Media observer january march 2014

THE MEDIA

BSERVER

A PUBLICATION OF THE MEDIA COUNCIL OF KENYA

JANUARY - MARCH 2014

Media Freedom Versus Public Interest

Media in Kenya More Lapdog Than Watchdog?

THE MEDIA OBSERVER JANUARY - MARCH 2014

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About Us

The Media Council of Kenya is an independent national institution established by the Media Council Act 2013 for purposes of setting of media standards and ensuring compliance with those standards as set out in Article 34(5) of the Constitution and for connected purposes.

Vision

A professional and free media accountable to the public.

Mission

To safeguard media freedom, enhance professionalism and arbitrate media disputes.

Council’s Role, Mandate, Functions and Authority The Council draws its mandate and authority from the Media Council Act 2013.

Its functions are to: • Promote and protect the freedom and independence of the media; • Prescribe standards of journalists, media practitioners and media enterprises; • Ensure the protection of the rights and privileges of journalists in the performance of their duties; • Promote and enhance ethical and professional standards amongst journalists and media enterprises; • Advise the government or the relevant regulatory authority on matters relating to professional, education and the training of journalists and other media practitioners; • Set standards, in consultation with the relevant training institutions, for professional education and training of journalists; • Develop and regulate ethical and disciplinary standards for journalists, media practitioners and media enterprises; • Accredit journalists and foreign journalists by certifying their competence, authority or credibility against official standards based on the quality and training of journalists in Kenya including the maintaining of a register of journalists, media enterprises and such other related registers as it may deem fit and issuance of such document evidencing accreditation with the Council as the Council shall determine; • Conduct an annual review of the performance and the general public opinion of the media, and publish the results in at least two daily newspapers of national circulation; • Through the Cabinet Secretary, table before Parliament reports on its functions; • Establish media standards and regulate and monitor compliance with the media standards; • Facilitate resolution of disputes between the government and the media and between the public and the media and intra media; • Compile and maintain a register of accredited journalists, foreign journalists, media enterprises and such other related registers as it may consider necessary; • Subject to any other written law, consider and approve applications for accreditation by educational institutions that seek to offer courses in journalism; and • Perform such other functions as may be assigned to it under any other written law.

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Contents:

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Contents Press Freedom and the Bottom-Line ............................................................................................ 5 Media Council Tables Findings on Westgate Coverage ................................................................ 6 Complaints Commission Reaches out to Media Houses ............................................................... 7 Media Freedom Anchored in Law, But ........................................................................................ 8 When Kenya was Almost in the Lead ........................................................................................ 11 Absolute Freedom for the Press? .............................................................................................. 14 It’s Not the Same Again, And this is Why .................................................................................. 16 When Public Interest Competes with Business Interests ............................................................... 19 We Act in Public Interest, Really? .............................................................................................. 22 The Hard Reality ..................................................................................................................... 24 Time to Reflect on Westgate Siege ............................................................................................ 26 Are Kenyan Media Mere Lapdogs? .......................................................................................... 28 Is Community or Religious Broadcasting in the Public Interest? ................................................... 31 Is Your Voice Heard Loud Enough? .......................................................................................... 34 Your Right to Throw a Punch Ends Where My Nose Begins ......................................................... 37 The Challenges and Way Forward in Reporting Terror ................................................................ 40 The Discontents and Anxieties of Social Media.......................................................................... 43 THE MEDIA OBSERVER JANUARY - MARCH 2014

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The Media Observer is published quarterly by the Media Council of Kenya with assistance from Ford Foundation. The views expressed in articles published in this publication are those of the writers and do not necessarily reflect those of the Media Council of Kenya.

