was common for election victors to be selected by the executive.

The government licensed private broadcasting enterprises with the advent of multi-party politics in the 1990s. Even then, the licence fee was colossal but investors willing and able to invest huge amounts of capital applied and obtained the licences, anyway.

The case of Kenya is not unique. It is representative of a number of African situations. There may be a few explanations to the deliberate resolve of regulatory agencies to interfere with press freedom from time to time. Until recently, a number of African nations were governed by monolithic authoritarian regimes that were totally intolerant to divergent opinions and, military dictatorships littered the political mosaic of several regions around the continent. The media could only exist at the mercy of the regime.

One undisputable fact, though, is that whereas some African states are still struggling to attain considerable liberty, the concept of media freedom is as old as the printing press. Its philosophy traces its roots to such great statesmen as Edmund Burke and John Locke, to great champions of democracy as Thomas Jefferson and Benjamin Franklin, and to memorable thinkers as John Stuart Mill and John Milton.

5

Introduction

Media freedom is regarded in some regions of the world as sacred and is enshrined in national constitutions. Freedom of information is a fundamental right guaranteed under the universal declaration of human rights and the Bill of Rights of democratic regimes. Its merit is based on the firm belief that it is only under a libertarian environment that the human mind can thrive to its full potential and it is only under a liberal media regime that useful information that fosters creativity, education, critical thinking and critical awareness can be guaranteed. The significance of the mass media to both developed and developing nations is reason enough to foster legislation that limits interference of any form with this institution.

The mass media play crucial roles in society. Several scholars have theorised and even conjectured the centrality of the media to every nation but, arguably, nobody has captured this significance better than Dennis McQuail, who, in 1987 described the media using eight metaphors: The Media is a window that enables us to see beyond our immediate and even societal enclaves and surroundings. Through the Media, we can stay informed of global occurrences and events from the comfort of our homes. The Media is an interpreter that explains issues of public interest in a way that even the uneducated can understand and appreciate. The Media is a carrier that transmits information from one region to another and also from one generation to another. The Media is an interactive device that enables the public to ask critical questions regarding issues they do not understand, express their genuine concerns and express their opinions. Through interactive media, the public are able to demand or motivate logical responses that empower them with useful knowledge. The Media are sign posts that give the public direction on how to adjust to the socioeconomic and political eventualities that afflict nations from time to time. The Media are mirrors that reflect to the public the socio-cultural, economic and political realities of the society they live in. The Media are also filters that select what is useful for public knowledge and vice versa.

When the media fulfils all these obligations, it empowers the general public with the kind of knowledge that enables them to make sense of societal occurrences, government policies and decisions. Citizens are then transformed from being passive cheerleaders of national and local events to monitorial citizens. They are capable – through such empowerment – to make informed decisions, such as how to and who to vote for during elections (Fortunato, 2005).

It is worth noting, however, that the fulfilment of all these roles is heavily dependent on several factors and not just a media friendly regulatory regime or media freedom alone. Key among them is the editorial policies of various media enterprises, and the interests that a particular enterprise intends to accomplish. It must be appreciated that not all media enterprises have the public interest at heart. There are actually those with the deliberate intention to churn out destructive content to the public that promote such disastrous eventualities like ethnic bigotry, jingoism, drug culture, cultural imperialism and sexual irresponsibility.

Media freedom cannot be absolute since in every industry there is bound to be rogue practitioners.

There must, therefore, be a regulatory framework that is practically and professionally acceptable to all stakeholders. Such a framework may entail non-restriction of public empowerment while at the same time restricting the conveyance of information that may disrupt public hegemony; nonrestriction of conveying sacred truths while at the same time restricting the promotion of any form of bigotry and non- restriction of information that promotes constructive societal change – even if it challenges those in authority - while at the same time restricting information that threatens nationhood.

In some cases, the media has itself to blame for stringent and illogical regulations that authorities

6

Introduction

are happy and quick to impose. Journalistic irresponsibility is one key underlying cause to such restrictions. Broadcast enterprises that may be desperate to obtain large numbers of viewers and listeners have at times resorted to explicit sexual programmes to attract gullible audiences.

In other instances, ethnic broadcasters have taken advantage of the cultural nexus that they enjoy with their audiences to perpetuate ethnic supremacist sentiments which threaten the very fabric of nationhood. And, sometimes complaints on such excesses originate not from the government but from the public who are often compelled to view such media as threats rather than informers of society.

It is also worth appreciating that media regulation – as a professional concept – is not entirely negative. There is regulation that is motivated by the societal desire to protect society from a media whose intent is to set destructive agenda. Such regulation is useful, not just to societal harmony, but also to stability. Constructive regulation may entail requirements such as the: • Compulsion of all media to preserve a particular reasonable amount of space for local content; • Restriction of information that may bring any constitutional provision into illogical disrepute; • Restriction of information that perpetuates phenomenal religious, ethnic or racial conflicts and promotion of local language programmes.

Such regulations have a constructive purpose. They are intended to: Protect African states from cultural imperialism that may drive our socio-cultural norms, folklore and heritage into extinction; • Protect our fragile nationhood from forces that divide the population along ethnic, religious or racial lines; • Protect the constitution of a country from media hyped illogical challenges that may plunge a country into a constitutional crisis; and • Promote local languages that are also threatened with extinction in the face of media obsession with foreign colonial languages. Only Arab North Africa and Tanzania are safe from linguistic imperialism.

• Promote local innovation and the much-needed local talent to fulfil the quota of local content.

In Kenya, for example, broadcast enterprises are required to reserve at least 40 per cent of their airtime for local content.

Such regulation is also constructive as it is not destructive to public information, public enlightenment or constructive public entertainment. And, though, there has been much debate over its merits, common journalistic logic would encourage it.

Another factor worth appreciating is the manner in which media regulation should be formulated.

On one hand, government agencies, or those in authority for that matter, would normally favour governmental regulation.

Professionals on the other hand have a preference for self-regulation. The first challenge that any kind of regulation would face is the ambiguity with which the media is described or perceived in

7

Introduction

many countries, both developing and developed. Some perceive the media as an art or a talentbased service where anyone blessed with ‘journalistic talent’ can serve. The proponents of this school of thought argue that newscasting, for example, requires someone with communicative confidence, a face for television, good voice quality and projection, and linguistic competence, all of which one can possess without the rigour of going through a school of journalism. Similarly, those with good writing skills can serve as talented writers of very popular columns in mainstream publications without necessarily having a journalism degree or diploma.

Others argue that journalism is the world’s most powerful profession. For this reason, governments should view journalism with the same professional lens with which it regards other professions, such as medicine and law. A requirement, therefore, that only those with journalistic qualifications from reputable institutions of learning qualify to work as full-time journalists, is imperative. Those without journalistic training are encouraged to go back to school or be engaged as contributors. The argument of untrained persons being excellent journalists is a tricky one. For starters, you cannot fail to find someone endowed with communicative and linguistic competence within the ranks of the professionally trained, and, second, the world’s most accomplished broadcasters, Christian Anampour, Oprah Winfrey and Konga Bandu, just to mention but a few, are all professionally trained.

Professionalisation of the media is arguably one of the first steps towards constructive press regulation. The only way the Media would be inclined and socialised to operate professionally is through having professionals dominating the leadership and the service ranks of the industry. And, then, there would be very minimal, if any, need to enact legislation after another to compel them to toe the professionally acceptable line.

Professionals will always revere their professional principles. But, since in many African states, and even in developed countries, the media is dominated by quacks, the product can only, predictably, be unimpressive, hence the need for constant governmental supervision and restrictions. The media is one industry where every other person has an interest. Pastors transform themselves into journalists of sorts, rebranding themselves, televangelists. Failed lawyers appear in newsrooms waving their law degrees and touting their mastery of language as a high profile qualification for broadcasting, while musicians and actors are popular picks for unscrupulous investors who believe that the fans of such celebrities would become instant customers.

The consequences have been phenomenal. There is little regard to the principles of journalistic practice, common journalistic decency and etiquette has been thrown out through the window and, the only motivation for such practitioners is nothing but the fat pay cheques they collect. Any random evaluation into the conduct of such practitioners would reveal that they are the biggest offenders of journalistic professionalism. I am not hereby insinuating that professional journalists do not break professional rules, quite the contrary. I am only asserting that they are more likely to respect and protect the values of their profession than others.

With a professional media, characterised by managers who are experienced and trained in media practice and management, and filled with professional journalists, self regulation becomes not just a reality but easily implementable. This is due to several factors, including the appreciation and understanding of the rules of the game by everyone involved, and the desire to meet the audience expectations. The government would, of course, be involved at the level of professionalisation, ensuring that a professional self-regulatory agency is put in place and is operating in accordance with the law and in conformity with all other government provisions. But, the task of formulating

8

Introduction

the dos and don’ts, monitoring and enforcing conformity will be the sole responsibility of the selfregulatory agency who are sensitive to journalistic practice, and whose only interest is to guarantee that the media operates within an environment that ensures that it lives up to its reputation as the fourth estate, as the great avenue through which mass audiences are enlightened and informed, and the tool for always setting constructive societal agendas.

But, while professionalisation is yet to be achieved in a number of African states, governments should be encouraged to view the media as a tool for facilitating government policies, as opposed to a threat to the status quo. In this regard, governments should consult widely and liaise with media professionals whenever the logical need to enact any piece of legislation on the media arises.

In an environment where self-regulation is yet to be realised, regulation should be a joint venture between government and media professionals.

A final version of regulation that is often ignored, yet has tremendous implications to media freedom, is what I would refer to as ‘the invisible regulators’. These are the gatekeepers within the industry. They range from advertisers to investors, from editors to journalists themselves.

Advertisers, in particular, have a very powerful say in what is published and what is not in private media for obvious reasons. In some cases, very promising journalists have been fired for focusing on stories that are not popular with advertisers. More often than not, media owners also impose their personal interests on editorial policy. East Africa’s largest media house, the Nation Media Group, for instance, have a silent policy that bars the publication or broadcast of any information that depicts Islam in negative light, however true or important such a report may be to the public. It is, therefore, prudent for media stakeholders to consider dealing with the restrictions within their own industry before shifting focus to government regulatory impediments.

In Britain, the British Broadcasting Corporation (BBC) operates within a model that transcends government restrictions and advertisers’ interests. At the risk of sounding neo-colonial, this is perhaps a model that democratic regimes should borrow. First, the BBC is regarded not as a government agency but as a citizens’ broadcaster. The revenue that sustains the BBC does not originate from government donations but from taxes paid by the citizens themselves. Their loyalty, therefore, is to the citizens and not the authorities. Parliament only serves the role of evaluating their conformity to agreed standards of excellence.

The essence of this book is to: • Provide a descriptive and evaluative account of media regulatory regimes in three East African States of Kenya, Tanzania and Rwanda; • Offer comparative analyses of how the media has metamorphosised from the pre-colonial times to the present; and • Underscore the challenges that the media has had to endure in its quest for press freedom and libertarianism.

East Africa is in the process of integrating. Perhaps, the integration of its media may be a crucial step in facilitating and motivating the East African public to be well prepared and compliant with the changes that an integrated East Africa will necessitate to their livelihoods.

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Dawn of Reality in Tanzania

Media Regulation in Tanzania; Rhetoric versus Reality

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Dawn of Reality in Tanzania

Abstract Any discussion of media regulation should address at least three sets of issues: the nature, scope, and objectives of regulation; the intellectual and normative foundations of regulation;1 and the principles and values shaping communication policy. This chapter addresses these issues by looking at the historical evolution of media regulation in Tanzania from its colonial antecedents to the present. Communication regulation attracts attention due to the media’s potential for social, cultural, and political influence.2 Both the 2011 ‘Jasmine Revolution’ in Tunisia and the peoples’ power protests that drove Hosni Mubarak out of power in Egypt were possible because of the authorities’ inability to control or censor social media, such as Twitter and Facebook.

The dictum, ‘information is power’ has acquired new force in the 21st century. Whistle-blowing sites such as Wikileaks are transforming the way information is transmitted. The new media are shifting the balance of power from autocratic regimes to anonymous mobs often with chameleonic, virtual leadership. The question once raised by the Russian dissident Alexander Solzhenitsyn is now more urgent than ever. “The press has become the greatest power within Western countries, more powerful than the legislature, the executive, and the judiciary. One would then like to ask: By what law has it been elected and to whom is it responsible?”3 The media industry, unlike other industries, shape peoples’ views and political choices. It is imperative, therefore, that the policy-makers’ ability to affect the production and flow of ideas be addressed in a policy framework taking into account principles and values of a people. During colonialism, the goal of media regulation was to “tame and control the natives.”4Licensing, registration of newspapers, bond requirements, and sedition provisions in the law ensured that the natives had little access. After independence, the mantra became forging national integration of diverse ethnic, racial, and religious groups in Tanzania. Peace and unity became core values that undergird communication regulation. In the current neo-liberal era, media regulation, at least at the rhetorical level, is driven by the quest for freedom of the media. Diversity, pluralism, the market place of ideas, competition, and social responsibility, among others, are central values. The rhetoric of media freedom, however, is weakened by the State condoned intimidation of journalists, arbitrary banning of the media, and media concentration on few companies often with close ties to the government. This chapter focuses on the discrepancy between the rhetoric of media freedom and the reality of draconian laws and constrictive policies at odd with freedom of the media.

Introduction The basic principle behind media regulation in Tanzania is the constitutional guarantee of freedom of expression.5 Free speech has been central in democratic societies since the Enlightenment in the 18th and 19th centuries. Some say speech fosters individual’s self-fulfilment, as to be human is to communicate. Also free speech is said to help a democratic process by providing information needed for judicious decision-making. So, the ability to communicate beliefs, ideas and views is central to democracy. 6 While until the 20th century governments were seen as the main enemies of media freedom, in the 21st century the corporate control of the media poses unique challenges to media freedom. A historical progression in the relationship between restriction and freedom of 1 This question has been raised by Phillip Napoli. See Phillip M. Napoli. 2003. Foundations of Communications Policy: Principles and Process in the Regulation of Electronic Media. Cresskill, NJ: Hampton Press, Inc 2 For an in-depth treatment of the importance of media regulation. See Phillip M. Napoli. 2003. Foundations of Communications Policy: Principles and Process in the Regulation of Electronic Media. Cresskill, NJ: Hampton Press, Inc p. 2.

3 Alexander Solzhenitsyn cited in Clifford Christians 1989. Self-regulation: A critical role for codes of ethics. Everette E. Dennis, Donald M. Gillmor & Theodore L. Glasser. eds. Media Freedom and Accountability. London: Greenwood Press, page 36 4 The colonial press has been extensively discussed. See Gideon Shoo. The New Press Bill in Tanzania: Implications for National Communications Policy and Press Freedom. Africa Media Review; J. F. Scotton. 1978. Tanganyika’s African Press, 1937-1960: A Nearly Forgotten Pre-Independence Forum. African Studies Review. 21, 1-18; Martin Sturmer. 1998. The Media History of Tanzania. Ndanda, Tanzania: Ndanda Mission Press.

5 The Constitution (1977) Article 18, as amended in 2005 6 Mike Feintuck & Mike Varney. 2006. Media Regulation, Public Interest, and Law. 2nd Ed. Edinburg: Edinburg University Press, p. 9 (Citing Keane 1991)

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Media Regulation in Tanzania; Rhetoric versus Reality

the media shows a trajectory spanning “suppression (by the state and religious authorities) and selective prohibition, to limited permission ‘in the name of liberty and business’, to, in the modern era, prescription in pursuit of education objectives and, finally, to libertarianism in what he refers to as ‘a market-based claim to unhindered freedom of operation.”7 The Constitutional guarantee of freedom of expression, notwithstanding, the media are not necessarily free to access and disseminate information in Tanzania. According to the London based think-tank, Freedom House (2007), the Tanzanian media are only partly free.

The main objective of the largely ad hoc communication policy in 1970s was to promote social egalitarianism, self-reliance, and national integration.8 Radio programming was styled to balance religious, ethnic, and security concerns in the name of peace and order. Then Christians and Muslims (through the Tanzania Episcopal Conference, the Christian Council of Tanzania, and Baraza Kuu la Waislamu Tanzania [Supreme Council of Tanzanian Muslims]) were allotted equal airtime slots each week on Radio Tanzania Dar es Salaam (RTD). The use of vernacular languages in broadcasting was outlawed to promote national unity. And sensitive issues, such as the disastrous forced villagisation of people in 1970s, religious demands or ethnic conflicts were simply not reported. Media freedom, diversity, and market place of ideas remained merely rhetorical tools. The reality was marked by legislative frameworks that hampered the growth and independence of the media.9 The political rhetoric invokes ideals of media freedom. During the first independence decade, Uhuru na Maendeleo (freedom and development), became the dominant slogan. Yet the media regulation fostered control of information access and dissemination. Criminal laws suppressed journalistic activities; media ownership by cronies ensured that only the ruling elites aired their views. And ideological indoctrination of media workers guaranteed that only certain views reach the public sphere.

Then the ruling party, Tanganyika African Union (TANU) organised media seminars to provide guidelines for media operations. Journalists were ruling party cadres sworn to defend the ruling ideology. Some laws enacted allowed preventive detention of citizens in the name of ‘peace and unity’. Others criminalised taking photographs in some areas, talking to people like prisoners, or writing on certain matters said to be ‘government secrets.’ Gideon Shoo, a prominent Tanzanian communication scholar says: “Whereas the colonial powers used the media to control and tame the ‘native’ from resisting and rebelling against oppression, the post-independence African leaders used the media to exercise their power and maintain status quo”.10

Gideon Shoo has a point. The maintenance of the status quo remains the thrust of media regulation.

The government controlled the sole radio station, Radio Tanzania Dar es Salaam (RTD), until 1994 to ensure that only certain views filtered into the public sphere. Slogans such as ‘zidumu fikra za 7 McQuial (1992: 9) cited in Mike Feintuck & Mike Varney. 2006. Media Regulation, Public Interest, and Law. 2nd Ed. Edinburg: Edinburg University Press, p. 9 8 The topic has been treated extensively elsewhere. See Jyotika Ramaprasad. 2001. A profile of journalists in post-independence Tanzania. Gazette, 63(6) 9 See BBC World Trust Service Organization at http://www.bbc.co.uk/worldservice/trust/researchlearning/story/2006/12/061204_ amdi_tanzania.shtml 24/01/2011 10 Gideon Shoo. The New Press Bill in Tanzania: Implications for National Communications Policy and Press Freedom. Africa Media Review, p.3

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Dawn of Reality in Tanzania

mwenyekiti wa chama cha mapinduzi’11 reduced the media to cheerleaders of the ill-fated socialist experiment. So, the much hyped freedom of the media in Tanzania is largely make-believe. The first female Managing Editor of Daily News, Frene Ginwala, was sacked in 1972 for supporting an editorial that criticised President Jaffar Numeiri of Sudan.12 At the time, there was an unspoken agreement among the first generation African leaders not to criticise each other.