BSERVER

Media Council of Kenya

Editorial Board

Contributors

Photo Credits

P. O. Box 43132 - 00100 Nairobi, Kenya Tel: (+254 20) 2737058, 2725032 Cell: +254 727 735252 Email: info@mediacouncil.or.ke

Joseph Odindo Mitch Odero Levi Obonyo Martha Mbugguss Otsieno Namwaya

Anne Mbotela Ben Sihanya Dorothy Kweyu Erick Ngaira George Nyabuga Jerry Abuga Joe Kadhi John Gachie Joseph N. Nyanoti Julie Masiga Mwenda Njoka Othieno Nyanjom Peter Mwaura Stephen Ndegwa Tom Olang’ Victor Bwire

Moses Omusula

Consulting Editor Gathenya Njaramba

Editorial Team Chief Executive Officer Haron Mwangi

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THE MEDIA

Editorial Coordinators Victor Bwire Jerry Abuga

THE MEDIA OBSERVER JANUARY - MARCH 2014

Jerry Abuga

Design & Layout Brett Communications Limited Tel: 020 4453730 Email: info@brettcom.net Website: www.brettcom.net

Word from the CEO Press freedom and the bottom-line

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n today’s highly competitive world, profit has become an important factor in nearly all endeavours.

All entities, including non-governmental organisations (NGOs) have joined the ranks of those craving for income, even just to meet operational costs.

The public service media has not been left behind. Media outfits like the Kenya Broadcasting Corporation (KBC), the British Broadcasting Corporation (BBC) and even the Voice of America (VoK) have been forced to seek some sort of revenue. The money received from the Government and other sponsors can hardly meet all their expenses. For a long time, government backed media houses had no impetus to lure advertisers. They were independent of commercial interests, and their mission was strictly to serve the public interest(s). This has gradually changed with the silent entry of advertisers.

The private media on the other hand, are largely commercially driven, hence the constant debate over content published or aired versus the public interest. The case for media law then sets in where stakeholders are currently debating whether statutory or self-regulation should be the way to go. Now, the big question is this: Have commercial interests compromised freedom of the press? In this issue of The Media Observer, analysts and veteran journalists will interrogate the profession, especially with regard to the Code of Conduct for the Practice of Journalism in Kenya and social responsibility. The writers discuss the status of media freedom in Kenya, its importance in protecting the public interest, adherence to media ethics and professionalism. This discourse also involves self-evaluation as practising journalists probe their conduct and that of Kenyan media houses.

Veteran scribe, Peter Mwaura, argues here that Press freedom is essential for any democracy. He writes that without press freedom, it would be hard to fight social ills such as corruption, abuse of office and bad governance. But should the media enjoy absolute freedom? Media scholar, Othieno Nyanjom delves into what happens when the public interest begins competing with business interests. He speaks about how the media deals with the tension between the two and reveals what strong journalism is and what it should be. Tom Olang’ explains what constitutes media freedom. He argues rightly, that those in authority should support a reasonably free Press for the collective good of the public. Journalist Anne Mbotela investigates whether the media has given Kenyans a voice. She argues that a good media should allow a people to talk to themselves. Media consultant John Gachie takes on our media houses, asking whether majority of them are not mere merchandising tools for the advertising industry. Senior editor Julie Masiga weighs in with the question: Is community or religious broadcasting in the public interest? She argues that any freedoms citizens claim individually and society claims as a whole, must be tempered by a strong regard for the rights of others.

Former journalist and now Communications Director at the Ministry of Interior and Co-ordination, Mwenda Njoka, enumerates the challenges and the way forward in coverage of insecurity, especially terror.

He writes that Kenyans are facing the choice of the right to know versus the right to security. Senior editor Dorothy Kweyu asks yet another critical question: Are the Kenyan media mere lapdogs? What are their credentials as regards their watchdog role? She writes that journalists must first define their fidelity to the Constitution.

Veteran journalist, now lecturer, Joe Kadhi, goes down memory lane to the days when Kenya was ‘almost’ on the frontline of those protecting media freedom. These and more inspiring thoughts are waiting for you in this issue. And as always, enjoy the debate. Should we prick your sensitive or even funny bone as you read this issue, do share with us your thoughts. Welcome!

Haron Mwangi Chief Executive Officer & Secretary to the Council

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information being relayed as well as challenges of live coverage and gatekeeping of information before airing. Similarly, there were challenges of social media platforms as alternative sources of information about the incident”, reads the Media Council report.

The report also revealed that contradictory information between government and humanitarian aid agencies aided to inaccuracies in reporting.

Journalists were also found to report with disregard for personal safety as most lacked protective gear and training on how to tackle the challenges of covering terrorist attacks. “Some of the reporters were traumatised and shocked and received no counselling after the incident”.

The Chief of Defence Forces General Julius Karangi who spoke at the event urged the media to refrain from magnifying the threat of terrorism as that causes fear among the people. “The media should assist security forces in allaying fears and manage terrorist acts”, he said. General Karangi urged the Media Council of Kenya to remain steadfast in ensuring media adherence to professional ethics.

The Chief of Kenya Defence Forces General Julius Karangi speaking at the Westgate Coverage Report Launch.

Media Council Tables Findings on Westgate Coverage

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Media Council of Kenya media monitoring report on the coverage of the September 21, 2013 Westgate shopping mall terror attack faulted the media for breaches to the Code of Conduct for the Practice of Journalism.

The report findings released on 7th February 2014 at a Nairobi hotel revealed that 70 percent of the respondents felt that media failed to ask hard and most critical questions of the attack of historical, cultural and social explanation of terrorism and instead focused on dramatic, most violent, bizarre, tantalising and brutal accounts of the attack magnifying the impact of their horrifying brutality.

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Jerry Abuga

The report noted breaches in observing the professional obligations of journalists as required by Code of Conduct for the Practice of Journalism in Kenya and social responsibility in commenting on public issues and limitation to freedom of expression on national security grounds.

Some of the ethical violations noted included: Article 14 on Intrusion Into Grief and Shock, Article 9 on Obscenity, Taste and Tone of reporting, Article 20 on the Use of Pictures and Names.

“There was dilemma between telling the truth by relaying gruesome images and withholding information from the public. In some instances there was lack of verification of accuracy and reliability of

Defence Cabinet Secretary Raychelle Omamo advised journalists not to “treat the fight against terrorism as a soap opera”.

The Principal Secretary in the Ministry of Information, Communications and Technology Mr Joseph Tiampati lauded the release of the findings, saying it coincided with the development of a Crisis, Emergency and Risk Communication Manual that will provide a framework on how institutions manage information in the event of catastrophes.

The report recommended that the media should refrain from sensational stories, bloody photographs, panicky headlines, use of inflammatory catchwords, and from needless invasion into grief and shock of the injured survivors in their quest for news.

Jerry Abuga is the Communications & Information Officer at the Media Council of Kenya. jabuga@mediacouncil.or.ke

Complaints Commission Reaches Out to Media Houses Members of the Media Council and the Complaints Commission paid a courtesy call on the management of the Standard Group on 12 March 2014.

Erick Ngaira

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n efforts to enhance collaboration and understanding of the work of the Media Council of Kenya’s Complaints Commission in promoting media freedom and responsible journalism in Kenya, the Commission conducted a number of visits to media houses in March 2014.

The Commission embarked on the visits to familiarise itself with the processes and operations of media houses, familiarisation with the internal dispute resolution put in place by the respective media houses as well as seek remedies to the challenges on media-related disputes resolution.

The Commission visited the Standard Group on 12 March where it met the Group’s management team that was led by the Chief Executive Officer Sam Shollei. The Complaints Commissioners led by the Commission Chair Grace Katasi also visited Mediamax Networks Limited on 13 March 2014 and Radio Africa Group on 19 March 2014.

At the Standard Group meeting, Mr Shollei said the media group had established an internal dispute resolution mechanism by creating the position of Public Editor. The holder of the position, he said, is responsible for receiving and handling complaints from the public on any concerns across its media platforms.