Media regulation and performance The principles and values underlying media regulation have been evolving. The quest for control characterised the colonial press, while the need to promote peace, unity and national integration were central during the ujamaa era from 1967 to 1989. After the media liberalisation in the early 1990s, the rhetoric shifted to popular participation marked by the emergence of community media and citizen journalism.

Some scholars have been lampooned by the Tanzania media as muffled drums,13 watchdogs in chains,14 and silent media.15 The metaphors muffled drums, watchdogs in chains, and silent media refer to ‘bad laws’ that hamper media activities and a hostile policy environment that limit the media performance.

Other factors that limit the media performance include widespread corruption, cronyism, selfcensorship and unethical practices, such as sensational reporting and vendetta journalism.

Media regulation in Tanzania has been shaped by two centripetal dynamics. On the one hand, there is the need to check what Alexander Solzhenitsyn has called “the greatest power within Western countries.”16 And on the other there is the need to foster media freedom needed to safeguard liberal democracy.

Tanzania is party to international conventions and agreements that guarantee freedom of expression.

There are both universal and local standards. The Universal Declaration of Human Rights (UDHR) offers world standard and the UNESCO-inspired Windhoek Declaration on Promoting an Independent and Pluralistic African Press (1991) promotes media diversity and pluralism. The African media standards include Article 9 of the African Charter of Human and People’s Rights (1981), Declaration of Principles on Freedom of Expression (the Banjul Declaration 2002), and the African Broadcasting Charter (2001).

According to the Banjul Declaration: “Freedom of expression and information, including the right to seek, receive and impart information and ideas, either orally, in writing or in print, in the form of art, or through any other form of communication, including across frontiers, is a fundamental and inalienable human right and an indispensable component of democracy.”17 11 Long live ideas of the Chairman of the ruling party – Chama cha Mapinduzi 12 Frene Ginwala was accused of publishing a story that criticized Jaffer Nimeiri, the then President of Sudan. See Martin Sturmer. 1998.

The Media History of Tanzania, pp. 126.

13 William Hachten. 1971. Muffled drums: The news media in Africa. Ames: IA: Iowa State University Press 14 Martin Sturmer and Ayubu Rioba. 2001. Watchdog in chains: Media regulations in Tanzania from their colonial beginnings to the era of democratization. Stefan Brune. ed. Neue Medien und Offentlichkeiten, Schriften des Deutschn Ubersee Instituts. Hamburg (at http://www.msimulizi.com.download/16November/01 15 Tegambwege, N. 1990). Who tells the truth in Tanzania? Dar es Salaam: Tausi Publishers.

16 Alexander Solzhenitsyn cited in Clifford Christians 1989. Self-regulation: A critical role for codes of ethics. Everette E. Dennis, Donald M. Gillmor & Theodore L. Glasser. eds. Media freedom and accountability. London: Greenwood Press, page 36 17 http://www1.umn.edu/humanrts/achpr/expressionfreedomdec.html 28/01/2011

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Media Regulation in Tanzania; Rhetoric versus Reality

Yet many laws such as the Anti-Corruption Act, 2007, the Criminal Procedure Act, 1985, the Basic Rights and Duties Enforcement Act, 1994, have negative impact on media activities.

Critics have noted a gap between the liberal language of Africa’s contemporary constitutions and the absence of a political culture that supports values of freedom and diversity.18 From the Gambia to Zimbabwe, from Algeria to Rwanda, media control has become a norm.

A cluster of laws relating to the detention of citizens without due process of law defeats the whole democratisation process in Tanzania.19 Since independence, the quest for unity, peace, and national integration became pretexts to undermine media freedom. Media regulation, understood as a sustained and focussed control exercised over activities that are valued by a community,20 has evolved through three eras: the colonial, the ujamaa, and the neo-liberal. In each epoch, specific principles and values have shaped communication policy and hence media performance.

The colonial legacy Media control is a legacy of colonialism. The oppressive colonial media laws in Tanzania21 date back to the British colonialism. The raison d être for the laws was twofold: to prevent a vibrant African press from emerging and to muffle what African press that existed. The early African press focussed on reporting the grievances of Africans and was seen as subversive by the colonial authorities.22 The press was sensational and partisan.

The Newspaper Ordinance, 1928, had a bond requirement that periodicals published as often as every 14 days deposit a bond,23 making it difficult for Africans to publish. Furthermore, the emergence of an African press in Tanganyika was undermined by educational benchmarks for would-be publishers.

Only people of a certain education cadre could own newspapers. Naturally, this provision meant that the largely illiterate, wealthy Africans could not own newspapers. Other laws criminalised obscenity, sedition and libel.

The Penal Code’s (1945) obscenity provisions made it possible to ban some publications. What constituted an obscene material was not clearly defined, however, making the application of this law arbitrary. And the Newspaper Registration Ordinance, 1952, demanded that periodicals and newspapers had to register and post a libel bond of $1,300.”24 The sum was prohibitive, at the time.

Furthermore, the Penal Code (1955) made sedition a criminal offence. It was defined as an intention to bring into hatred or contempt the administration of justice or Tanganyika’s lawful authority or to raise discontent or dissatisfaction among the country’s inhabitants. The code targeted ‘the African press,’ which had serious implications for indigenous publishers.

The editors of Mwafrika, Kheri Rashidi Bagdellar and Robert Makange, were charged with sedition for publishing an article titled “The price of peace-economy.” Similarly, Julius Nyerere was charged with 18 Chris W. Ogbondah. 2002. Media Laws in Political Transition. In Goran Hyden, Michael Leslie & Folu F. Ogundimu. (eds). Media and Democracy in Africa. London: Transactions Publishers, pp. 59 19 Chris Maina Peter. 1997. Incarcerating the Innocent: Preventive Detention in Tanzania. Human Rights Quarterly 19(1): 113-135 at http://muse.jhu.edu/login?uri=/journals/human_rights_quarterly/v019/19.1peter.html 25/12/2010 20 Mike Feintuck and Mike Varney. 2006. Media Regulation, Public Interest and the Law. Edinburg: Edinburg University Press, p. 202.

21 Shoo (1987, p.1) 22 James F Scotton. 1978. Tanganyika’s African Press, 1937-1960: A Nearly Forgotten Pre-Independence Forum. African Studies Review.

21(1): 3 23 James F Scotton. 1978. Tanganyika’s African Press, 1937-1960: A Nearly Forgotten Pre-Independence Forum. African Studies Review.

21(1): 3 24 James F Scotton. 1978. Tanganyika’s African Press, 1937-1960: A Nearly Forgotten Pre-Independence Forum. African Studies Review.

21(1): 9

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Dawn of Reality in Tanzania

sedition after an article in Sauti ya TANU claimed that the government would have people commit perjury in court to vilify Tanganyika African National Union (TANU).25

Colonial criminal laws The Germans introduced the first media law, the Pressegezets, in 1912. Modelled on a German law of that name, it was intended to regulate media activities in what was then known as the Deutsch East Africa. The law, however, never became operational during the German short-lived rule. The Deutsch East Africa became a British Protectorate, Tanganyika, after the Treaty of Versailles in 1919.

The British proved to be aggressive lawmakers. The Secrecy Ordinance of 1921 classified some information as government secrets. It made it a crime to access and disseminate such information.

The law set the presumption that any official information is secret, creating a culture of secrecy that still lingers. The secrecy provisions found their way into the National Security Act, 1970.

Similarly, internal deportation of people had a major impact on the freedom of the media. The Deportation Ordinance, 1921 allowed deportation of government critics to secret locations. The provisions of this colonial legal oddity were incorporated into the Deportation (Amendment) Act of 1991. Although the law was declared unconstitutional by the High Court, it remains in the books.

And the Newspaper Ordinance, 1928 required licensing of newspapers and bond guarantees from newspaper owners. The basic objective of media regulation during the colonial era was to control the natives by giving them information from the point of view of the colonisers and limit them from having their own publications. Also publications in the 1920s were patterned on racial lines. The Gujarati, the German and the English communities had their own newspapers.

Media regulation after independence: 1961 -1967 Independence, for most people, meant self-determination and freedom from all forms of restrictions.

The colonial administration was synonymous with forced labour, obnoxious taxes, and jails. The slogan “uhuru na maendeleo” (freedom and development), therefore, came to epitomise hopes of a people who craved political emancipation. Soon, it became apparent that independence had only resulted in the transfer of power from White masters to Black ones. The status quo made of what Shoo (1987) called “oppressive laws” remained largely intact. People continued to suffer under restrictive laws. For example, in Zimbabwe, after independence in 1980, President Robert Mugabe continued to renew “the state of emergency every six months in order to restrict opposition viewpoints and other forms of criticisms of the state…”26 Only four years after independence in 1965, students of the University of Dar es Salaam vented the frustration of many when they boycotted classes carrying placards that said, “afadhali mkoloni (better the colonialists)”. The students’ action was treasonable and all were sent back to their home villages, never to attend a university again. Other issues that conspired to shape a constrictive media regulatory framework at the time, include the union between Tanganyika and Zanzibar in 1964 and the army mutiny of 1965. The government resorted to clamping down on the media to stave off dissent. The government sought to forge national integration through careful control and management of national 25 James F Scotton. 1978. Tanganyika’s African Press, 1937-1960: A Nearly Forgotten Pre-Independence Forum. African Studies Review.

21(1): 15 26 Chris W. Ogbondah. 2002. Media Laws in Political Transition. In Goran Hyden, Michael Leslie & Folu F. Ogundimu. (eds). Media and Democracy in Africa. London: Transactions Publishers, pp. 57-58

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discourses. These developments encouraged the government to resist pleas to incorporate a Bill of Rights into the Constitution. It was feared that a Bill of Rights would encourage conflicts between various branches of government.27 The Bill of Rights was finally enshrined in the Constitution in 1984.

Ujamaa era from 1967 to 1989 Communication policy evolved through presidential decrees and TANU directives. The Presidential Charter of 1970 called for strict control of the media. The Charter, issued by President Julius K. Nyerere when nationalising the Tanganyika Standard, then the largest newspaper in the country reads in part: “Today, Tanzania’s new Standard is born. Government has taken the newspaper into public hands, and appointed its own Editor. In the future, there can be no suspicion that this English language newspaper, is serving the interests of foreign private owners. In accordance with the Arusha Declaration, it is clearly impossible for the largest newspaper, in independent Tanzania, to be left indefinitely, in the hands of foreign company. In a country committed to build socialism, it is also impossible for such an influential medium to be left indefinitely, in the control of non-socialist, capitalist owners. The reasons for government’s decision to acquire the “Standard” are thus both nationalistic, and socialistic. We want Tanzanians to have control of this newspaper, and we want those Tanzanians to be responsible to the people as a whole… the watchwords of the new socialist Standard will be: The Socialist equality and dignity of Man.” 28 The Charter outlined a number of principles. One, it called for public ownership of the media as a guarantee that the newspaper would sustain the status quo. Public ownership ultimately proved to be a euphemism for government control of the media. Two, it demanded government appointment of editors, which ensured that editorial policy conformed to the wishes of the ruling party. Three, it promoted “the socialist equality and dignity of man.” The Charter became a de facto information policy for more than two decades.

Use of criminal laws Criminal laws are used extensively to regulate media activities in Tanzania. Some laws criminalise certain behaviours. The Prisons Act, 1967, forbids taking pictures of or communicating with prisoners.

The Anti-Corruption Act, 2007, makes it a crime to report on any corruption allegations under investigation. Other laws pose a threat to movement of people, including journalists, such as the Deportation (Amendment) 1991 Act. Still other laws classify certain information as government secrets (the National Security Act, 1970). These laws have created a culture of self-censorship in the Tanzanian newsrooms.

The Preventive Detention Act, 1962, places major obstacles to individual freedoms. It allows jailing of people simply on suspicions that they are about to commit a crime. The law is open to serious abuse and has been used extensively to check dissent.

Similarly, the Regions and Regional Commissioners Act, 1962, as well as the Districts and District Commissioners Act, 1962, empower Regional and District Commissioners, respectively, to detain 27 Chris M. Peter. 1997. Human Rights in Tanzania: Selected Cases and Materials. Koln: Rüdiger Köppe Verlag 28 Kaarle Nordenstreng and Nkwabi Ngwanakilala. 1987. Tanzania and the New Information Order: A Case Study of Africa’s Second Struggle. Dar es Salaam: TPH, p. 38

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people for up to 48 hours without the due process of law. Often, these criminal laws have been used arbitrarily to target journalists. For example, in 2001, the United Nations office coordinating humanitarian affairs reported that nine journalists had been arrested on the orders of Tarime District Commissioner Pascal Mabiti. The nine were accused of exaggerating reports of clashes between two clans, during which over 400 houses were set on fire and several people killed.29 The Prisons Act, 1967, criminalised communication with prisoners, making sketches or taking their pictures. It made it hard for journalists to investigate ubiquitous abuses in the Tanzanian prisons.

The media cannot investigate prison conditions, which is a matter of public interest. In 2005, Prison wardens at Ukonga Prison, Dar es Salaam, beat up two journalists covering an eviction of Air Tanzania employees from houses owned by the Prisons Department.30 Internal Affairs Minister Omar Mapuri commended the wardens for attacking the journalists.

Another law, the National Security Act, 1970, makes it a crime to sketch, publish or communicate information, which might be useful to a foreign power or prejudicial to the interests of Tanzania or communicating classified information. The law updated the colonial secrecy ordinance. Moreover, the Act criminalises contacts with outside agencies, such as news agencies or trade unions.31 The secrecy provision has created a presumption that all government information is secret. Government officials fear talking to reporters, lest they be accused of leaking sensitive government information. Uhuru, as the political independence is known in Kiswahili, became a farce.

Ideological control of the media The media have always been susceptible to ideological control in Tanzania. In the 1970s, journalists had to be TANU officials to get jobs. Naturally, journalists were expected to toe the party line and not investigate people in power. The then de facto information policy, the Presidential Charter of 1970, goaded the media to pay “a more profound attention to party and government policies.”32 It became a taboo to report on anything that would contradict the ruling party’s position. Media self-censorship became a pernicious norm.

Media seminars In 1970s, the government monitored attentively media activities. TANU organised four media seminars between 1973 and 1983 to indoctrinate media workers with its socialist ideology. The telos of the media activity was said to be “the socialist dignity of man”. Egalitarianism, self-reliance and national integration became core values that shaped media policy.33 The first seminar in Arusha in 1973, recommended, among other things, the formation of a national news agency and the establishment of an institute for training and upgrading journalists.34 The recommendations were implemented when the Tanzania News Agency Act, 1976, created Shihata (the 29 http://ww.irinnews.org/Report.aspx?ReportID=25944 12/01/2011 30 The Prisons Act, 1967 prohibits photographing prisoners, something the journalists had violated.

Police to probe Ukonga evictions at http://www.ipp.co.tz/ipp/guardian/2005/09/14/49501.html 01/11/2008 31 J. Shija. Media Law Reform Project 2 at http://old.developmentgateway.org/download/229554/medialawreform2.pdf 20/01/2004 32 Kaarle Nordenstreng & N. Ng’wanakilala. (1987). Tanzania and the New Information Order: A case study of Africa’s second struggle.

Dar es Salaam: Tanzania Publishing House.

33 Jyotika Ramaprasad. 2001. A profile of journalists in post-independence Tanzania. Gazette, 63(6) 34 Kaarle Nordenstreng & Nkwabi Ng’wanakilala. (1987). Tanzania and the New Information Order: A case study of Africa’s second struggle. Dar es Salaam: Tanzania Publishing House.

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Kiswahili acronym for the Tanzania News Agency). The agency was responsible for news collection and dissemination in the country. And the Tanzania School of Journalism (TSJ) was established in 1974 in Dar es Salaam.

The second seminar in 1975 in Mbeya identified the role of the media in building “a socialist and selfreliant” country. It recommended the banning of imported books, newspapers and films that conflict with the ruling party policies.35 In the period, it was not facts, but the promotion of the status quo that mattered. A suspicious fire that gutted the Bank of Tanzania (BOT) building in 1984 went unreported in the media due to the socalled “national security concerns”, the telltale sign of arson, notwithstanding.36 The government was only interested in the tight control of public opinion, creating a phony sense of national consensus.

Constrictive laws led to the culture of secrecy, which still lingers. In 2007, Finance Minister Zakia Meghji suggested that the Tsh131 billion pilfered through External Payments Arrears (EPA) scam be expensed to the secret government spending. Thanks to social media and citizen journalism, it was discovered that the money actually went to 20 phantom companies closely linked to the government.

Likewise, in 2011, the government refused to reveal the identities of the owners of Dowans Ltd, which was awarded Tsh94 billion for breach of contract. One of the alleged owners, Rostam Aziz, a Member of Parliament and a government insider, accused Dr Wilbroad Slaa – a prominent member of the opposition - of threatening national security for seeking to know the real owners of Dowans Ltd.37 The secrecy provisions in the National Security Act, 1970, have been used to legitimise fraud as well as protect crooks in the name of the national security.

Legal control over the media Three laws have regulated media activities in the 1970s and 1980s. The Newspaper Act, 1976, was the first comprehensive post-independence legislation to address the print media. It granted the authorities powers to, inter alia, prohibit the importation of publications deemed “contrary to the public interest”. The Act also criminalised sedition, defined as bringing into hatred or contempt or to excite disaffection against the lawful authority of the United Republic of the Government thereof… promoting feelings of ill-will and hostility between different categories of the population of the United Republic.38 In July 1999, for example, the government banned Majira newspaper for publishing information on a proposed salary raise for government ministers and Members of Parliament39 that was deemed to be seditious.

The Films and Stage Plays Act, 1976, created a Censorship Board that regulated cinema industry.40 35 Nordenstreng and Nkwabi Ngwanakilala 1987. Tanzania and the New Information Order: A case study of Africa’s second struggle.

Dar es Salaam: Tanzania Publishing House.