The team was also met by Radio Africa Group Managing Director Patrick Quarcoo. Radio Africa Group’s flagship the Star Newspa-

per was the first newspaper in the country to have a Public Editor who attends to public complaints on the publication.

Media houses commended the Council for laying down an effective mechanism of addressing the numerous complaints from the public.

The courtesy calls were also used by the Council to inform the media on preparations for this year’s World Press Freedom Day celebrations held annually on 3 May. The Media Act 2013 under Section 27 establishes a Complaints Commission whose mandate is to arbitrate in disputes between (a) Public and the Media (b) Government and media (c) Within the media (Intramedia).

The Complaints Commission consists of Seven (7) members appointed through a competitive and industry driven process provided for in section 27 of the Media Act. They include a chairperson who has held a judicial position or is an advocate of the High Court of Kenya of not less than 10 years standing and four other persons possessing experience and expertise in journalism and related fields.

Eric Ngaira is the Complaints Officer at the Media Council of Kenya. engaira@mediacouncil.or.ke THE MEDIA OBSERVER JANUARY - MARCH 2014

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Media freedom anchored in law, but‌ Kenya must implement the 2010 Constitution to the letter even as media houses adopt self-regulation and always observe fairness and accuracy in their reporting, argues BEN SIHANYA

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reedom of expression, access to information and media freedom are threatened in Kenya. I will address three research objectives, research questions and hypotheses.

tion 1996, the US Constitution 1787 and 1791 and UK constitutional law? Second, how is freedom of expression, access to information and media freedom treated in Kenya, SA, UK and the US? Third, what is the future of these three?

First, what is freedom of expression, access to information and media freedom under the Kenyan Constitution of 2010?

How about in the South African Constitu-

Communication and the media fall under three layers under what I have called the Yochai Benkler-Lawrence Lessig (Benkler-Lessig) model. This consists of the

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physical layer or architecture, including transmission, distribution and reception technologies like wires, wireless connectivity and fibre optics. Second, is the code or software layer, which is the intelligence that runs the system. Third, is the content, which includes voice, data, images or graphics that invoke freedom of expression, privacy, pornography, hate speech, copyright, trade mark and domain names system.

The Kenyan Constitution provides for access to information under article 35. This was not robust under section 79 of the 1969 Constitution. The three freedoms of expression have evolved from the international instruments like the Universal Declaration of Human Rights (UDHR) and the International Covenant of Civil and Political Rights (ICCPR), 1966. And the Johannesburg Principles on National Security, Freedom of Expression and Access to Information covers limitations on the freedom. That limitation must be provided by law, means the limitation must be accessible, unambiguous, drawn narrowly and with precision. The principles require that restrictions on national security show the relevant expression or information poses a serious threat to a legitimate national security interest. Second, the restriction imposed must be the least restrictive. And third, the restriction must be compatible with democratic principles.

Significantly, the US, UK and Germany enjoy constitutional democracy including freedom of expression and access to information in spite of numerous challenges. SA is an emerging constitutional democracy.

The Kenyan supreme law breaks down the right to freedom of expression in article 19 of UDHR and ICCPR to include: freedom of expression (art 33), freedom of the media (art 34) and access to information (art 35). Art 33(2) states that the freedom of the media shall not extend to: propaganda of war, incitement to violence. Nor is hate speech or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm; or is based on any ground of discrimination specified or contemplated in art 27(4) (on equal treatment and non-discrimination). The state is not to exercise control or interference with any person engaged in broadcasting, the production or circulation of any publication or dissemination of information. Individuals have the right to express themselves freely without unnecessary limitation.

And media freedom is defined in article 34 in terms of freedom and independence of electronic and print media. The state is restrained from interference in any broadcasting, production or circulation or the dissemination of information by any me-

dium. Remarkably, Aristotle stated that, “all men by nature require knowledge.”

His statement captures the core of media freedom. Media freedom includes the right to publish newspapers, magazines and any other printed or electronic material without governmental restriction and subject only to permissible constitutional limitations. It is the right to disseminate opinions without unnecessary interference by the central or county government or a state agency.