36 Other instances include a gold mine accident in 1985 or 1986 that killed 30 people, was mistakenly reported by Tanzania News Agency (SHIHATA). The government, noting that such mining was banned denied the accident happened. Similarly, the police shooting of 20 people at a sugar factory strike in 1988 was turned to a government commission whose results were kept secret. See Paul Grosswiler. 1997. Changing perceptions of press freedom in Tanzania. Festus Eribo and William Jong-Ebot. ed. Press freedom and communication in Africa. Asmara: Africa World Press, pp. 106 37 http://www.jamiiforums.com/jukwaa-la-siasa/100304-rostam-aziz-dr-slaa-hatari-kwa-taifa-3.html 24/01/2011 38 Article 31. – (1) 39 http://www.freemedia.at/cms/ipi/freedom_detail.html?country=/KW0001/KW0006/KW0179/&year=1999 05/01/2008 40 Article 14.2

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The Board sought to safeguard cultural integrity of the country from the Western influences. The legislation was a culmination of a process that begun in 1968 when the Tanzania Film Company (TFC), was created to manage film production. Like most parastatals, TFC was underfunded and mismanaged.

Films produced by the company did not take into account the market needs as they were ideologically motivated and lacked commercial viability. Tanzania Film Company (TFC) owned recording studios and record labels, Sindimba, Kwet, and Uhuru Stars.41 The company failed to survive the liberalisation of the media industry in late 1980s. Meanwhile, in the 1970s, the collection and distribution of news was centralised through the News Agency Act, 1976.42 The Act politicised information collection and distribution by allowing the government to suppress certain news. When some artisan miners were killed in a mining accident in Shinyanga region in the 1980s, Shihata reported the fatal accident.

However, the agency was forced to disown the story the next day under the pretext that the accident could not have happened, as there was a moratorium on artisanal mining43 in the country at the time.

After independence, in 1961, the tendency has been towards centralisation and concentration of the media. Tanzania Broadcasting Company (TBC) was nationalised in 1962 to offer an avenue for nationalistic sentiments. In 1965, TBC became Radio Tanzania Dar es Salaam (RTD), with a monopoly on the airwaves until the mid-1990s. And the vibrant private newspapers of the early 1960s were eliminated. The Tanganyika Standard was nationalised in 1970. Exorbitant prices of newsprint as well as heavy taxes saw the last private newspaper, Ngurumo, folde up in 1975.44 Ngurumo was owned by a Dar es Salaam-based cooperative union.

Birth of opposition parties Tanzania allowed registration of opposition parties in July 1992. It was part of the sub-Saharan African ‘‘abertura” that brought political pluralism after decades of authoritarian single party rule.

Political pluralism required media pluralism. So, numerous newspapers, radio and television stations emerged. Unfortunately, the arrival of multiple media didn’t necessarily imply media diversity. The media ownership patterns in the country continued to ensure that only the ruling elites were heard.

The government continued controlling, own the dominant daily newspaper, Daily News, and set up two television stations – TBC1 and TBC2 – under the auspices of Television ya Taifa (TVT). The political rhetoric continued to stress “the right to free expression of ideas, press freedom issues, and the public’s right to know,”45 even though the legal and policy environment remain hostile to free flow of information.

Media laws in a neo-liberal context The Tanzanian media sector is vibrant. As of May, 2010, there were 710 newspapers and journals, 59 radio stations, and 28 television stations. The vibrancy, however, belies teeming draconian laws.

The 1991 Nyalali Commission identified 40 bad laws, which it recommended for expunging from the books.46 Many laws have been enacted since mid-1990s to keep up with both the technological changes in the communication sector (media convergence) and changes in the political arena, which have ushered in political pluralism.

The airwaves were liberalised for the first time by the Broadcasting Act, 1993. The first private radio station, Radio One Stereo FM, began broadcasting in Dar es Salaam in 1994. Growth in the electronic 41 http://www.kentanzavinyl.com/Site/TANZANIAN_FILM_COMPANY.html 29/01/2011 42 Hadji Konde. 1984. Press Freedom in Tanzania. Arusha: EAPL, pp. 78 43 Paul Grösswiler. 1997. Changing perceptions of press freedom in Tanzania. Festus Eribo and William Jong-Ebot. ed. Press freedom and communication in Africa. Asmara: Africa World Press.

44 Dennis L. Wilcox. 1975. Mass Media in Black Africa: Philosophy and Control. Praeger 45 Richard Tamba M’Bayo. 2005. Liberia, Rwanda & Sierra Leone: The public face of public violence. Ecquid Novi. 26(1): 22.

46 Furore over bad laws at http://www.eastafricapress.net/index.php?option=com_content&view=article&id=448:furore-over-badlaws&catid=114:media-law 24/01/2011

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media has since been phenomenal. From one state-controlled shortwave radio station in 1993, there are now almost 60. An estimated 81.5 per cent of Tanzanians depend on radio for news and information.

It remains the dominant medium in the rural areas where 80 per cent of the population lives.47 Among other things, the Broadcasting Act, 1993, allows censorship and control of the broadcast content for national security.48 It caters for both substantive regulation, namely, restriction on certain content as well as limiting the area in which a radio can broadcast. The broadcasting companies must have at least 51 per cent shareholding by a citizen or citizens of the United Republic of Tanzania.

A 2004 study by British Broadcasting Company (BBC) World Trust titled “African Media Initiatives” found out that: • • •

About 76 per cent of urban households and 52 per cent of rural households own a radio set.

An estimated 95 per cent of the population listens to the radio at least once a week.

The leading radio stations are owned and managed by Tanzanians.

Likewise, television stations have increased from one privately owned Independent Television (ITV) station in 1994, to more than 20 in 2010. The rural audiences, however, remain excluded from accessing television, largely because of lack of electricity. Only an estimated 10 per cent of the country’s 40 million people have access to electricity.

Meanwhile, the Newspaper (Amendment) Act, 1994, largely retained constrictive provisions in the laws, some dating back to colonial times. The Act calls for registration of newspapers and grants arbitrary powers to the registrar of newspapers to deregister publications.

A decade after the liberalisation of airwaves, the Tanzania Communications Regulatory Authority Act, 2003, sought to create a converged regulatory framework. Radio, television and telephony are addressed under a single framework. The Tanzania Communications Regulatory Authority addresses a number of issues: quality of service, consumer protection, content, licensing, and importation and distribution,49 among other. The TCRA motto “creating a level playing field”, is largely at variance with media concentration in the hands few corporate titans.

Communication policy The first formal attempt to come up with a communication policy was made in 2003. The Information and Broadcasting Policy (2003) encourages greater private sector participation in the media. It calls for internal self-policing of the media through various quality control mechanisms, such as codes of ethics and journalistic associations. That has still not deterred the government from enacting laws over the last two decades that criminalise some activities pertaining to journalism.

The major policy challenge is to address new media and social media which defy both censorship and control. Increasingly, people resort to online resources to post or access information which the government would rather hide. The identity of owners of Dowans Ltd that was involved in a fraudulent power generation contract in January 2011 came to light through the work of bloggers.

47 L. X. Mbunda.2004. Legal and regulatory framework of broadcasting in Tanzania. Eastern Africa Law Review, 31–34, 1–15.

48 Ibid 49 The Tanzania Communications (Importation and Distribution) Regulations 2005

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Draconian laws Laws limiting information flow come in many forms. The Tanzania Revenue Authority Act, 1995, for example, makes it a crime for revenue authority officers to divulge official information. It has become very difficult to investigate companies or individuals suspected of tax evasion or other fraudulent activities.

Similarly, the Antic-Corruption Act, 2007, forbids the media coverage of corruption cases which are under investigation by the anti-corruption watchdog, the Prevention and Combating of Corruption Bureau (PCCB). The law largely puts high-level corruption beyond the media attention. The irony of the Tanzanian lawmaking is its tendency to make laws that protect crooks. An award-winning television journalist, Jerry Muro, was framed by the police after he surreptitiously took pictures of traffic police officers extorting bribes from truck drivers.50

Liberal rhetoric vs illiberal media bills Since the mid-1990s the semantics of sunshine law has seeped into popular discourse. Media professionals, media standards, and freedom of information have formed part of the everyday language. Yet, like most African countries, Tanzania repackaged ‘old bad laws’ in new “sun shine” language to suit democratic imperatives of the 1990s. The Media Professionals Bill, 1993, the Freedom of Information Bill, 2006, and the Media Standard Bill, 2007, are some of the liberal-sounding bills with draconian content.

The Media Professionals’ Bill, 1993, inter alia, sought to create a statutory media council. The council would have been empowered to register journalists, shut down newspapers or jail reporters without the right to legal representation.51 The Bill conferred too much power on the minister to make decisions on behalf of the Council.

Another controversial piece of law was the Freedom of Information Bill, 2006, which sought to consolidate “everything related to media, defamation, sedition, freedom of information and media regulation.”52 Furthermore, for the stakeholders, the Bill was drafted in a more difficult and complicated language for ordinary citizens to understand. Its provisions restrict more information than what is guaranteed for public access. 53 The Media Standards Board it sought to establish would have made the independent Media Council of Tanzania redundant. The Bill resuscitated the colonial era requirement for newspaper owners to post a cash bond prior to publication.54 The Media Standard Bill, 2007, sought licensing of media workers, registration of newspapers, limiting access to certain information, and provides an environment in which the media cannot operate freely.

All were resisted by stakeholders for not allowing free access to information and free dissemination of information.

50 Julius Bwahama. 2011. Muro solicits 10/= million bribe at http://www.dailynews.co.tz/home/?n=16719 18/02/2011 51 Aili M. Tripp. 2000. Political Reform in Tanzania: The Struggle for Associational Autonomy. Comparative Politics. Vol. 32(2): 191-214 52 MISA-Tanzania Chapter 14th December, 2006 53 MISA-Tanzania Chapter 14th December, 2006 54 MISA-Tanzania Chapter 14th December, 2006

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Salient challenges Challenges facing the Tanzanian media industry are many. The rapidly changing technologies that threaten to render the traditional media like newspapers and radio irrelevant tops the list. The regulatory framework remains tailored towards the traditional media, although the importance of the new media is growing. The transnational character of the new media technologies offers special regulatory challenges. Whistle blowing sites and blogs have embarrassed the government obsessed with secrecy The media, are expected “to water the roots of democracy” by offering a market place of ideas.

But this would only be possible if the media were diverse and plural. The media are hampered by the existing media ownership patterns. The state remains a major player in the media sector. The oldest English daily newspaper in the country, Daily News is government-owned. Also the government publishes a Kiswahili tabloid, Habari Leo. The government-owned newspapers lack editorial autonomy as the Managing Editor is a presidential appointee.

And through the TBC, the government also owns one short-wave and two FM radio stations, and two TV stations. RTD transmits countrywide. Two FM stations, Parapanda (trumpet) FM and City FM Radio, broadcast in Dar es Salaam, and in Zanzibar there is Spice FM. The government’s TV stations are TVT, based in the mainland Tanzania, and Zanzibar Television in Zanzibar.

A two-fold concentration of media offers yet another challenge. The media are concentrated in urban centres, where only 20 per cent of the population lives. The coverage of rural areas in the media remains episodic mainly during the time of catastrophes. Media and news are concentrated in the hands of a few companies with close political ties with the government. This means alternative voices have little chance of filtering into the public sphere. The IPP Media Group, Business Times Ltd, Mwananchi Communications and New Habari Corp control more than 70 per cent of the major media outlets. The IPP group controls more than 10 newspapers. It owns specialised financial and sports publications.

Through a holding company, Media Solutions, Guardian controls two more publications, This Day and Kulikoni, both published in Dar es Salaam. IPP also owns TV stations: East African Television which is a pan-East African channel and Independent Television (ITV), Tanzania’s pioneering TV. Radio One FM Stereo and East African Radio broadcasting from Dar es Salaam belong to this stable (Mfumbusa 2010). This state of cross media ownership does not portend well for media freedom. The watchdog function is hard to fulfil in Tanzania as the oft-quoted metaphor “the watchdog in chains” shows.

Working conditions There is consensus that the working conditions in the Tanzanian media industry are bad.55 Journalists receive very little pay compared with other professionals with similar qualifications. Journalists do not often have proper contracts, making them vulnerable to the whims of their employers. It is not uncommon for reporters to depend wholly on government ministers and officials for transport and food while on official assignments. Naturally, this undermines their autonomy and objectivity.

And most reporters operate as freelancers. Some receive a retainer to report for a specific media house, 55 Ayoub Rioba. 2008. Media in Tanzania’s Transition to Multiparty Democracy: An Assessment of Policy and Ethical Issues. Licentiate Thesis University of Tampere; Bernadin Mfumbusa. 2006. Media accountability challenges in sub-Saharan Africa: the limits of selfregulation in Tanzanian newsrooms. Jacob Srampical et al. eds. Cross Connections: Interdisciplinary communication studies at the Gregorian University. Rome:EPUG; Kilimwiko, Lawrence & Joseph Mapunda. 1998. A Handbook on the State of the Media in Tanzania.

Nairobi: Friedrick Ebert Stiftung

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others survive by selling news or feature articles to any willing media house, which pay between Tsh2000 ($1) to Tsh6,000 ($ 3) for every piece, barely enough to cover the costs of writing and transmission. Sometimes it takes up to six months for reporters to be paid for the articles published.56 Moreover, critical editors and reporters have a hard time holding onto a job. The IPP Media, the largest in the country, laid off more than 100 workers in 2008 at short notice. The impunity with which the owner acted sent shockwaves through the ranks of cowed employees.57 Similarly, the Managing Director of Television ya Taifa (TVT), Tido Mhando, was sacked after the November 2010 elections for airing opposition voices. Naturally, self-censorship is widespread in the media as a self-preservation tool.

Opportunities for growth The Tanzanian media industry has robust opportunities for growth. The existing publications, an estimated 700 plus newspapers and journals, appear to be many. Yet the number belies the fact that newspapers remain an urban phenomenon. So there is a huge potential for growth in rural areas.

A recent study, titled “Digital Life” conducted to establish people’s online behaviour and activities in East Africa found that only 672,000 Tanzanians in a population of 42 million (1.6 per cent) have had an online experience.58 Both Uganda and Kenya have registered 10 per cent of access to the Internet among their citizens.

Should the broadband reach be broadened in the near future, the social media such as Facebook, Youtube, and Twitter, among others, are likely to ease communication in the rural areas. Blogs are already revolutionising information access. The democratisation of information collection and dissemination has made it possible to expose major scandals, such as Dowans Ltd, involved in a multi-million fraudulent power generation scam and the Bank of Tanzania - Twin Tower scam, which siphoned billions of taxpayer’s money.

The use of mobile platforms has the potential of transforming information collection and distribution in the rural areas. The mobile networks cover the whole country. Community media offers a potential for people in the interior of the country. The community media play a more effective watchdog function in the country. It also has development potential.

Case Studies Three case studies cited here represent important moments in the evolution of media regulation in Tanzania. Case studies one and two come from the newspaper industry which has been dominant in 1970s and 1980s.

Case Study 1 Banning of the African Baraza Tanzania had a peaceful transition of power from the founding President Julius Nyerere to Ali Hassan Mwinyi in 1985. Mr Mwinyi introduced economic reforms. Some private newspapers, such as Business Times and the African Baraza, appeared. However, the first copies of the African Baraza were confiscated in 1987. The inaugural edition had carried an editorial suggesting that Mwalimu Nyerere’s regime was more corrupt than that of 56 The working conditions have discussed extensively by Ayub Rioba and Kilimwiko.

57 Mary Gwera. 2008. Mengi meets ‘Guardian’ retrenched workers. Daily News. Tuesday, October 21, 2008.

58 Michael Ouma. 2011. With 4m users, Kenya leads EA in access to Internet services. The East African, Jan 24-30, 2011, p. 38.

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his successor. 59 The article, appearing at a time it was an anathema to criticise what was known as “wazee wa chama” (party elders), was labeled seditious. It is a case Okigbo (1989) called the cult of elders prevalent in Africa interfering with media performance.

The banning of African Baraza typifies the prevalent mentality at the time which didn’t allow criticism of people in power.

Case Study 2 A Journalist and national security A freelance journalist, Adam Mwaibabile, was accused of possessing government secrets in violation of the National Security Act, 1970, in 1997. The alleged secrets were actually “a memorandum” from Ruvuma Regional Commissioner Nicholaus Banduka to his Regional Trades Officer, seeking to block the renewal of Mr Mwaibabile licence to run a stationary store. Mwaibabile was handed a year’s jail term for possessing the memo. Mr Banduka’s actions were actually a vendetta provoked by Mr Mwaibabile’s “writings on corrupt politicians and administrators”60 in Ruvuma region. Later, the High Court held that the directive (memo) was not a government document as defined in the Act on the grounds that it is not the duty of the government to deny business licences to citizens (Adam Mwaibabile v. Republic (High Court of Tanzania, 1997).61 Case Study 3 Banning of Radio SAUT FM Radio SAUT FM 96.1 was banned in October, 2010, under the pretext that it was interfering with aircraft communications at Mwanza Airport. The radio, owned by St Augustine University of Tanzania (SAUT) in Mwanza, was established in 1998 for training purposes.

It was one of three radio stations in Mwanza town. The other two are owned by tycoons with close connection to the ruling Chama cha Mapinduzi (CCM).

SAUT FM had a popular call-in programme that involved panel discussions with members of political parties in the run up to October, 2010, General Election. At the time, CCM had banned its cadres from taking part in such debates. However, it became apparent CCM was losing the PR battle with the opposition. CCM’s government resorted to subterfuge.

The Tanzania Communications Regulatory Authority (TCRA) asked SAUT FM to stop broadcasting for frequency interference. The station was ordered to install special equipment that would rectify the interferences. The equipment was duly ordered. But when the station’s director arrived at the Mwanza airport to pick it up, the equipment had gone missing. The equipment re-appeared just days before the elections – apparently it was confiscated by security agents for unspecified reasons.

The radio was allowed to go on air three days before the election were held on October 27, 2010. One wonders why TCRA allowed SAUT FM to start broadcasting before the problem had been addressed?