There is need to implement the 2010 Constitution and reform media laws to make freedom of expression a reality in Kenya which aspires to be an open and democratic society.

Second is practice of freedom of expression, access to information and media freedom. The media space in Kenya was expanded following the Inter Parties Parliamentary Group (IPPG) compromise of 1997 and promulgation of the 2010 Constitution. These were results of concerted efforts by media scholars, practitioners, activists, progressive opposition politicians and religious leaders.

Kenya can learn significant lessons from the US, UK, Germany and South Africa on protection of media freedom. Historically, the (general) freedom of expression was not enforceable as a constitutional right in the UK, as it was not recognised by the common law.

Freedom of expression was protected under numerous UK statutes without direct reference to the specific or general freedom. Examples are Obscene Publications Act 1959 and the Defamation Act 1952. Freedom of expression was first expressly codified in the Human Rights Act 1998 passed to implement the freedoms

enshrined in the European Convention of Human Rights (ECHR) 1950. Article 10 of ECHR on the freedom of expression has been adopted in section 12 of the 1998 HRA and offers the same protections.

There are reversals and threats to freedom of expression and media freedom in Kenya and South Africa. This is part of the reversal of constitutional democracy. There are direct attacks on the media through unconstitutional and draconian legislation.

In December 2013, Parliament passed the Kenya Information and Communication (Amendment) Bill, 2013 and the Media Council Bill, 2013. President Uhuru Kenyatta assented to them. These Acts have been widely criticised. Reporters and news organisations are at risk of being penalised for breaking the Code of Conduct for the Practice of Journalism. This document would be passed by a new Government-appointed Communications and Multi-media Tribunal. Journalists would be fined up to Sh1 million, while media houses have to pay up to Sh20 million).

These fines can be imposed in response to anonymous complaints. The Kenya Information and Communication (Amendment) Act, 2013 gives the state-controlled Multi-media and Communications Tribunal jurisdiction to hear appeals from the Complaints Commission of the Media Council of Kenya. The laws also create unjustifiable restrictions on the practice of journalism by prescribing minimum educational standards in order to qualify as journalists. Such a provision will deny journalistic shield to individuals performing journalism who might not be “professional” journalists.

In the US, individuals who are not professional journalists are protected under a journalistic shield.

The freedom of expression in South Africa is a constitutional right as in Kenya. Section 16 of the South African Constitution 1996 is derived from Article 19 of UDHR. This constitutional framework is enforced by numerous legislation including Imprint Act, 1993, the Media Development and Diversity Agency (MDDA) Act, 2002, and Independent Communications Authority of South Africa Act (ICASA) 2000, among others. ICASA establishes the ICA-

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SA whose mandate includes licensing of various broadcasting services; spectrum management and licensing; regulation of ownership and control of broadcasting services; and content regulation. Section 3 of the MDDA Act provides that the MDDA’s main objective is to promote development and diversity in the South African media.

South Africa is often cited as one of the most progressive on freedom of expression and media freedom. It was ranked eighth in Africa (52nd worldwide) according to the Reporters Without Borders’ (RSF’s) 2013 index of press freedom.

Kenya was 72nd. Her drop from 40 in 2012 was largely attributed to the introduction into Parliament of the Secrecy Bill by the Government. The State Security Minister, Siyabonga Cwele, defended the Bill stating that the State needed to protect “sensitive state information” and the “information of ordinary people.” Human rights activists criticised the Bill because it gives the Minister control over the classification of information.

Section 62 of the National Integration and Cohesion Act No.12 of 2008 places a limit on press freedom in instances of propagation of ethnic or racial hatred.

And the Books and Newspapers Act, Cap 111, requires every newspaper publisher to send daily returns to the Registrar. And that no newspaper is printed or published without a bond of Sh1 million having been executed, registered and delivered to the Registrar of Newspapers by the proprietor. The purpose of the bond is security towards payment of any monetary penalty, which may be adjudged against the paper. Under sec 52 of the Penal Code, Cap 63 the power to prohibit a publication can be used for both the importation and the local publication of a newspaper. The prohibition must be shown to be reasonable in the interest of defence, public safety, public order, public morality and public health. And the measure must be reasonably justifiable in a democratic society.

And Official Secrets Act, Cap 187 modelled on an English statute is an assault on the possibility of information getting into the hands of the public or aliens.

The right to freedom of expression must always be weighed as against the legitimate individual right to privacy, property

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or public security in the broader sense.

Moreover, the Defamation Act of 1969 and the Penal Code in sec 179 both seek to protect persons whose reputation are injured by the publication of statements or images. Private property is protected by aspects of law applicable to journalism including intellectual property, which is protected by the Copyright Act, 2001 and trademarks, among others. Copyright law restricts the media from publishing information, which is owned by another without consent.

These rights have more recently been invoked with the planned terrestrial television digital migration in Kenya. Three media houses: Nation Media Group Ltd (NMG), the Standard Group Ltd and Royal Media Services (RMS) challenged the planned digital migration, in a case that addressed the three components of the Benkler-Lessig model. The Court of Appeal decided on 28/3/2014 that the deadline for digital migration is 12/9/14; that the award of signal distribution by China’s Star Times be scrapped and retendered; that NMG, SGL and RMS are thereby issued signal distribution licence; that an appropriately independent broadcasting regulating authority be established under Article 34(3) to replace the Communication Authority of Kenya (formerly CCK).

The US is cited among the most progressive states on freedom of expression and media freedom largely due to the First Amendment prohibiting the enactment of laws that (unnecessarily) limit expression.

However, the ranking of the US on the index of press freedom was low according to the Reporters Without Borders’ (RSF’s) 2013. The sharp drop of was partly attributed to controversial surveillance.

Okoth-Owiro argues the state has a legitimate political interest to control the media. This commitment is based on the legitimate right arising from “state sovereignty.” It is now generally accepted that the state can limit and restrict this right.

But article 24(1) states that these restrictions have to be provided by law and be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom based on popular sovereignty. The following factors are to be considered: the nature of the right

or fundamental freedom, the importance of the purpose of limitation, the nature and extent of the limitation: the need for the consideration of the rights and freedoms of others; the relation between the right and its purpose; and whether there is a less restrictive means of achieving the purpose.

First, under article 33 of the 2010 Constitution, freedom of expression means the right to seek, receive or impart information or ideas; the freedom of artistic creativity and academic freedom, and freedom of scientific research. This has traditionally focused on the freedom of an individual (not corporate), and everyone (not just citizens). And it is the Government or state that has been regarded as the (potential) violator in a hierarchical relationship, through censorship, sedition, alarmist reports and subversion.

Second, there is need to implement the 2010 Constitution and reform media laws to make freedom of expression a reality in Kenya which aspires to be an open and democratic society. As a constitutional democracy, the following reforms are necessary.

First, constitutional implementation through legal and regulatory standards and environment that allow for open and pluralistic expressions. Second, political will by the presidency. Third, laws and practices that ensure access to information, especially information in the state system and public domain. Fourth, the necessary media literacy skills among news consumers to critically analyse and synthesise the information in their daily lives. And fifth, accountability by the media through fairness and ethical standards by journalists and all media players including citizen journalists especially in terms of recognising expertise and ethnic diversity among journalists and commentators.

Prof Ben Sihanya is a scholar in intellectual property, constitutional democracy & education law at the University of Nairobi. sihanyamentoring@gmail.com

When Kenya was almost in the lead

The battle to keep self-regulation instead of government control of the media has been long and winding, it is still on though, writes JOE KADHI

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t is almost satirically ironical that the man legally responsible for strengthening Kanu’s despotic rule, Mr Amos Wako, was also instrumental in miraculously uniting the traditionally adversarial media fraternity in Kenya. It all started in 1993 when he threatened to bottle up press freedom through his self-appointed mission of crafting a code of ethics for the profession. That threat was paradoxically united every member of the then eight media institutions in Kenya, to keep Wako and his hazardously venomous threat at bay.