59 See Paul Grosswiler. 1987.Changing Perceptions of Press Freedom in Tanzania. In Festus Eribo & William Jong-Ebot. Eds. Press Freedom and Communication in Africa. Asmara, Eritrea: Africa World Press, Inc. pp. 108 60 TI Newsletter, June 1997 at http://ww1.transparency.org/newsletters/97.2/june97-6.html 13/07/2006 61 D. William Ringia & Stephen J. Potter. 1999. Acess to Environmental Information in Tanzania at http://leat.or.tz/publications/access. to.information/access.to.information.doc 13/07/2006

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Conclusion Scholars have noted a gap between declared policy (encouraging pluralism and diversity) and the reality of constrictive media laws in the African countries.62 Most African leaders wax lyrical about media freedom, yet the reality is different. The gap is especially evident in Tanzania. People are often effusive about the state of media freedom, simply because there is a constitutional guarantee to freedom of expression.

Who, then, regulates the media in Tanzania? Why media regulation? What authority regulates media activities?63 The media are regulated by the government largely to safeguard status quo. Laws, policies, and directives are intended to promote “peace and unity” rather than encourage information access or dissemination. Whenever the media report malfeasance in high offices, there is a clamp down in the name of peace.

As noted earlier, the regulatory regime has been evolving since independence. And three questions can be answered differently in different epochs.

In the 1970s during the single-party democracy, the State was the main agent of regulation through ideological control, the use of criminal laws and media legislations, often styled to curtail media freedom. Media regulation during this period was intended to promote peace, unity, and national integration considered to be core values.

After the adoption of multi-party in 1992, the State intervention remained strong. However, media stakeholders increasingly sought to encourage self-regulation in a bid to professionalise the industry.

A non-statutory Media Council of Tanzania (MCT) was set up in 1995. Many journalistic organisations and training institutions emerged. So regulation was both stakeholders inspired as well as marked by the government intervention.

The legacy of secrecy laws undermines personal freedoms of Tanzanians including the freedom of expression.

The political culture based on the myth of unity and peace. A moratorium on the Kadhi courts debates was imposed under the pretext that it was bad for the unity of the country. Hot button words like udini, ukabila are used to scare away people from discussing matters of national import. Media regulation in Tanzania has fostered media control rather than encourage access to information.

62 Nordenstreng (1987, p. 32) 63 Mike Feintuck and Mike Varney. 2006. Media Regulation, Public Interest and the Law. Edinburg: Edinburg University Press, p. 202.

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References Christians, C. 1989. Self-regulation: A critical role for codes of ethics. Everette E. Dennis, Donald M. Gillmor & Theodore L. Glasser. eds. Media freedom and accountability. London: Greenwood Press Diamond, Larry. 1999. Introduction. In L. Diamond & M. F. Plattner (Eds.), Democratization in Africa (pp. ix–xxvi). Baltimore: Johns Hopkins University Press.

Grösswiler, Paul. 1997. Changing perceptions of press freedom in Tanzania. Festus Eribo and William Jong-Ebot. ed. Press freedom and communication in Africa. Asmara: Africa World Press.

Hachten, William. 1971. Muffled drums: The news media in Africa. Ames: IA: Iowa State University Press Hamelink, C. J. 1988. Cultural Autonomy in Global Communications: Planning National Information Policy. London: Centre for the Study of Communication and Culture.

Kasoma, F. 1997. The Independent Press and Policies in Africa. Gazette. 59(4-5): 296 Lush, D. 1998. The role of the African media in the promotion of democracy and human rights. In: S. Kayizzi-Mungerwa, A.O. Olukushi, and L. Wohlgemuth (eds). Towards a New Partership with Africa: Challenges and Opportunities. Uppsala: Nordiska Afrikaininstitute, pp 50 cited in: Franci B. Nyamnjoh. 2005. Africa’s Media: Democracy and the Politics of Belonging. London: Zed Press, M’Bayo, R. T. 2005. Liberia, Rwanda & Sierra Leone: The public face of public violence. Ecquid Novi.

26(1): 22.

Maddox, G. H & J. L. Giblin. Ed. 2005. In Search of a Nation: Histories of Authority and Dissidence in Tanzania. Dar es Salaam: Kapsal Educational Publishers Mbunda, L. X. (2004). Legal and regulatory framework of broadcasting in Tanzania. Eastern Africa Law Review, 31–34, 1–15.

Mbunda, L. X. 2004. Legal and regulatory framework of broadcasting in Tanzania. Eastern Africa Law Review. 31–34, 1–15.

Mfumbusa, B. 2010. Tanzania’s Journalism Education At Crossroads: Western Models, Local Realities.

In: Beate Josephi (Ed). Journalism Education in Challenging Environment. New York: Peter Lang Napoli, P. M. 2003. Foundations of Communications Policy: Principles and Process in the Regulation of Electronic Media. Cresskill, NJ: Hampton Press, Inc Nordenstreng, K. & N. Ng’wanakilala. 1987. Tanzania and the New Information Order: A case study of Africa’s second struggle. Dar es Salaam: Tanzania Publishing House.

Nordenstreng, K. 2007. Myths about Press Freedom. Brazilian Journalism Research: Journalism Theory, Research and Criticism. 3(1):2-3 Nyamnjoh, F. B. 2005. Africa’s Media: Democracy and the Politics of Belonging. London: Zed Press Ogbondah, C. W. 2002. Media Laws in Political Transition. In Goran Hyden, Michael Leslie & Folu F. Ogundimu. (eds). Media and Democracy in Africa. London: Transactions Publishers Ogbondah, C. W. 2002. Media Laws in Political Transition. In Goran Hyden, Michael Leslie & Folu F. Ogundimu. (eds). Media and Democracy in Africa. London: Transactions Publishers OKIGBO, Charles. 1989. Communication ethics and social change: A Nigerian perspective. Thomas W. Cooper, Clifford G. Christians, Frances F. Plude and Robert A. White. eds. Communication ethics and global change. London: Longman.

Porto, M. 2005. The principle of diversity in journalism. Brazilian Journalism Research. 1(1): 135.

Ramaprasad, J. 2001. A profile of journalists in post-independence Tanzania. Gazette, 63(6); Des Freedman. 2008. The Politics of Media Policy. Cambridge: Polity Press Ringia, D. W. & S. J. Potter. 1999. Access to Environmental Information in Tanzania at http://leat.or.tz/ publications/access.to.information/access.to.information.doc 13/07/2006

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Ruijter, J. M. 1989. State and Media in Africa – A Quarrelsome though Faithful Marriage. Gazette. 44(1) Scotton, J. F. 1975. Kenya’s maligned African press: Time for a reassessment. Journalism Quarterly. 52, 30-36 Scotton, J. F. 1978. Tanganyika’s African Press, 1937-1960: A Nearly Forgotten Pre-Independence Forum. African Studies Review. 21, 1-18.

STURMER, Martin and Ayubu Rioba. 2001. Watchdog in chains: Media regulations in Tanzania from their colonial beginnings to the era of democratization. Stefan Brune. ed. Neue Medien und Offentlichkeiten, Schriften des Deutschn Ubersee Instituts. Hamburg (at http://www.msimulizi. com.download/16November/01 Sturmer, Martin. 1998. The media history of Tanzania. Ndanda, Tanzania: Ndanda Mission Press.

Tegambwege, N. (1990). Who tells the truth in Tanzania? Dar es Salaam: Tausi Publishers.

Tripp, A. M. 2000. Political Reform in Tanzania: The Struggle for Associational Autonomy. Comparative Politics. Vol. 32(2): 191-214

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Media Regulation in Tanzania; Rhetoric versus Reality

Appendix 1 Media Associations There are numerous media bodies and professional organisations in Tanzania. Their rationale is to Appendix 1 - Media Associations (TANZANIA) encourage media self-regulation and promote professionalism. The accountability framework consists in both the State and peer-centred mechanisms. Unfortunately, most media organisations operate more or less like briefcase non-governmental organisations (NGOs).

Table 1 - Media Associations NAME

ADDRESS

1.

Tanzania Journalists’ Association (TAJA)

2.

Association of Journalists and Media Workers (AJM)

3.

Journalism for Environment in Tanzania ( JET)

4.

Media Council of Tanzania (MCT)

5.

Media Institute of Southern Africa (TANZANIA CHAPTER)

P.O. Box 78172, Dar es Salaam, E-mail: misatan@africaonline.co.tz

6.

TAMWA

P.O. Box 8981, Dar es Salaam

7.

African Rural Press in Action (ARUPA)

P.O. Box 2869, Dodoma

8.

Business Journalists Association (BJA)

P.O. Box 70031, Dar es Salaam.

9.

Commonwealth Press Union (CPU)

P.O. Box 14905, Dar es Salaam.

P.O. Box 62057, Dar es Salaam.

10. Grassroots Female Communication Association (GRAFCA)

P.O. Box 14905 Dar es Salaam

11.

Journalists Environmental Association of Tanzania ( JET)

P.O. Box 15674, Dar es Salaam, Email:jet@africaonline.co.tz

12.

Media and Research Centre

P.O.Box 72026, Dar es Salaam.

13.

Media Owners Association (MOAT)

P.O.Box 25165, Dar es Salaam, E-mail: hmuhanika@yahoo.com

14. Morogoro Catholic Union of the Press (UCMP)

P.O. Box 947, Morogoro.

15.

P.O. Box 75449, Dar es Salaam., E-mail: pactz@hotmail.com

Popular Association of Cartoonists in Tanzania (PACT)

16. Press Photographers Association

P.O. Box 4793, Dar es Salaam

17.

P.O. Box 68820, Dar es Salaam

Tanzania Press Centre (TPC)

18. Tanzania Sportswriters Association (TASWA)

P.O. Box 77474, Dar es Salaam

19. Bunge Press Association of Tanzania (BUPAT)

P.O. Box 19754, Dodoma, E-mail: laudmwa@yahoo.com Source: Media Council of Tanzania (MCT) website (www.mct.or.tz)

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Dawn of Reality in Tanzania

Appendix 2 Press Clubs Appendix 2 - Press Clubs (TANZANIA) Press Clubs are popular organizations among the grassroots and rural journalists. There are 23 press clubs operating under the auspices of the Union of the Press Clubs (UPC) headquartered in Mwanza.

They provide space for journalists to meet, discuss their problems, exchange notes on their work, and offer support for those passing through turbulent professional moments.

Table 2 - Press Clubs Name

Contacts

1.

Union of Press Clubs (UPS)

http://www.utpc.or.tz/

2.

Arusha Press Club

P.O Box 6011, Arusha,Email: swedi1k@yahoo.com

3.

Central Press Club

Box: 2394, Dodoma, Emails: cpc2007.pressclub@gmail.com

4.

Coast Region Press Club

Box 30344, Kibaha, Email: mbwire2003@yahoo.com

5.

Lindi Press Club

Box 404, Lindi, Email: lindi.pressclub@yahoo.com

6.

Mwanza Press Club

P. O. Box 2516, Mwanza, Fax: + 255 28 2500829, E-mail: jimmy.luhende@gmail.com

7.

Media Club of Kilimanjaro

P.O. Box 7727, Moshi, Phone: 0754 824152, Email: janemhalila@yahoo.com

8.

Mbeya Press Club

Box 4079, Mbeya, Phone: 0713 350718, Email: nicomwaibale@yahoo.com

9.

Kigoma Press Club

P.O. Box 1005, Kigoma. Email: kigomapressclub@yahoo.com

10.

Mara Press Club

P.O. Box 590, Musoma. Email: ebwimbo@yahoo.com

11.

Tabora Press Club

P.O. Box 215, Tabora. Email: taborapressclub@yahoo.com

12.

Tanga Press Club

P.O. Box 6124, Tanga, Email: tangapressclub@hotmail.com

13

Morogoro Press Club

P.O. Box 1462, Morogoro. Email: moro_pc@hotmail.com

14

Rukwa Press Club

P.O. Box 285, Sumbawanga. Email: adolfgurian@yahoo.com

15

Iringa Press Club

P.O. Box 1394, Iringa. Email: iringapressclub@hotmail.com

16

Ruvuma Press Club

P.O. Box 1303, Songea. Email: ruvumapressclub@yahoo.com

17

Zanzibar Press Club

P.O Box 3514, Zanzibar. Email: zanpress@hotmail.com

18

Pemba Press Club

P.O. Box 129, Chakechake, Pemba. Fax: 026 2502655

19

Singida Press Club

P.O. Box 1097, Singida. Fax: 026-2502655. Email: nkunguamc2004@yahoo.com

20

Media Club of Manyara

P.O. Box 105, Babati. Email: mtingandi@yahoo.com/manyara.media@yahoo.com

21

Shinyanga Press Club

P.O. Box 1353, Shinyanga. Email: shinyangapressclub@yahoo.com

22

Kagera Press Club

Box 1899, Bukoba. Email: presskagera@yahoo.com

23

Mtwara Press Club

P.O. Box 1971, Email: mtwarapressclub@yahoo.com

24

Dar City Press Club

P.O. Box 9112, Dar es Salaam. Email: jmapinduzi@hotmail.com Source:

30

Media Regulation in Tanzania; Rhetoric versus Reality Appendix 3 - Newspapers (TANZANIA)

Appendix 3 Newspapers There are more than 700 newspapers and journals. Of these more than 40 are national dailies and weeklies. Only the most important national and regional newspapers are cited here.

Table 3 - Newspapers Name

Owner

National Newspapers 1.

Daily News

Tanzania Standard Newspapers (LTD)

2.

Habari Leo

Tanzania Standard Newspapers (LTD)

3.

Uhuru

Uhuru Publications

4.

Mzalendo

Uhuru Publications

5.

ThisDay

Media Solutions

Kulikoni

Media solutions

The Guardian

The Guardian Ltd

Nipashe

The Guardian Ltd

Alasiri

The Guardian Ltd

Lete Raha

The Guardian Ltd

The Citizen

Mwananchi Communications Ltd

Mwananchi

Mwananchi Communications Ltd

Mwana Spoti

Mwananchi Communications Ltd

8.

Mwananchi

Nation Group (Kenya)

9.

RAI

New Habari Corp

10.

Mtanzania

New Habari Corp

11.

Business Times

6.

7.

Regional Newspapers 12.

Arusha Leo

13

Msanii Africa

Sahara Communications

14.

Tumaini Letu

Arch-Dioces of Dar es Salaam

31

Introduction Dawn of Reality in Tanzania

Appendix 4 - Radio Stations (TANZANIA) Appendix 4 Radio Stations Radio stations are part of media groups that have interests in television and print. Radio stations have continued to offer more entertainment and superficial reporting than in-depth, agenda-setting material (AMI, BBC Trust).

Table 4 - Radio Stations 1.

2.

3.

Owner

Radio

Location

Africa Media Group

Magic FM

Dar Es Salaam

Classic FM

Dar Es Salaam

Radio One Stereo

Dar Es Salaam

East African Radio

Dar Es Salaam

Sky FM

Dar Es Salaam

TBC Taifa

Dar es Salaam

TBC FM

Dar es Salaam

Clouds FM Radio

Dar es Salaam

IPP Media Ltd

Tanzania Broadcasting Corporation

4.

Clouds Entertainment Co. Ltd

5.

Arch-Diocese of Dar 5es-Salaam Radio Tumaini Appendix Television Stations (TANZANIA) Dar es Salaam

6.

Abood Media Co. Ltd

Radio Abood

Morogoro

7.

Sahara Communications

Star TV

Mwanza

Radio Free Africa

Mwanza

Appendix 5

Television Stations

Table 5 - Television Stations Owner

Television

Location

Government

TBC 1

Dar es Salaam

TBC 2

Dar es Salaam

2.

Channel 10

Dar es Salaam

3.

Independent Television Vision (ITV)

Dar es Salaam

4.

East Africa TV

Dar es Salaam

5.

Pulse TV

Dar es Salaam

6.

DTV

Dar es Salaam

7.

CTN

Dar es Salaam

8.

SUA TV

Morogoro

9.

Star TV

Mwanza

10

Abood TV

Morogoro

11.

Tanga TV

Tanga

1.

32

From Fetters to Freedom Media Regulation in Kenya:

33

From Fetters to Freedom Introduction

By Muiru Ngugi

Introduction This chapter assesses media regulation Kenya by tracing the history of media regulation from the colonial days to the present time. By regulation we mean a law, rule or policy specific to a particular occupation, industry or potentially harmful activity. Such laws are usually additional to the general, criminal law and civil tort.

In the media, the scope of regulation varies among countries, often moderated by their democratic culture, with regimes that are more to the left being more highly regulated than those to the right. There are various kinds of laws aimed at regulating the media. Structural regulation aims at ensuring plurality of view that is assumed to obtain when the media are owned by different interests. There is also content regulation which upholds journalistic ethics and quality journalism.

A key component of this are the so-called time, place and manner regulations that prohibit dissemination of certain content, where such content can be presented, and even how it can be presented.

Most democracies observe a certain hierarchy of freedoms, with broadcasting being regulated more than the print media and the internet. This is mainly because of legacy reasons: the print media came before broadcasting and gained more acceptance over time with its watchdog role gaining admissibility as the so-called Fourth Estate.

The Internet, on the other hand, was conceived as a free space where all kinds of content could be published without inhibitions of any kind. It was, therefore, supposed to be content neutral and netneutral, meaning that the infrastructural backbone on which internet traffic rode could not be held responsible for nature of the content transmitted.

Broadcasting, on the other hand, is a powerful and transient medium; this quality imbues it with the power to influence without giving audience time to reflect on content or the possibility of going back to the transmission for a review. In most democracies, therefore, newspapers can be started without government permission at all, while entry and operation of broadcasting is statutorily regulated in terms of ownership, competition, access to the airwaves, programming content, and even journalistic accuracy and fairness.

We will see that the situation in Kenya is slightly different as starting a publication requires the payment of hefty publishers bonds. In broadcasting, there is no fairness doctrine and anything pretty much goes until parties meet at the Media Council’s Complaints Commission. To appreciate the complex situation of media regulation in Kenya, it is necessarily to go back to history.

The founding of the modern mass media in Kenya: A Primer The establishment of the modern mass media in Kenya can be traced back to the colonial period.

The territory that came to be referred to as Kenya was put under the British sphere at the Berlin Conference of 1885. Two years later, the territory was placed under the administration of the Imperial British East Africa Company (IBEAC), formed by William Mackinnon to exploit the British sphere in the East African region (Ogot 1981; Beachey 1996).

34

Media Regulation in Kenya

The IBEAC administered the territory until July 1895, when the British Protectorate was declared.