Before the Wako threat, the eight were perpetually at either overt of some form of latent covert confrontation based on the Darwinian nature of the media industry itself. The Media Owners Association for example is a traditional antagonist of the Kenya Union of Journalists. While one is out to make as much profit, the other seeks to grab that profit as a matter of bread and butter.

That love-hate relationship between MOA and KUJ exemplifies the nature of journalistic Darwinism that existed in Ken-

ya in 1993 between the Editors’ Guild and the Kenya Correspondents’ Associations; as indeed it quiescently existed between media NGOs and media academia; much like the subterranean skulduggery that characterised the relationship between the Alternative Press and the Public Media. The cutthroat perpetual competition in all media industries in democratic countries is what creates and nurtures the intra industrial wars that constitute the spirit of vibrant media.

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Kenya, not being the exception, had that kind of internal struggle before Wako came up with his threat. No sooner did Wako suggest a draft law to come up with a Government fashioned Code of Ethic for journalists, than every member of the media fraternity buried their differences and united against him as they quickly formed the first Media Industry Steering Committee (MISC) whose membership was made up of the eight fighting institutions and its first mandate was to come up with a Code of Ethics for media practitioners in Kenya.

In the process of designing the first Code of Ethics for journalists, the first independent Media Council was formed to boost self-regulation with the sole purpose of keeping the Government away from the Fourth Estate. It therefore was not surprising when Wako came up with a law to regulate the media in 2007, he had to not only accept all the ethical principles designed by MISC, but also boosted the part of the law backing self-regulation.

By sheer coincidence, Kenya became one of the first countries to endorse a law supporting self-regulation. This was long before UNESCO came up with a publication in February 2011 in which it explained the importance of Self-Regulation of the Media in upholding freedom of expression. In the publication, Andrew Puddephatt, who is the Director of Global Partners and Associates, an organisation that promotes good governance, democracy and human rights who is also chairman of the Danish based International Media Support, says self-regulation is a combination of standards setting out the appropriate codes of behaviour for the media that are necessary to support freedom of expression, and process how those behaviours will be monitored or held to account.

He maintains that self-regulation preserves independence of the media and protects it from partisan government interference. To him, it could be more efficient as a system of regulation as the media understand their own environment better than government; though they may also use that knowledge to further their own commercial interests rather than the public interest.

Admitting the media environment is be-

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Security personnel stopping journalists from covering an event

coming global, through development of the Internet and digital platforms, he suggests that as questions of jurisdiction become more complex self-regulation can fill the resulting gap. He concludes that it is less costly to government because industry bears the cost and can be more flexible than government regulation. To him self-regulation may also encourage greater compliance because of peer pressure although he also accepts there is evidence that regulation or the threat of regulation is more likely to secure compliance.

The strongest part of his argument backs self-regulation as a means to drive up professional standards by requiring organisations to develop their own standards of behaviour.

Long before Puddephatt came up with those thought provoking words for UNESCO, Kenyan media fraternity came up with a media law that officially recognised self-regulation. The law, now known as the Media Act of 2007, came into existence as an Act of Parliament to provide for the establishment of the Media Council of Kenya; for the conduct and discipline of journalists and the media; for the self-regulation of the media and for connected purposes.

After establishing the Media Council of Kenya as a body corporate with perpet-

ual succession and a common seal, the law came up with a long list of the functions of the Council which included mediating or arbitrating in disputes between the government and the media, between the public and the media and intramedia.

Other functions included promoting and protecting freedom and independence of the media.

The aspect of self-regulation included promoting high professional standards among journalists and enhancing professional collaboration among media practitioners; and promoting ethical standards among journalists and in the media; as well as ensuring the protection of the rights and privileges of journalists in the performance of their duties. The law also gave the Media Council mandate to advise the government or the relevant regulatory authority on matters pertaining to professional, education and the training of journalists and other media practitioners.