However, it is to the Christian missionaries that Kenya owes its first mass media tools. The first press in Kenya was started in 1895 by the Revered Albert Stegal of the Church Missionary Society. This publication was called the Taveta Chronicle and it was a quarterly. The Uganda Mail was published in Mombasa between 1899 and 1904 (Abuoga and Mutere 1988).

The British Empire established the Kenya Colony, a much more “public” colonial status in 1920. In between the protectorate and colonial statuses, the East African Standard was established in 1902 in Mombasa by an Indian immigrant, A. M. Jeevanjee. He later sold it to settler interests, who moved the paper to Nairobi, the then emergent capital of the protectorate. The paper’s ownership has since changed hands several times. It was acquired by the Lonrho conglomerate associated with British tycoon Tiny Rowland, in 1967. In the 1990s, Lonrho sold its interests to a consortium of local interests associated with then President Daniel arap Moi. Initially, the press in Kenya, although privately owned, was merely a vehicle for advocating and advancing settler interests and later for disseminating government information to the citizenry especially the White settler communities (Oriare 2008). The first indigenously edited publication was Muigwithania, published by one of the colonies earliest political organisations, the Kikuyu Central Association, and edited by Jomo Kenyatta, later to become the first president of Kenya (Berman & Lonsdale 1998). As the clamour for independence by the African population in Kenya intensified, several African publications were developed in the 1940s and 1950s. They included: Mumenyereri, Sauti ya Mwafrika, Uhuru wa Mwafrika, African Leader, Inooro ria Agikuyu, among others.

As we will see later, the colonial government was suspicious of these publications and did all it could to stop them from publication through all manner of oppressive regulation and even outright proscription.

Kenya’s largest newspaper, the Nation, was first registered in 1959 and the first issue came off the press on March 20, 1960. It was purchased a year later by the spiritual leader of the Ismaili community, His Highness the Aga Khan. The paper, which supported the nationalists’ cause, was the first to adopt a policy of Africanisation, employing a black Kenyan editor in chief, Hilary Ng’weno, barely five years after its establishment (Loughran 2010).

As far as broadcasting is concerned, radio in Kenya begun in 1928 with a single channel founded along the lines of the British Broadcasting Corporation (BBC). It catered mainly for the European settlers, providing news from Europe and other parts of the British Empire. The African Broadcasting Service (ABS) was created in 1953 as part of the war effort to win over the minds of Africans. It had programmes in Kiswahili, Dholuo, Kikuyu, Kinandi, Kiluhya, Kikamba and Arabic (Open Society Foundations 2011). ABS was the precursor of the current Kenya Broadcasting Corporation (KBC).

The Kenyan Media, therefore, was born in the context of colonialism. Its establishment largely kow-towed to the dominant power of the time - the colonial authorities. As far as free expression was concerned, colonialism was a conflicted enterprise. For instance, in so far as laws rooted in the English Common Law governed the Kenya Colony, it could be argued that in colonial Kenya, there was already a constitutional commitment to free expression. But this commitment was largely absent in practice at the time. Likewise, although the constitution of postcolonial Kenya guaranteed freedom of expression, this freedom remained elusive for the better part of Kenya’s post-colonial history. Consequently, therefore, although Kenya’s legal tradition can be traced to a rather

35

From Fetters to Freedom

liberal tradition in Britain, liberalism referred to the imperative of colonial rule and its attendant objectives. Under these circumstances, media independence was neither an aspiration of media owners nor of the media practitioners as the besotted proclivity of the collective colonial project was the exploitation of the colonies, not their liberation.

Media regulation in Kenya: An international context The role of freedom of expression in democratic rule is acknowledged in international agreements and conventions. Article 19 of the Universal Declaration of Human Rights (UDHR), states expressly that “everyone has a right to the freedom of opinion and expression” and that this right “includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.”64 Its successor, the International Covenant on Civil and Political Rights (ICCPR) guarantees the right to freedom of expression in the same Article 19.65 In Africa, the African Charter on Human and People’s Rights guarantees the right to freedom of expression in Article 9, including the right to receive and disseminate information lawfully.66 nd The African Commission on Human and People’s Rights, meeting at its 32 Ordinary Session from October 17 to 23, 2002, adopted the Declaration of Principles on Freedom of Expression in Africa.

The preamble re-affirms “the fundamental importance of freedom of expression as an individual human right, as a cornerstone of democracy and as a means of ensuring respect for all human rights and freedoms.”67 In short, Kenya has ratified all the continental and regional legal instruments relating to free expression and media. These include the Universal Declaration of Human Rights (UDHR), 1948; the International Convention on Civil and Political Rights (ICCPR), 1972; The Windhoek Declaration on Promoting an Independent and Pluralistic African Press (adopted by UNESCO in 1991); International Conference on the Great Lakes Region Protocol on Management of Information and Communication (2006); the African (Banjul) Charter on Human and People’s Rights (1981); the Declaration of Principles on Freedom of Expression in Africa (2002); African Charter on Democracy, Elections and Governance (2007); the African Charter on Broadcasting (2001); and the Declaration on Information and Communication Technology (ICT), 2001.

Despite the ratification of this impressive array of key international instruments, free expression in Kenya for a long time remained wanting. This is because until the promulgation of the 2010 Constitution, Kenya was not bound by these laws. A dualistic legal system existed which privileged domestic laws, most of which were inherited from colonialism. International laws had to be domesticated through the normal legislative process before they could be binding on the Kenyan state and her subjects. This situation has now changed and Article 2 (5) of the Constitution provides that “the general rules of international law shall form part of the law of Kenya.”

Additionally, Article 2 (6) mandates that “any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.” This is a controversial provision, much disliked by nationalists who see it as a kind of disenfranchisement of the parliamentary prerogative to make laws. However, it effectively makes international laws automatically operative in Kenya without having to resort to legislative domestication.

64 United Nations, “Universal Declaration of Human Rights,” http://www.un.org/Overview/rights.html. (accessed July 16, 2008).

65 United Nations High Commission for Refugees, “International Covenant on Civil and Political Rights,” http://www.unhchr.ch/html/ menu3/b/a_ccpr.htm (accessed July 16, 2008).

66 African Commission on Human and Peoples’ Rights, “African Charter of Human and Peoples’ Rights,” http://www.achpr.org/ english/_info/charter_en.html (accessed July 16, 2008).

67 African Commission on Human and Peoples’ Rights, “Declaration of Principles on Freedom of Expression in Africa,” http://www. achpr.org/english/declarations/declaration_ freedom_exp_en.html (accessed July 17, 2008).

36

Media Regulation in Kenya

A History of media regulation in Kenya Colonial regulatory regime Some writers have characterised the regime of laws governing free expression in general, and media operations in particular, in late colonial Kenya as being “very liberal” (Gadsen 1980: 515).

The Corfield Report makes the same argument (1960:191–201). While this is partly true, it obscures the fact that colonial rule was imposed on Kenya with little regard for human rights. As Ghai and McAuslan observed: “Human rights, as defined and protected in the Universal Declaration of Human Rights, the European Convention on Human Rights and the bills of rights in the constitutions of many countries, had little place in the colonial regime established in Kenya” (1970: 407).

To establish control, the Commissioner of the then East Africa Protectorate very early on promulgated the Native Courts Regulations of 1897, giving himself the powers to detain or otherwise restrict the movement of anyone in the protectorate if such a person was disaffected to the Government, or was suspected of being about to commit an offence or otherwise behaved in manner likely to be prejudicial to peace and good order in the protectorate. Other than a requirement that a report be made to the Foreign Secretary, there was no appeal against the Commissioner’s exercise of those powers (E.A.P.G., 1897).

The following year, the commissioner promulgated the Vagrancy Regulations under which a person could be detained for asking for alms or wandering about without any employment or identifiable means of subsistence (E.A.P.G., 1898). The Outlying Districts Ordinance gave the Commissioner power to restrict the movement of people not considered to be natives of such districts and to prevent them from entering such districts (E.A.P.G., 1899). The Native Passes Regulations, the Kipande law, empowered the commissioner to make rules for controlling the movement of “natives” travelling into or out of, or within the limits of the protectorate. These regulations were capable of depriving a person of freedom of expression in all its manifestations: speech, press, religion, movement, and association. The provisions were not designed to sunset and were in force throughout colonial rule and long after the purpose for which they had been enacted had expired.

As far as publishing was concerned, the control of the press was governed by the Book and Newspaper Registration Ordinance of 1906. It established a register of the proprietors of newspapers, printers, and publishers, who were required to submit returns giving the title of the newspaper, the names and addresses of the proprietors and the average yearly circulation. This Ordinance has aptly been described as giving “no control over the products of the press” (Colonial Office, 1960: 193). In other words, it did not censor journalistic, popular, or scholarly output. It did not have to. At that time, Africans were largely illiterate, and those with a modicum of literacy were regarded as backward and therefore incapable of undertaking anything as sophisticated as publishing.

It is, therefore, possible to look at the Newspaper Registration Ordinance and to conclude that freedom of expression was not threatened during colonialism. What is noteworthy is that the government retained its options for censorship under the Penal Code (1948), specifically through the law on sedition.

Section 57 of the Penal Code defined a seditious intention as an intention “to promote feelings of ill-will and hostility between different classes of the population of the Colony.” Sub-section 2 of Section 57 stated that “in determining whether the intention with which any act was done, any

37

From Fetters to Freedom

words were spoken, or any document was published, was or was not seditious, every person shall be deemed to intend the consequences which would naturally follow from his conduct at the time and under circumstances in which he so conducted himself.” In effect, therefore, colonial subjects were prohibited under this law from voicing grievances, however genuine, against any class of population of the colony, because so doing could potentially result in class and inter-communal hostility or otherwise threaten social order. Even more ominously, the actions of others could always be held against anyone charged with sedition, because under the penal code, a person charged with sedition was deemed to have intended the consequences that might arise from any exercise of free expression.

This law was used but sparingly for prosecution purposes, but this was mainly because the vernacular publications sailed “as close to the wind as possible,” (Colonial Office, 1960: 196).

Publishers knew how far they could go. Nevertheless, the colonial administration did prosecute some editors and publishers, perhaps to set an example of them. For instance, on June 20, 1950, J. C. K. Kamau and Victor Wokabi, joint editors of Hindi ya Gĩkũyũ, together with their printer, V. G. Patel, were convicted on charges of publishing a seditious article. Then on March 19, 1951, Victor Wokabi, editor of Muthamaki, was again charged with seditious publication and contempt of court, but was acquitted after apologising to the court. Another seditious case involved W. K. Kĩhara, editor of Muramati, who was convicted on a charge of publishing a seditious article and was ordered to pay a fine of 25 pounds.

To understand the circumstances under which the media operated, one has also to understand the climate of discrimination and general intimidation that existed, as well as ignorance of laws and Western liberalism in general. According to Ghai and McAuslan, the colonial powers were applied discriminatively as they were used only against those subject to the Native Court Regulations, that is Africans, and where the law was not expressly discriminatory, administrators were given wide discretion that was exercised discriminatively (1970:408–409). The government also took to monitoring the vernacular publications very closely. As Corfield explained: All vernacular papers and news-sheets were subjected to exhaustive scrutiny by the C.I.D.[Criminal Investigation Department], and subsequently by Special Branch, every tendentious paragraph being filed for record and excerpts constantly submitted to the Chief Secretary, the Member for Law and Order and other officers concerned, but though objectionable in substance, subversive in tone, and calculated to foster disaffection, the majority of the matter published did not, in the opinion of the Attorney-General, come within the purview of the Criminal Code. Accordingly, in all but a very small minority of instances, the law officers were reluctantly compelled to advise that though much of the material submitted was indeed highly objectionable, it did not constitute a breach of the law punishable by legal proceedings (1960: 196).

The colonial government was alarmed by the success of the African press, and felt that it was losing the war for the hearts and minds of the native population. It reacted in two distinct ways. It started holding senior level meetings to discuss the African press, set about reorganising and strengthening its propaganda muscle, and started seeking anti-media laws in use in other colonies for adoption in Kenya. However, when this approach failed, the government clamped down on freedom of expression after abrogating free expression under its Emergency Regulations of 1952.

The first meeting over the issue was held in October 26, 1946, and was attended by the Labour

38

Media Regulation in Kenya

Commissioner, the Member for Health and Local Government, the Social Welfare Adviser, and Mr. H. E. Lambert, a retired administrative officer. This meeting noted that: •

The “present trend of the vernacular press constituted a grave menace to the future of the Colony”;

•

Certain vernacular newspapers were financed by “seditiously minded Indians” and that their “object was purely anti-Government and anti-European”;

•

Regarding freedom of the press, “liberty was being taken for license,” and that in addition to “deliberate distortion of facts, many of the articles in such newspapers contained a most dangerous and pernicious form of anti-European propaganda”;

•

The impact of an “unbridled Press amongst uneducated and politically immature Africans was infinitely more serious than that which could be achieved by inflammatory articles in newspapers in England”;

•

There was a need “for information as to what legislation existed in any other British Colony for the control of the press”;

•

There was also the need to consider “the possibility of some form of supervision or censorship” (Colonial Office 1960:191);

•

A suitable Government publication be subsidised and that the staff of the Criminal Investigation Department be increased to enable it to undertake closer scrutiny of vernacular newspapers; and

•

“Action in the courts should immediately follow the slightest infringement of the law and the editors should be so informed at frequent intervals” (Colonial Office, 1960:191).

As part of strengthening its propaganda efforts, the government abolished the European and Indian information sections in accordance with the recommendation of the Report of the Standing Finance Committee that “the policy with regard to the Information Office should be completely changed with a view to its activities, for the main part, being directed to the education of the native areas under the direction of the Chief Native Commissioner and the Provincial Commissions” (Colony and Protectorate of Kenya, 1950:2). The reference to the “education of native areas” gives away the existence of an ongoing battle over the control of public opinion in the rural areas and within the ranks of the African people.

On August 9, 1949, the Legislative Council (Legco) appointed a committee of nine to inquire into the colony’s information services “in view of public doubt as to the effectiveness of the Kenya Information Office” (Colony and Protectorate of Kenya, 1950:1). In its report, issued March 1, 1950, the committee concurred with “Her Majesty’s government that provision of adequate machinery for information is an integral part of modern Administration” and that it was necessary to “concentrate on providing a machine geared appropriately to the task of promoting the accepted policy of raising the standard of living of the majority of inhabitants of this country as soon as possible, and to the maintenance of tranquillity and good relations” (Colony and Protectorate of Kenya, 1950:6–7).

The recommendations of the committee constituted a total overhaul of the colonial information services with a view to making them effective in the dissemination of

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information in a changing context of heightened politics. It offered the tools for effectively countering the political views of the nationalist press. However, the committee still gave the government additional tools to fight the war of public opinion if its recommendations failed to work. Tucked in the middle of page 11 of the committee’s report was the committee’s warning to the effect that, in its view, a time might come “when the legislature will have to consider granting powers to the Governor in Council to suspend papers guilty of deliberate and persistent misrepresentation of fact” (Colony and Protectorate of Kenya, 1950:11).

The colonial administration already had the power to proscribe publications, and it had already used it, in the case of Mũigwithania, which was banned in 1940. It also had considerable powers under the Penal Code to prosecute what it deemed to be offensive publications. This report appeared barely two years after the Universal Declaration of Human Rights which guaranteed freedom of expression in its Article 19. The publication of the report indicated that although Britain was flying with the eagles and foraging with chicken as far as free expression in its domains were concerned.

In recommending more draconian measures of dealing with a wayward press, the committee probably felt compelled to gloss over such an arrogation of government authority with a veneer of legality. All members of the committee except one, including J. arap Chemallan, the only African member, signed on this recommendation. The lone dissenter was C. B. Madan, an Asian lawyer, later to become the Chief Justice of Kenya in the 1980s. His dissent, also published in the report, is a brave and eloquent restatement of role of the press in a democratic society and a spirited defense of the freedom of expression: “I do not believe that in a free and democratic state the time can ever come, except when a state of war or some such grave emergency exists, to make it necessary to suspend any newspapers. If the newspapers are guilty of deliberate and persistent misrepresentation of facts, then the Information Services and other means at the disposal of the Government should prove adequate to counteract the effect created by such newspapers and the ordinary law of the land is adequate to deal with any offence committed by reason of such misrepresentation. The very idea of giving powers to suspend newspapers is contrary to the idea of freedom…Healthy, independent and fearless criticism is necessary for the proper functioning of democratic states and the fear of suppression will affect not merely the newspapers which have no genuine desire to be fair or accurate but also those who have an earnest desire to observe the rules of high journalistic ethics and will form the very foundations of the state (Colony and Protectorate of Kenya, 1950:16). “ Madan wrote that all wrongs that newspapers may commit must be tried in a court of law, and that such cases should not be determined by an executive authority “before which an adequate opportunity to defend oneself may be absent or may be denied.” In his view, it was better to have newspapers that misrepresented facts persistently and deliberately, since, in any case, they were liable to penal legislation, than to contemplate legislation to proscribe such newspapers. He concluded thus: “Newspapers are too vital a medium of public expression of opinion to be left to the mercy of an executive, and particularly in a multi-racial society where power is largely concentrated in the members of one race and where accordingly the Government never enjoys quite the same degree of support or trust as in a more homogeneous or uniform

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society. Suppression or danger of suppression of a newspaper through the executive would spread the roots of distrust and fear even more widely than is normal in such a society.

It is better that people should continue to enjoy freedom of speech and action and the unchallengeable right to criticize freely within the limits imposed by the laws of sedition, libel, etc., as is and should be accorded in all democratic countries, than to suppress the organs which provide the means to do so because some newspapers are guilty of misconduct. The freedom of the press should be maintained. It is this freedom which is one of the mainstays of any democratic country and a denial or weakening of that freedom could hardly fail to end in the denial of all true liberty (Colony and Protectorate of Kenya, 1950:16).”

In making these recommendations, the committee exposed the presumptions of authority whenever it curtails freedom of expression, namely, that it was acting to protect people from themselves: “We believe that in order to maintain tranquility and good relations, it is of first importance that the policies, actions and future intentions of the Government should be conveyed to the public; and that on the other hand, the Government should be appraised of public opinion, as far as possible, on all matters of importance (Colony and Protectorate of Kenya 1950:7).”

As is clear from these events, however, protecting people from themselves is often an excuse for unwarranted high-handedness. Governments, when they take measures to curb freedom of expression, do not always acknowledge their own contribution in the circumstances that necessitate robust exercise of freedom of the kind that is often deemed to threaten order and stability.

As if to fulfil the committee’s recommendation, on October 3, 1952, a few days before the declaration of a State of Emergency, the Printing Presses (Temporary Provisions) Ordinance was enacted. It gave the Registrar of Printing Presses the power to withdraw any printer’s licence if it appeared to him that the licensee has kept or used, or was likely to keep or use, a printing press for unlawful purposes, or for the printing of any document prejudicial to, or incompatible with, peace or good order in the Colony. This was an ingenious but lethal attack on press freedom; by focusing on printing presses, it dealt a death blow to publications without appearing to attack the publications themselves.

The declaration of a State of Emergency affected all fundamental freedoms of the individual.

Officially, what the Governor invoked were the Emergency Powers Order in Council, a decree made at Buckingham Palace to bolster security through extrajudicial powers. The Order gave the Governor power to proclaim an Emergency in any part of or on the entire Colony. Once the State of Emergency was declared, the Governor could then make regulations that were in his opinion necessary for securing public order, and for the suppression of mutiny, rebellion and riot.

Among the very comprehensive powers given to the Governor was a provision for the detention and deportation of persons from the territory. The Governor could also amend any law, or suspend the operation of any law and apply any law with or without modification. He was also empowered to apprehend, try and punish persons offending against regulations (Colonial Office, 1960: 243).

The Governor exercised all this power without “limit in time” and without being required to submit any regulations to the Legislative Council (Colonial Office, 1960: 243). In short, the Emergency

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regulations gave absolute powers to the Governor to legally do things that he could not have done under ordinary circumstances where rule of law was operative.

These dictatorial powers were trained on all freedoms of expression. After the State of Emergency was declared, leaders were arrested and detained, and entire communities were put in concentration camps. All African vernacular periodicals were banned. The declaration gave the “government the power to suppress newspapers considered a danger to public order” and it “took immediate advantage of these powers and banned twelve newspapers and twenty-nine leaflets and pamphlets” (Gadsen 1980:531).

The following year, it became illegal to produce newspapers in the Gĩkũyũ, Kiembu and Kimeru languages (Gadsen 1980:531). According to Muoria, “for anyone to be seen with an old copy of Mũmenyereri meant being sent to jail for six months” (1994: 23). The 1906 ordinance concerning the registration of newspapers was amended to require registration of such publications within two weeks (Gadsen 1980:531), thus eliminating the loophole that publishers had exploited in the past to produce short-lived newspapers. According to one media historian “these measures effectively killed the African press” as printers risked having their licences revoked if they printed African-run Gĩkũyũ newspapers (Gadsen 1980:532). The few surviving African newspapers such as Ramogi had to appoint Europeans on their board in order to survive (Gadsen 1980:532).

Post-independence regulatory regime The transition from colonial rule to independence was a mere change of guard. Old structures of dominance and oppression were retained. The situation was accentuated by the perception, prevalent at the time that a robust criticism of the newly independent, fragile state would lead to its disintegration. It was also regarded as bad manners for Africans to lambast an African government.

The period immediately after independence was consequently characterised by a moment of calm as African journalists worshiped the nationalists now in charge, and white and Asian journalists keen not to rock the boat.

Nevertheless, this honeymoon was soon over. Voices of dissent emerged, fuelled partly by tribalism, patronage from unhappy white settlers, discontent on the part of politicians left out of power sharing, and ideological cleavages between the founding fathers. To minimise criticism and to create a semblance of political stability, the regime relied on a plethora of laws enacted for this purpose or inherited from colonialism. Amongst the laws preventing free expression of ideas was the Penal Code 1960, Chapter 63, Section 40 (1), which made it a treasonable crime for: Any person who owing allegiance to the Republic, in Kenya or elsewhere: ⎯ (a) encompasses, imagines, invents, devices, or intends – (i) the death, maiming or wounding, or the imprisonment or restraint, of the President; or (ii) the overthrow by unlawful means of the Government; and (b) expresses, utters or declares any such compassing, imaginations, inventions, devices or intentions by publishing any printing or writing or by overt act or deed, is guilty of the offense of treason.

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Section 52 of the same law, gave the government power to proscribe publications if it considered it necessary to do so in the interests of public order or morals.

The Penal Code stated that any person was guilty if he or she printed, made, imported, published, sold, supplied, offered for sale or supply, distributed, reproduced, or possessed a prohibited publication. This law also gave any police officer or administrative officer authority to seize and detain any prohibited publication which the police may find in “circumstances which raise a reasonable presumption that an offence” under the Act has been or is intended to be committed.

It is this provision that was to cause so much trouble for government critics in the 1980s as the Special Branch arm of the police pursued prohibited publications in homes and offices of perceived dissidents.

The chief architect of the regime of laws governing freedom of expression in Kenya was Charles Mugane Njonjo, a former prosecutor for the colonial regime and later Attorney-General, who was a self-confessed lover of all that is British. Njonjo saw himself as a the defender of the ailing President Jomo Kenyatta who and protected the interests of his British friends.

Njonjo enthusiastically protected the regime. He therefore threatened and frightened off the opposition, often quoting the most stringent sections of the Penal Code, including Section 40 (1), which made it a crime to imagine the death of the President. This obviously contradicted the bill of rights contained in Chapter 5, Article 79 (1) of the Constitution, which stated that: “Except with his own conscience, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence.”

Despite this positive provision, there existed a number of other laws that curtailed media freedom.

These included The Books and Newspapers Act (Chapter III, Laws of Kenya). Under this law, every publisher of a newspaper was required to make daily returns to the Registrar of Newspapers (Section 7), and also to submit returns of vital information regarding publication and circulation annually (Section 8). In addition, the act stipulated that no newspaper could be printed or published without executing a Ksh10,000 bond, registered and delivered to the Registrar of Newspapers by any person, company or organisation wishing to publish a newspaper (Section II). This bond was intended as security towards the payment of any monetary penalty entered against the paper in a legal suit.

The government also retained the power to ban publications. This power was contained in Section 52 of the Penal Code, which was inherited from the colonial rule. The power could be used to ban both the importation and the local publication of a newspaper. To prohibit a publication, two conditions had to be met. One was that it must have appeared to the Minister for Home Affairs that the prohibition of the publication was reasonably required in the interests of defence, public safety, public order, public morality and public health. The other was that the prohibition was reasonably justifiable in a democratic society. However, without an objective test, determining the existence of the two conditions was left at the discretion of the minister who was required to publish the prohibition in an issue of the Kenya Gazette, upon which it became a criminal offence punishable by up to three years imprisonment to print, make, import, publish, sell, supply, distribute, reproduce, or possess the prohibited publication.

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Another impediment to free of expression at this time and for most of the post-colonial era was the felony of sedition. According to Section 56 of the Penal Code, a seditious intention was defined as an intention: (a) to overthrow by unlawful means the Government of Kenya as by law established; or (b) to bring into hatred or contempt or to excite disaffection against the person of the President or the Government of Kenya as by law established; or (c) to excite the inhabitants of Kenya to attempt to procure the alteration, otherwise than by lawful means, of any matter or thing in Kenya as by law established; or(d) to bring into hatred or contempt or to excite disaffection against the administration of justice in Kenya; or (e) to rouse discontent or disaffection amongst the inhabitants of Kenya; or (f) to promote feelings of ill-will or hostility between different sections or classes of the population of Kenya.

A seditious publication was defined as a publication containing any word, sign or visible presentation that expressed an intention of a seditious nature. Section 57 provided that any person who: (a) does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with a seditious intention; or (b) utters any words with a seditious intention; or (c) prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication; or (d) imports any seditious publication, is guilty of an offence and is liable to imprisonment for up to 10 years.

Also, any person found in possession of a seditious publication was guilty of an offence, and could either be jailed for the offense of sedition and his printing machine confiscated and barred from publishing newspapers.

Another law used to curtail free expression, and in particular investigative journalism, was the Official Secrets Act. The intention of this law was to prevent government secrets from falling into the hands of foreign spies, but it ended up preventing more than this and catching journalism in its web of tentacles. For it barred entry into any ‘prohibited place’ and forbade taking photos of such places. It also forbade any employee or former employee of government from communicating any information obtained in the course of work. It was also an offence for a person to receive such information or incite or attempt to procure another person to commit an office under this law.

The totality of these laws and directives had a chilling effect on the mainstream press. Although still regarded as amongst the more vibrant in Africa, the Kenyan press in the 1970s was distinguished by its avoidance of any criticism of the executive and a propensity to appeal to the lowest common denominator. David Lamb, who reported on Africa from Nairobi from 1976 to 1980, observed that the Kenyan press “combine some intelligent editorial comment with a great deal of sex, crime and scandal” resulting in a “healthy circulation” and an “X-rated product” (Lamb 1982: 254).

In reality, however, Kenya under President Daniel arap Moi was a much more difficult place in which to exercise free expression. Early in the Moi presidency, the Minister for Information and Broadcasting announced in 1980 that Kenya could no longer afford an unregulated press. “As a young developing country, we cannot afford the luxury of permissive reporting practiced by the developed countries. We must, therefore, use our mass media systems for nation building and in uplifting the standard of living of our people.” (Daily Nation July 10, 1980). In the circumstances, many Kenyans felt they could not depend on the mainstream media to express themselves and sought other non-mass communication forms of expression. This is what gave rise to the underground press such as Pambana, Pambazuka, and the Organ of the December 12th Movement.

These publications were pushing for the liberalisation of politics, which the government opposed until it ran out of options and introduced multi-partism in 1991.

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What is clear is that the advent of multi-party politics confirmed the worst fears that the government had about freedom of expression. Activists of all kinds were emboldened, despite the oppression, and the Nairobi of the early 1990s resembled a war zone as demonstrators battled the police. An abrasive alternative press emerged that practiced a kind of crusading, adversarial journalism that had not been witnessed in Kenya since the pre-independence period. Society Magazine became the first publication in Kenya to draw a cartoon of President Moi and to place it on the cover (Nyamora, 2007).

At first, the government resorted to the usual methods of curbing free expression, including arrests and prosecution under all kinds of oppressive laws in the books. Upon arrest, journalists and publishers were often arraigned in court hundreds of kilometres from their residences. When this harassment drew too much criticism, the government fell back on more ingenious methods, including sending security operatives to disable printing presses and cart away vital parts of the printing equipment.

In one such raid in 1993, the police totally immobilised Fotoform, a private printing press whose client list included such notable alternative publications as Finance, Economic Review, Society, and Nairobi Law Monthly (Nyamora, 2007). The government appears to have decided that the best way to tackle the challenge posed by too much freedom of the media was to sponsor legislation to regulate the way the media operated. In July 1992, Attorney-General Amos Wako introduced the Statute Law (Miscellaneous Amendments) Bill (1992). Section 16 (A) of the Bill sought to have newspapers and magazines found guilty of defamation or libel to pay an amount not less than Ksh1 million in damages to the plaintiff where the libel was in respect to an offence punishable by death, and, in respect to offenses punishable by imprisonment for a term not exceeding three years, the new law authorised courts to award damages not less than Ksh400,000. The Bill was cleared by parliament and received presidential assent. Coming soon after political liberalisation, it was clear that the aim of the new law was to threaten journalists.

In 1993, the government appointed the “Task Force on Press Laws” under the chairmanship of Hillary Ng’weno, publisher of the Weekly Review. The task force was charged with the responsibility of studying information access and dissemination, ethical and professional standards for journalists and their reinforcement, and self-regulation of the media ideally through a media council or similar body. It was also to study the composition, functions, duties and procedures of such a body, media ownership, licensing, and development. Additionally, it was to also recommend “a comprehensive legal framework for the exercise of the freedom of the Press and the development of a dynamic and responsible print and electronic media” (Kenya Gazette, Legal Notice No. 6889, December 24, 1993:12).

In 1995, the task force presented its recommendations to the Attorne- General, who immediately drew up the Press Council of Kenya Bill and a Kenya Mass Media Commission Bill in January, 1996.

However, these Bills were withdrawn hastily as their contents leaked out. Critics, mainly journalists, lawyers, scholars and donors, said they were aimed at controlling the press (Dixon 1997: 171; Odhiambo 2003:304). Gitau Warigi, a prominent columnist, argued that the Bills were a replica of the controversial Nigerian Press Council Decree No. 85 introduced by Nigerian dictator Sani Abacha and that one of the bills even included a grammatical error in one section (The EastAfrican, January 22-28, 1996).

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But the government was not to be deterred. In 1996, the Task Force on Press Laws was reconstituted, this time under Horace Awori, a former chair of the Foreign Correspondents Association. The task force collected views from a wide base: media organisations such as the Kenya Union of Journalists, the Kenya Community Media Network, Media Owners Association, Advertising Association of Kenya, university lecturers, and editors. Others included political parties, civil society and religious organisations.

It even sought the views of regional media organisations such as the Media Institute of Southern Africa (MISA), and media organisations and practitioners in Uganda and Tanzania, as well as regulatory authorities in those countries. For almost two years, the task force studied and wrote its report, which it finally submitted to Wako. A key recommendation of the report was that a body to be called the Independent Broadcasting Authority (IBA) be established to regulate the allocation of frequencies in the broadcasting and telecommunication sectors (Gret 2001:7). The government immediately bought the idea but not the name, and brought the Kenya Communication Commission Bill before parliament. The Bill updated the Kenya Posts and Telecommunications Act (Cap 221) of the Laws of Kenya, with an offshoot called the Communication Commission of Kenya Act (Cap 2 of 1998). The Act established the Communication Commission of Kenya (CCK) as a regulatory body, fashioned along the lines of the US Federal Communication Commission (FCC).

But the government was also exploring other ways of curtailing media freedom. The new liberalised dispensation, and in particular the Inter-Parties Parliamentary Group (IPPG) agreement of 1997, changed the way the government responded to criticism as well as how it dealt with its critics. While old ways of dealing with critics such as arrests, violence and general intimidation and even barring the media from reporting parliament were still available to the government, it was now illegal, following the repeal of sedition laws in 1997, to detain critics. This amounted to a drastic diminution of the government’s coercive powers. It meant that detention without trial, the most effective repression tool which successive governments had used since colonialism, was now unavailable.

New ingenious ways of combating dissent had to be invented.

At first, efforts towards this end took the course of admonishing the media to adopt self-regulation.

On April 11, 2001, a Code of Conduct for Journalists and the Mass Media was released (Gret 2001: 5). It was the product of the Media Industry Steering Committee, which comprised the Kenya Union of Journalists, Media Owners Association (MOA), Editors Guild, Alternative Press, Media Training Institutions, Correspondents Association, Media NGOs and the State Media. However, the government rejected media self-regulation if such self-regulation was not statutory.

In 2001, the KANU government introduced a bill aimed at controlling the media. The Statute Law (Miscellaneous Amendments) Bill of 2001 contained proposals to change the Books and Newspapers Act by increasing the publishing bond from Sh10,000 to Sh1 million and criminalising the distribution and selling of newspapers if the bond was not executed. Media owners, practitioners, activists, and international organizations opposed the proposed law on the grounds that it would lead to the folding up of a number of small publications due to the prohibitively high regulatory fees. To many observers, the reasons for the introduction of the bill, as well as its intended purpose, were clear. A report by the Committee for the Protection of Journalists expressed the reasons succinctly: “The bill was apparently drafted in response to the perceived threat of an emerging tabloid press that specialises in gossipy exposes about politicians and prominent business people.

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The higher bond might have made it easier for a plaintiff to collect on a libel judgment, but local journalists also viewed it as an attempt to stifle anti-government journalism by deterring new publications from entering the market and making vendors wary of new magazines and newspapers (CPJ 2002).”

Despite this criticism, the bill passed nevertheless, because it was bundled with other attractive reforms, such as better emoluments for judges and other holders of constitutional office. It also provided for continuous voter registration, a big change since voters used to be registered in the year of the general election, disenfranchising many people who had attained voting age in the process (Sunday Nation, June 9, 2002).

Politicians also discovered a new, more potent weapon to control freedom of expression.

Defamation lawsuits, which had not had a noteworthy impact in Kenyan media, suddenly became common. Starting from 1997, “the number of libel cases against newspapers, magazines, and bookstores” soared (HRW 2002:17). Many of those cases were brought by members of the ruling party, KANU, against independent media.

However, KANU-leaning newspapers, like the Kenya Times and East African Standard, also lost major defamation cases resulting in a chilling effect for all media. Some of the more famous cases included one filed by a Moi aide, Joshua Kulei, who was awarded Ksh10 million against The People Daily, an opposition-leaning newspaper. Another Moi confidant, Cabinet Minister Nicholas Biwott, was awarded Ksh67.5 million ($ 900,000) for defamation by two book publishers and two Nairobi bookstores that had stocked the books in question, The Rogue Ambassador, a memoir by former U.S. Ambassador to Kenya, Mr. Smith Hempstone, and D. Ian West’s Casebook, by Dr Ian West and Chester Stern, which contained allegations that Biwott found injurious. Biwott also got an injunction barring the Daily Nation newspaper from serialising one of the books. Even President Moi himself sued Ambassador Hempstone in June, 2001 (US Department of State 2002).

Biwott also had another defamation case decided by the courts in his favour. He had sued The People Daily after the newspaper printed a story alleging that Biwott had corruptly influenced the award of contract for the Turkwell Gorge hydroelectric dam to a consortium of French companies. In March 2002, the court awarded Biwott Ksh20 million ($ 266, 667) (Makali 2003). This case was particularly significant because it appeared to target investigative journalism. In a country that was consistently listed as one of the most corrupt by Transparency International in its annual Corruption Perception Index, it was a big blow to the fight against corruption.

The Daily Nation, the largest newspaper in the country, was also a frequent target of defamation suits. According to Human Rights Watch, the newspaper had, since 1997, been sued by a son of President Moi, a government minister, the State House controller, and a lawyer (2002: 17). In September 7, 2001, High Court Judge Kasanga Mulwa found the Nation guilty of defaming Mr Patrick Machira in a picture caption it published in 1995 suggesting that a woman client had assaulted him in a disagreement over money and ordered it to pay Ksh10.2 million as damages. Mr Machira, a lawyer, had sued the newspaper in 1996, arguing that the woman was not his client, that the newspaper had misled its readers to conclude that woman was his unhappy client , and that this amounted to libel per se (Daily Nation May 25, 2002).

Journalists and publishers complained that the avalanche of defamation suits was meant to silence them. Through the awards, the judiciary showed its deference to the executive and appeared to

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protect public figures more than media freedom. As High Court Judge Richard Kuloba put it, the “law protects the character more than the press” (Daily Nation, December 1, 2001). The totality of these excessive damages awarded to public officials appeared to disregard the precedent set in the famous US libel suit, New York Times v. Sullivan where the US Supreme Court held that “all public officials who sought to win a libel suit based on defamatory allegations about how they did their jobs or whether they were fit to hold those jobs henceforth would have to prove actual malice” (Pember and Calvert 2008: 164).

Media regulation Kenya: The current status Freedom of expression in Kenya has improved considerably over the last two decades. Kenyans are now able to express themselves without fear that the state will arrest, detain, or otherwise interfere with their expression. Generally speaking, Kenyans enjoy more freedom of expression today than at any other time during their modern history.

The Kenyan media operate with enviable freedom, and critically examine any branch of government.

The President is criticised in his official and private capacities.68 Assessing this freedom, Warigi observed that Kenyans can “say and shout whatever we want without him [President Mwai Kibaki] getting into our hair the way his predecessors would have” (Daily Nation October 1, 2006).

Salim Lone, a celebrated Kenyan editor who had fled the country in 1982 at the height of crackdown on the media, on retiring from the United Nations in 2004 and returning to Kenya, found “wondrous” press freedom (Kabukuru 2006). Kenya’s most renowned writer, Ngugi wa Thiong’o, published an op-ed article in which he said that he was “very impressed by the atmosphere of free speech prevailing in the country” (Daily Nation December 9, 2007). Dr Peter Oriare Mbeke, a journalism lecturer, remarked that the “Kenyan media have a reputation as a fierce defender of good governance and democracy” (2010:2).

However, there are many who feel that free expression is still restricted in Kenya. One such person is seasoned journalist Joe Kadhi, who has expressed the view that the government is still secretive and oppressive (2005). There appears to be agreement among international free expression monitors that freedom of expression in Kenya is non-existent. In 2005, Freedom House, an American organisation that monitors freedom of expression, adjudged Kenya as “Not Free.”69 An opinion poll done in 2006 showed that 43 per cent of Kenyans thought that the raid on The Standard was not justified (Kabukuru 2006). Clearly, the freedom of expression in Kenya is a highly contested issue.

What is clear, however, is that the political climate in Kenya has changed drastically in recent years, so much so that the country may never revert back to the old days of colonial and post-colonial authoritarianism. Nothing gives better credence to this view than the promulgation of the new Constitution of Kenya 2010. The Constitution contains a lengthy and grandiose Bill of Rights that grants Kenyans extensive human rights, including first generation and fourth generation rights, with freedom of expression occupying a prominent place in this pantheon of constitutional rights.

As we have seen, this relatively expansive freedom was the culmination of historical contests between the modern Kenyan state - both colonial and postcolonial - on the one hand, and anti68 Kibaki family matters, particularly what appears to be a contest between his wife and a woman that the media often associates with him, provide salacious fodder for Kenya’s media.

69 Map of Press Freedom by Freedom House is available at: http://www.freedomhouse.org/template.cfm?page=251andyear=2005 (Accessed April 2, 2006).

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colonial nationalists, post-independence liberals and contemporary democratising elements, on the other.

The right to free expression is the cornerstone of democracy and the Constitution fully concurs.

Article 33 of the Constitution guarantees everyone the right to freedom of expression as follows:

(1) Every person has the right to freedom of expression, which includes— (a) freedom to seek, receive or impart information or ideas; (b) freedom of artistic creativity; and (c) academic freedom and freedom of scientific research.

(2) The right to freedom of expression does not extend to— (a) propaganda for war; (b) incitement to violence; (c) hate speech; or (d) advocacy of hatred that— (i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or (ii) is based on any ground of discrimination specified or contemplated in Article 27 (4).

(3) In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.

The grounds of discrimination prohibited by the Constitution in other sections are “race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth” (Article 27 (4)). It is interesting to note that the Constitution guarantees free expression rights that did not expressly exist in the Independence Constitution, such as academic freedom and freedom of scientific research. The relevance of academic freedom to journalism lies in the fact that academics are an important journalistic source.

They can now speak freely about their work some which critiques the establishment, including the media’s own acquiescence to society’s dominant forces. For media professionals, Article 33 is important because free expression is guaranteed to all citizens and journalists are first and foremost citizens.

Unlike in the old Constitution which did not expressly guarantee media freedom, the 2010 Constitution does so in Article 34 as follows:

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(1) Freedom and independence of electronic, print and all other types of media is guaranteed, but does not extend to any expression specified in Article 33 (2).

(2) The State shall not— (a) exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium; or (b) penalise any person for any opinion or view or the content of any broadcast, publication or dissemination.

(3) Broadcasting and other electronic media have freedom of establishment, subject only to licensing procedures that— (a) are necessary to regulate the airwaves and other forms of signal distribution; and (b) are independent of control by government, political interests or commercial interests.

(4) All State-owned media shall— (a) be free to determine independently the editorial content of their broadcasts or other communications; (b) be impartial; and (c) afford fair opportunity for the presentation of divergent views and dissenting opinions.

(5) Parliament shall enact legislation that provides for the establishment of a body, which shall— (a) be independent of control by government, political interests or commercial interests; (b) reflect the interests of all sections of the society; and (c) set media standards and regulate and monitor compliance with those standards.

What is really noteworthy about these provisions, apart from the express guarantee of media freedom, is the constitutional provision for the establishment of a national broadcaster and the establishment of a statutory media regulator. This should put paid the perennial debate about the commitment of the government to public service broadcasting. Public service and public interest broadcasting are important variation of journalistic practice which are now constitutionally guaranteed. What remains is for the government to fund the public broadcaster adequately and to insist on quality public interest broadcasting in return.

The establishment of a constitutional statutory media regulator also settles, until the Constitution is

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amended at least, the issue of whether Kenya should have a statutory media regulator, a statutory media regulator with legislative powers, limited complaints commission, or a voluntary and optional self-regulatory body. The Constitution mandates a statutory media regulator; parliament should pass the law establishing such a body with full participation and consultation of all stakeholders, without the resultant regulatory body being established in the image of powerful interest groups such as media owners or the government itself.

At the moment, Kenya has a statutory media regulatory body, the Media Council of Kenya (MCK), which was established by the Kenya Media Act 2007. The preamble of the Act states that the MCK was established for the conduct and discipline of journalists and the media and for the selfregulation of the media, among other functions.

The Media Council of Kenya has its functions as follows: a) mediate or arbitrate in disputes between the government and the media, between the public and the media and intramedia; (b) promote and protect freedom and independence of the media; (c) promote high professional standards amongst journalists; (d) enhance professional collaboration among media practitioners; (e) promote ethical standards among journalists and in the media; (f) ensure the protection of the rights and privileges of journalists in the performance of their duties; (g) advise the government or the relevant regulatory authority on matters pertaining to professional, education and the training of journalists and other media practitioners; (h) make recommendations on the employment criteria for journalists; (i) uphold and maintain the ethics and discipline of journalists as set out in this Act and any other relevant law; (j) do all matters that appertain to the effective implementation of this Act. (k) compile and maintain a register of journalists, media enterprises and such other related registers as it may deem fit; and (l) conduct an annual review of the performance and the general public opinion of the media, and publish the results thereof in at a least two local newspapers.

The MCK and its functions present the best form of self-regulation Kenyan media has attained so far.

It, however, remains to be seen how effective MCK will be in practice. There are notable structural flows in all media councils, especially the old boy mentality and inordinate gestation periods for decisions on complaints (Pritchard 2000).

Member of the Media Council are persons drawn from the media itself, but the diversity of representation makes it difficult for one view to predominate. Its membership comprises of: two Kenya Union of Journalists; three from the Media Owners Association; one person nominated by the

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Law Society of Kenya; one person nominated by the Editor’s Guild of Kenya; two persons nominated by schools of journalism or recognised universities, one representing public universities and the other representing private universities; one person nominated by the Kenya Correspondents Association; one person nominated by the Public Relations Society of Kenya; one person nominated by the Kenya Institute of Mass Communications; and one person nominated by the Kenya News Agency. In this equation, neither the government, nor the media owners enjoy full control.

The Act establishes a Complaints Commission in Section 23 of the Act. Section 26 of the Act says in sub-section (1): Any person aggrieved by (a) Any publication, or any conduct of a journalist media enterprise or the Council; or

(b) Anything done against a journalist or media enterprise that limits or interferes with the Constitutional freedom of expression of such journalist or media enterprise, may make a written complaint to the Council setting out the grounds for the complaint, nature of the injury or damage suffered and the remedy sought.

Once received by the Council, the complaint is referred to the Complaints Commission which, upon hearing, may dismiss the grievance or order an offending party to publish an apology and correction. It may also issue a public reprimand of the offending journalist or media house.

The provision of the Act that “a decision of the Complaints Commission, or the Council, against which no appeal has been preferred within thirty days from the date on which the decision was made shall be adopted and enforced as an order of Court” gives clout to the council in its execution of its functions.

Section 5 of the Media Council of Kenya Act stresses that the Council “shall operate without any political or other bias or interference and shall be wholly independent and separate from the government, any political party, or any nominating authority.”

The goals, functions and set up of the current media council are such that it fulfils the definition of the statutory council mentioned in the constitution. Yet there appears to be forces intent on changing the Media Council law. In 2010, the government published a Media Bill whose aim was to fulfil the requirement stipulated in article 34 (5) of the 2010 Constitution.

Among the changes that the Bill introduces are that the Media Council should be independent from “any commercial enterprise or enterprises.” It also seeks to change direct nomination procedures for council members in order to make the process more democratic and to adhere to Article 34 (5) (b) of the Constitution which provides that media council shall “…reflect the interests of all sections of the society.” Instead of the 13 members of the current council, the Bill proposes a council of seven members to be appointed by the Chief Justice on advice of the Judicial Service Commission and representatives of Media Owners, Kenya Union of Journalists, the Ministry of Justice, National Cohesion and Constitutional Affairs, the State Law Office and the Editors Guild of Kenya.

The proposed Bill appears to give more preference to the government to appoint media council members and it also disenfranchises media professionals and institutions that the council is supposed to regulate. There is very real possibility that the council will be packed with nonjournalists and this will have the effect of making journalism the only profession in the country that

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is regulated by people who come from other professions. It should also be remembered that Chief Justice and the Judicial Service Commission are representatives of the Judiciary, one of the branches of government that the media is supposed to watch.

However, there are those who feel that establishing a statutory media regulator as provided for in the 2010 Constitution goes against some international and regional standards (Open Society Foundation 2011). Clause 9 of the Declaration of Principles on Freedom of Expression in Africa for instance states as follows: “Any regulatory body established to hear complaints about media content, including media councils, shall be protected against political, economic, or any other undue interference. Its powers shall be administrative in nature and it shall not seek to usurp the role of courts.”

The danger is that the government might use the opportunity provided by the constitutional demand for new law to design and impose its will on the proposed statutory regulatory body. Media owners are keen to change the present council. Perhaps the best option would be to leave it the way it is.

The guarantee of media freedom in the Constitution is a very significant victory for the media in Kenya after many years of enduring constraints both legal and non-legal. It is now up to the media to fight for the removal of non-legal constraints such as ownership influence, commercialization, audience pandering, and general timidity deriving from the legacy of oppression.

An important observation that can be made regarding free expression and media freedom in relation to the new Constitution is that the Bill of Rights imposes duties, not just rights, on the part of the state and individuals. Article 24 on the limitation of Rights and Freedoms states as follows: A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including – (a) (….) (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others….

This is an important provision in the context of liberalised media freedom as it recognized that freedom goes hand in hand with responsibility.

Prevailing media laws and regulations The constitutional provisions outlined above will have to be supplemented with new laws to be enacted by parliament to repeal a plethora of laws still in the books which can greatly and negatively impact media practice. These laws include the following: •

The Official Secrets Act of 1970 (Cap 187): This anachronistic law allows the government to operate secretively and is the greatest obstacle to freedom of information.

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54

•

Films and Stage Plays Act of 1972 (Cap 222): This law creates a censorship board with broad powers, including the right to censor all material offered for public entertainment. It also bars the making of film in Kenya without licence from the ministry of information and broadcasting.

•

The Kenya Communication Act of 1998 (Cap 2) and the Kenya Broadcasting Corporation Act (Cap 221): These two laws need to be harmonised to establish a onestop centre for applicants of broadcasting licences.

•

Books and Newspapers Act of 1962 (Cap 111), updated as The Statute (Miscellaneous Amendment Act, 2002): This law, which established hefty bond fees for publishers, needs to be changed to allow the establishment of more media outlets.

•

The Defamation Act of 1972 (Cap 36) as amended by Statute Law (Miscellaneous Amendment) Act No. 12 of 1992: This law introduced hefty damages for libel that have resulted in a chilling effect on free expression.

•

The Preservation of Public Security Act of 1967 (Cap 57) and all subsequent amendments which gives the President powers to censor, control, or prohibit the communication of any ideas or information and their dissemination.

•

The Penal Code of 1960 (Cap 63) whose Section 66 prohibits publication of any statement, rumor, or report that may cause fear and alarm to the public or disturb the peace. Section 194 to 199 of the Penal Code also criminalises defamation, contrary to modernising trends in law that conceive defamation purely as part of civil law. Other sections of this omnibus law confer special status to foreign dignitaries, making it difficult for the media to criticise them.

•

The Police Act of 1968 (Cap 84), which empowers police commanders to control and direct the extent to which music or human speech or any other sound may be amplified, broadcast, relayed, or reproduced by artificial means.

•

The Armed Forces Act of 1953 (Cap 205 – Protected Areas), which prohibits access to military installations and operational zones. Inaccessible areas of military operation means that no one can scrutinise what goes on, a very serious anomaly given that some of the operational zones are in inhabited areas.

•

Special Districts Administration of 1960 (Cap 105), through which provincial administrators are empowered to restrict the movement of an individual conducting himself “so as to be dangerous to peace and good order.”

•

The National Cohesion and Integration Act 2008. It is an offence under Section 62 of this law for a person to utter words “intended to incite feelings of contempt, hatred, hostility, violence, or discrimination against any person, group or community on the basis of ethnicity or race.” It imposes a punitive penalty of up to Ksh1 million or five years imprisonment or both. Clearly, this is an overly broad and trawling law which can result in a chilling effect on journalists. The application of this law could also result in prior restraint instead of the preferable post publication punishment.

Media Regulation in Kenya

Conclusion The Kenyan media scene and free expression climate has come a long way since the colonial days when liberty was reserved for white settlers and natives were prohibited from expressing themselves. Kenya is now a free country going by the constitutional guarantee of media freedom and expressive freedoms in general. But this freedom was not granted on a platter. It could very well be taken away. Only eternal vigilance can guarantee sustained freedom, particularly in a situation where sources of threat keep changing. In the past, threats were posed by governments; today, threats emanate from media concentration that often results in view point discrimination. Threats also come from media illiterate audiences, hence the need to inform media audiences more than entertain them all the time.

Constitutional intentions are therefore not enough. The government must enable citizens to enjoy that freedom (Kibwana 1990: 42). It can do this by ensuring universal literacy, access to media, and equitable distribution of public resources such as frequencies. It is clear from the recent Constitutional change that Kenya wants to not only become a democratic state but also to deepen that democracy. A fully functioning democratic government cannot exist without the contribution of a free and independent media that is well regulated to ensure that it executes its mandate without infringing upon the rights of others unless on very good, justifiable causes.

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References Abuoga, John and Absalom Mutere, 1988. The History of the Press in Kenya. Nairobi: ACCE. Beachey, R. W., 1996. A History of East Africa 1592–1902. London: Tauris Academic Studies.

Berman, Bruce, J and Lonsdale, John, M, 1998. The Labors of “Muigwithania:” Jomo Kenyatta as Author, 1928-45. Research in African Literatures. Vol.20. No1: 16-42 Colonial Office, 1960. Historical Survey of the Origins and Growth of Mau Mau(Corfield Report). London: HMSO Colonial Office, 1950. Report of the Committee of Inquiry into the Information Services. Nairobi: Colony and Protectorate of Kenya CPJ (Committee to Protect Journalists) 2000. Africa 2000 Report: Kenya.

CPJ (Committee to Protect Journalists) 2002. Africa 2000 Report: Kenya.

Dixon, David, N, 1997. “Press Law Debate in Kenya: Ethics as Political Power.” Journal of Mass Media Ethics. Vol.12, No.3. 171–182 (E.A.P.G.) East African Protectorate Government, 1897. Orders and Regulations, Vol. 1., Regulations No 1, Mombasa. East African Protectorate Government.

(E.A.P.G.) East African Protectorate Government, 1898. Orders and Regulations, Vol. 1., Regulations No 1, Mombasa. East African Protectorate Government.

(E.A.P.G.) East African Protectorate Government, 1899. Orders and Regulations, Vol. 1., Regulations No 1, Mombasa. East African Protectorate Government.

Gadsden, Fay, 1980. “The African Press in Kenya, 1945-1952,” The Journal of African History 21, no. 4: 515–535.

Ghai, Y.P., and McAuslan, J.P.W.B, 1970. Public Law and Political Change in Kenya: A Study of the Legal Framework of Government from the Colonial Times to the Present. Nairobi: Oxford University Press.

GRET (Groupe de recherche et d’échanges technologiques). 2001. Media Status Report: Kenya.

Human Rights Watch, 2002. Kenya’s Unfinished Democracy: A Human Rights Agenda for the New Government. New York: Human Rights Watch (HRW).

Kabukuru, Wanjohi, “Is the Kenya Media Its Own Worst Enemy?” New African, June 1, 2006, 8–20.

Kadhi, Joe, 2005: “Goliath in Kibaki’s rule whips David the media.” The Media Observer: Newsletter of the Media Council of Kenya. Issue 2, September 2005: 1, 12, 16.

Kenya Law Reports, Laws of Kenya: The Constitution of Kenya (Revised Ed. 2010), National Council of Law Reporting, http://www.kenyalaw.org/Downloads/The%20Constitution%20of%20Kenya.pdf (Accessed on 28th

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February 2012) Kenya Law Reports, The Kenya Media Act 2007, http://www.kenyalaw.org/kenyalaw/klr_app/frames. php (accessed 28th February 2012) Kenya Law Reports, Laws of Kenya: The Constitution of Kenya (Revised Ed. 2008(2001), National Council of Law Reporting, http://www.kenyalaw.org/family/statutes/ (Accessed on 5th March 2012) Kibwana, Kivutha 1990. Fundamental Rights and Freedoms in Kenya. Nairobi: Oxford University Press Lamb, David, 1982. The Africans. New York: Random House.

Loughran, Gerard, 2010. Birth of a Nation. London: I. B. Taurus & Co Ltd Nyamora, Pius, M, 2007.The role of alternative press in mobilization for political change in Kenya 19821992: Society magazine as a case study. MA Dissertation: University of South Florida.

Makali, David, 2003. Media Law and Practice. Nairobi: Phoenix Publishers.

Odhiambo-Mbai, C., 2003: “The Rise and Fall of The Autocratic State in Kenya,” in Oyugi, O Walter, Peter Wanyande and Odhiambo-Mbai, C., (eds.): The Politics of Transition in Kenya: From KANU to NARC. Nairobi: Heinrich Boll Foundation.

Mbeke, Oriare Peter, 2010. Mass Media in Kenya: Systems and Practice. Nairobi: The Jomo Kenyatta Foundation.

Ogot, Bethwell, 1981. A Historical Dictionary of Kenya. Metuchen, NJ: The Scarecrow Press.

Open Society Foundations 2011. On Air, Kenya: A Survey. Nairobi: Open Society for Eastern Africa Pember, Don R and Clay Calvert, 2008: Mass Media Law. Boston: McGrawHill.

Pritchard, David, 2000. Structural Flaws in Press Council in Pritchard, David (ed) Holding the Media Accountable: Citizens, Ethics and the Law. Bloomington: Indiana University Press Semetko A.H. 2008, Election campaigns, balance, and the mass media, http://www.hks.harvard.edu/ fs/pnorris/Conference/Conference%20papers/Semetko%20Election%20campaigns.pdf (accessed 2nd March 2012) US Department of State 2002: Country Reports on Human Rights Practices – Kenya. Bureau of Democracy, Human Rights, and Labor.

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Regulatory Agencies Media Council of Kenya Ground Floor, British American Insurance Centre, Mara/Ragati Road Junction, Upper Hill P.O. Box 43132 GPO 00100, Nairobi, Kenya.

Telephone +254 20 2737058, 2725032 Mobile +254727735252 Fax +254 20 2737058 Website http://www.mediacouncil.or.ke Communications Commission of Kenya (CCK) Waiyaki Way P.O. Box 14448 Westlands 00800 Westlands NAIROBI, Kenya Tel: +254-20-4242000, 20- 2441081/2/3/4, 20-2672553/6/7 Mobile +254-703042000 +254-727531278 Fax: +254-20-4451866 / 4242207 Email: info@cck.go.ke Ministry of Information and Communications Teleposta Towers, Kenyatta Avenue P.O. Box 30025 GPO 00100 Nairobi Kenya +254 (20)04920000 ICT Board Telposta Towers, 12th floor, Kenyatta Ave P.O. Box 27150- 00100 +254-20-2211962 +254-20-2211960, 2089061 Kenya communications@ict.go.ke http://www.ict.go.ke

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From Genocide to Freedom Media Regulation in Rwanda

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From Genocide to Freedom

Before the Colonial Era Before colonialism, Rwandans had their own way of transmitting information. They referred to these methods as ‘traditional media’ or ‘ancestors media’. They would transmit information through words or traditional instruments. It was easy for them to know how their country was ruled, and they could easily get and follow instructions and rules from the king. When a king died, the whole population was informed and in case of an outside attack, the country was directly defended.

That kind of traditional media was based on transmitting words from person to person. One person could hear news and transmit it to another and so on, until the news was spread across the whole land.

But, this kind of media had some disadvantages. The information could, for instance, be distorted or exaggerated.

Apart from oral transmission of information, Rwandans also used traditional instruments, such as drums, horns, and flutes. For instance, when a king died, the drum was beaten in a special way which made people know what happened. When hunters succeeded, the horn was blown. In case of an attack being prepared, a drum called impuruza was sounded and the sound of a flute meant there was a night talk around the fire.

During and after the colonial era In the colonial period between 1885 and 1918, the Germans were reluctant to introduce the press in Rwanda. It was other experts like the White Fathers, the African missionaries of Cardinal Lavvigerie established at Save from 1900 and later to Zaza, then the Lutheran pastors in 190711, who took the initiative after literacy levels started to increase. The Germans and other foreign colonisers at the time were not interested in starting newspapers as they believed there were no potential readers.

In 1932, the White Fathers started the Kabgayi Printing Press to boost missionary schools that raised literacy levels. The Roman Catholic Church later started a newspaper, Kinyamateka, whose first issue rolled out of the Kabgayi Press on September 1, 193322, marking the birth of the Rwandan press.

The paper written by Rwandans. The Protestants introduced their press in 1938 and published their papers, L écho de séminaire in 1938 and L’ami, paru in 1945.

In the 1950s, politicians introduced their own paper, Imvaho, which dominated the local readership and was an equivalent of the French La Relève. It was also in this period that the ORINFOR (office Rwandaise de l’information) was established under the direction of the President of the Republic of Rwanda.

The evolution of the press legislation in Rwanda also dates back in to the colonial period. In this period, the Belgian colonial authorities did not impose any law over the press in Rwanda, until 1908 when a colonial charter modelled on the Belgian constitution was introduce to Rwanda and Burundi.

In the last years of colonisation, the press evolution was characterised by the presentation and defence of political programmes derived from the declaration of the Belgian Government in 1959 on press matters33.

In the Republican period, the press legislation, which borrowed heavily from colonial tradition, became incompatible with the social and political situation of an independent country. The legislation was put in place for security reasons of the colonisers, necessitating a modification to suit the current situation.

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In 1978, a law on the press was drafted by ORINFOR with the help of a panel of international lawyers.

The law, which came into force on November 15, 199144, seemed to target the private press and the multi-party system. The law no.54/91 major loophole in the law was the curtailing of free expression.

Neither the lawyers nor the media professionals discouraged the authorities from adopting the law.55.

By 1993, there were more than 60 newspapers owned by politicians out to push their political agenda.

There was, truly, a free media, but this freedom was abused when leaders decided to sow sectarianism and ethnic divisions among people through the government media. The notorious Radio Libre de Mille Collines (RTLM) came in just to make the sparkle fly.

The RPF-owned radio, Muhabura, was an important development in the growth of media in Rwanda.

The radio aired constructive programmes and critiqued and condemned the Rwandan leadership in equal measure. Whereas Muhabura Radio was urging people to join in the struggle to liberate the country, other stations, such as Radio RTLM, were busy sowing seeds of conflict among Rwandans and were pursuing sectarian political interests.

Private media was even worse. All newspapers were were literally serving as mouthpieces for various political factions. For instance, in 1990, the Kangura newspaper published an article outlining 10 antiTutsis rules that Hutus were supposed to follow (amategeko 10 y’abahutu).

RTLM was specifically set up to incite and help people implement the genocide, and it succeeded because whoever was finger-pointed by RTLM was meant to die.

It is after the 1994 genocide that the law governing the press came under serious scrutiny. It was ratified by the National transitional Assemble in 2002 and was amended in 2009.

Rwanda now boasts one of the fastest growing economies in Africa with a modernising ICT. It has the largest women parliamentary representation in the world. Its constitution guarantees all people their God given rights.

The government driven Vision 2020 clearly draws the roadmap to turning Rwanda into a first class economy, assuring health, water, food and shelter for all its citizens.

After the genocide, the Government of Rwanda took a strong stance in combating discrimination, in particular ethnic based discrimination. Article 9 of the Constitution commits the Government of Rwanda to “fighting the ideology of genocide and all its manifestations, eradication of ethnic, regional and other divisions and promotion of national unity”.

Laws were enacted, for example Law No 47/2001 to punish crimes of discrimination and sectarianism. Institutions such as the National Unity and Reconciliation Commission, the National Commission for the Fight against Genocide, and Gacaca Courts were established to promote unity and address ethnic hatred and division.

Ethnic identity has been part and parcel of the history of Rwanda. In 1935, the Belgian colonial administration formally introduced a national identification system based on ethnicity. Subsequent governments exploited this practice and deepened ethnic divisions, which culminated in the 1994 genocide.

The removal of ethnic reference in all official policy documents, identification, in public discourse and other platforms was an attempt to reconcile and unite Rwandans and build a national identity.

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Freedom of expression and press Articles 33, 34, 35 and 36 of the Rwandan Constitution provide for and guarantee the freedom of expression, press freedom, freedom of association and of assembly.

The exercise and enjoyment of these freedoms, however, are restricted under conditions set by law. Citizens are free to express their thoughts and opinions and criticise government policies in as much as these views do not propagate discrimination of any form.

Freedom of the press and freedom of information are provided for by the Constitution, however, they “shall not prejudice public order and good morals, the right of every citizen to honour, good reputation and the privacy of personal and family life”.

Journalists have been arrested, charged, or fined by the Courts for publishing stories alleging extramarital affairs of senior government officials, which is interpreted as an invasion of privacy.

Some journalists argue that these provisions were a contradiction of the Leadership Code of Conduct (organic law No 61/2008 of 10/09/2008) for public officials requiring exemplary behaviour and accountability.

Given the involvement of the media in the genocide as indicate earlier, the relationship between the state and media has been characterised by distrust. The Government often accuses the media of bias and unprofessional conduct. The independent newspapers accuse the State of intimidation and undermining press freedom.

A new media law was enacted in 2004 and the High Council of the Press (HCP) established to regulate the media. They are positive steps to build an environment in which the press can flourish but in a responsible and professional manner. Like other societal actors, the media is called upon to promote unity and reconciliation and to refrain from statements, which might promote divisions and discrimination.

Provisions in the new law give the Media High Council immense powers. They range from the power to suspend newspapers; increase the capital required to set up new media outlets; impose criminal penalties on journalists who incite discrimination or show contempt to the president; and require journalists to reveal their sources.

The law also requires journalists to have either; an associate’s degree in journalism or communication; a certificate obtained from an institute of journalism and communication; or a university degree in another field with training in journalism. Journalists without one of these qualifications must obtain them within five years to remain in practice.

Critics argue that some provisions in the new law inhibit rather than promote press freedom.

Licensing fees are said to be prohibitively high, discouraging small media. Revealing sources of information and criminalisation of libel remain thorny issues.

The shadow report prepared by Fact Rwanda in 2009 on African Charter on Human and Peoples’ Rights argues that article 13 (1) of the current Media Bill which forbids a journalist from using prohibited means to collect and disseminate information, conflicts with article 16 of the same law.

Article 16 outlines the freedom of a journalist to express his ideas and opinions, including the freedom to collect and disseminate information using different means6.

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Despite an environment that is relatively restrictive, Rwanda has recorded an unprecedented growth of the press and media outlets since 1994. There are about 67 newspapers, journals and publications both private and government-owned. However, fewer than 20 publish regularly. The most prominent include Imvaho Nshya, The New Times, La Nouvelle Releve, Umuseso, Umuvugizi, Rushyashya, Ingabo Magazine, Umusingi, Rwanda News Agency, Focus and Grand Lacs Hebdo.

The relationship between the government and the media has greatly improved. There is regular sharing of information through monthly presidential press conferences, and weekly press conferences by the Ministry of Information.

The government is keen to enhance communication and information of its activities to the public.

An annual national dialogue conference “Umushyikirano”, brings together Rwandans from all walks of life. It assembles government ministries, district mayors, grassroots leaders, Rwandans in the Diaspora and development partners. They gather in the Parliament to debate policy issues and interrogate leaders. The event is broadcast live on television and radio. Members of the public are given a toll free line on which to call or send text messages airing their views.

However, the biggest empowerment of citizens will come through passing an “Access to Information Act”. A bill is in the process of adoption and the resultant law will consolidate democratic gains achieved so far.

Independent newspapers, such as Umuseso and Umuvugizi freely express views critical of the Paul Kagame leadership. They frequently challenge some government policies. Some journalists, however, exercise self-censorship in order to get government advertisements to survive in the business.

After the genocide, there was a growth in private radio. Apart from the government-owned Radio Rwanda, there are six community; five religious; one university; and six independent FM radio stations. They are important channels of information and mechanisms of accountability. Through popular call-in shows, citizens have been able to express their views and hold leaders to account.

Foreign media groups such as the Voice of America, BBC and Deutsche Welle, also thrive in Rwanda.

The press freedom needs to be consolidated through enhanced professional standards, capacity building among journalists, restoration of public confidence in the media and further investments in the industry.

Broadcasting licence fees charged by the MHC are as follows: 1) National Commercial TV stations : 10,000,000 Rfw 2) National Commercial Radio stations : 5,000,000 Rfw 3) Regional Commercial TV stations : 6,500,000 Rfw 4) Regional Commercial Radio stations : 3,000,000 Rfw 5) Regional Non Commercial TV stations : 5,000,000 Rfw 6) Regional Non Commercial Radio stations : 1,500,000 Rfw 7) Community Commercial TV stations : 3,000,000 Rfw 8) Community Commercial Radio stations : 1,000,000 Rfw 9) Community non commercial TV stations : 2,000,000 Rfw 10) Community non commercial Radio stations : 500,000 Rfw Publishers of newspapers and magazines are not charged any fee in Rwanda.

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PROFILE OF MEDIA HIGH COUNCIL OF RWANDA The Media High Council (MHC), established in 2003, is a public institution whose main responsibilities are to ensure development of a sustainable and professional media in Rwanda, promote and protect media freedom and regulate the media by ensuring respect of the law and professional code of ethics in Rwanda. It derives that capacity from articles 34 and 73 of the Constitution of the Republic of Rwanda. While the 2002 media and MHC laws had made it more of an advisory organisation, the August 2009 media law and November 2009 MHC law which amended and replaced the 2002 laws, broadened its mandate and it became a decision-making institution taking up some of the roles previously under the Ministry of Information.

Formerly known as the High Council of the Press (HCP), MCH is managed by a seven-member board of directors - the highest decision making organ, and an executive secretariat in charge of running and managing the MCH’s daily activities. The board is made up of two representatives of the private media, one from the public media, one from the civil society, a representative of the private sector and two of the central government. The secretariat is headed by an executive secretary appointed by the Prime Minister. This organ has three administrative units, namely: administration and finance, professional and media development, and the licensing and media regulation unit.

The MHC is responsible for: 1) Promoting and protecting media freedom and ensuring media development in general; 2) Ensuring respect of the law and professional ethics in print and broadcast media as well as the internet; 3) Issuing licences for the establishment of media organs; 4) Deciding on temporary suspension of operating licence for media organs as provided for by the media Law; 5) Accrediting journalists or revoking the accreditation; 6) Ensuring that media organs abide by the country s culture; 7) Playing a role in the formulation of the national media policy; 8) Ensuring that the media acts as a catalyst for national development; 9) Ensuring that the media serves as catalyst to the promotion of unity among Rwandans; 10) Monitoring whether political organisations and coalitions of political organisations enjoy equal access to public media during electoral campaigns; 11) Establishing regulations governing programme content and coverage of electoral campaigns by the public media; 12) Ensuring that public media organs give equal coverage to various election-related news; 13) Establishing a charter specifying duties and rights of broadcast media organs; 14) Playing a role in determining the cost of broadcasting frequencies; 15) Establishing guidelines on advertising in the broadcast media; 16) Playing a role in the capacity building of journalists; 17) Advocating for the general development of the media and participating in soliciting for basic equipment for journalists; 18) Advocating for journalists to access information sources; 19) Supporting journalists to establish a journalism code of ethics and deontology in Rwanda; 20) Determining the format of the press card;

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21) Assisting journalist in instituting guidelines governing their conduct and journalism profession in Rwanda; 22) Determining the mode through which one oral or audiovisual media organ can broadcast programmes of another oral or audiovisual media organ; and 23) Establishing regulations governing the protection and regulation of the media and publishing them in the Official Gazette of the Republic of Rwanda.

The Media High Council (MHC) Media High Council (MHC), Avenue de la Revolution P.O. Box 6929 - Kigali Tel: (+250) 570333/4 E-mail: info@mhc.gov.rw www.mhc.gov.rw

MEDIA REFORMS IN RWANDA Key milestones Since March 30, 2011, the government has reached eight key decisions on the media, which are: 1.

A new media policy.

2.

Six media related laws (RBA, Media law, MHC law, Access to Information law, RURA and ICT) are expected to receive Parliamentary approval in due course.

3.

Creation of a self-regulatory mechanism by the media fraternity is in advanced stages.

4.

MHC’s new role of media development and industrial advocacy will boost progress.

5.

RURA as the new media regulator will soon engage journalists on suitable regulatory modalities.

6.

ORINFOR transformation from state to public broadcaster is on-going.

7.

Discussions between Government and development partners on how best to support the media reform process are also in progress.

8.

The establishment of the Office of Media Development for better reform coordination.

Conclusion Despite the bloody chapter that marked the genocide period in Rwanda, the Rwandan media is slowly finding its footing of stability. It is hoped that the experience that informed our history will help create a more vibrant, progressive and responsible media for this beautiful African nation.

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References

6.

1.

State of the Union Rwanda Report 2010; Study to edit and monitor compliance and implementation of protocols, conventions, decisions and best practice standards of the African Union member states

2.

www.stateofunionafrica.net

3.

The Constitution of the Republic of Rwanda of 2003, as amended to date

4.

Organic Law No.02/2004 of 20/03/2004 Determining the Organization, Powers and Functioning of the Superior Council of the Judiciary.

5.

Amnesty International (AI). August 2004. Rwanda: The Enduring Legacy of the Genocide and War. www.amnesty.org/en/library/info/AFR47/008/2004 [accessed 10 April 2010]

Fact/ Rwanda (2009). International Convention on the Elimination of All Forms of Racial Discrimination. Shadow Report

1 A.BART,la press au Rwanda production,deffussion et lecture depuis la début du siècle,thèse de doctorat de 3ème cycle,Paris,université de bordeaux,1982,p.215.

2 Compte rendu analytique du 26/02/1955,cité par BERLAGE. 3 A.BART,ibid.,p.1 4 Law n°.54/91 of 15/11/1991 on the press,O.G.n° of 01/12/1991.

5 6 Fact- Rwanda. 2009. African Charter on Human and Peoples’ Rights: Shadow Report. P 14 It should be noted that although this shadow report was prepared by Fact/Rwanda, several CSO in the human rights domain contributed to its production.

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Introduction

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