It gave the Council the right to make recommendations on employment criteria for journalists; and uphold and maintain the ethics and discipline of journalists as set out in the Act and any other relevant law; and also do all matters that appertain to the effective implementation the said law while it also compiled and maintained a register of journalists, media enterprises and such other related

registers as it may deem fit. Lastly the law demanded that the Council conducts an annual review of the performance and the general public opinion of the media, and publish the results thereof in at least two local newspapers.

Killing two birds with a stone, the law proposed that the Council would get its funds from, among other sources, monies that may be appropriated by Parliament for the purposes of the Council. This meant the law guaranteeing self-regulation also made the Council a statutory one that would get funds from taxpayers. For all practical purposes that meant media self-regulation in Kenya involved the participation of the Government and came up with what can only be described as co-regulation.

Many scholars have been engaged in research activities concerning media co-regulation. One such study was conducted by Hans-Bredow-Institut and the Institute of European Media Law at the University of Hamburg for the European Commission as long ago as 2006 because, according to the study, co-regulation is regarded by many as a means to achieve better regulation and to accomplish both coping with the increasing risk of failure of traditional regulatory concepts, and handing back responsibility to society where that seems appropriate. However, the study found out, this phenomenon, which is sometimes referred to as a shift to governance, raises fundamental questions concerning legitimisation.

What was remarkable about Kenya’s Media Act of 2007 was the fact it did not only allow members of the media fraternity to set their own standards by making their own Code of Ethics part of the law; but it also categorically said the Government would have nothing to do with that process. That, unfortunately, is now being threatened by the introduction of two legislations that tend to belittle the importance of self-regulation and the requirements of keeping away from government intervention in the whole issue of media regulation. The Kenya Information and Communication Amendment Act of 2013 and the Media Council Act of 2013 are being challenged in court by the media fraternity and that is why I refrain from discussing the pros and cons of those two

laws because the matter is sub judice.

Be that as it may memories of government interference in media regulation through draconian laws such as sedition are still fresh to those of us who have been in this profession for decades. Until today, there are many scholars who believe governments should have little to do with media regulation. Among such scholars is Miklós Haraszti, an Adjunct Professor at the School of International and Public Affairs of Colombia Law School, New York, who believes undue legal restrictions passed by freely elected governments can be almost as oppressive for the press as the dictatorial arbitrariness of the past.

The code of ethics publicly define the functions, rights and duties of journalists and thus provide journalists with guiding principles on how to best exercise their profession.

In a Chapter called ‘The merits of media self-regulation Balancing rights and responsibilities’ of the book titled ‘The Media Self-Regulation Guidebook’, he argues that when legal restrictions are created, or misused, with the clear intention of eliminating independent reporting and opinion, such malicious media laws might, for example discriminate against non-state media outlets, in favour of the still-existing state-owned press, for example in the administration of such spheres as registration, taxation, printing, subscription and distribution.

Trying to answer the nagging question of whether or not governmental regulations can unintentionally harm press freedoms while protecting other freedoms, he says time and again, the road to unnecessary legal interference is paved with good will, and prompted by the public’s real need for standards in journalism. Claiming that many undue limitations are intended to

“help” enhance ethics and quality, or “balance” freedom of the press against other important values, like state security, social peace, or personal rights he concludes that in the hope of eliminating hate filled public debate, governments often overstep the legitimate limits of criminalisation of speech and allow prosecution of all kinds of intolerant, discriminatory speech, or simply views that offend others. To him such laws tend to merely impose the tastes of the ruling parliamentary majority.

Another scholar, Yavuz Baydar, from Turkey discusses in the same book, the vital question of setting up a journalistic code of ethics, which he describes as the core of media self-regulation. To Baydar the code of ethics publicly define the functions, rights and duties of journalists and thus provide journalists with guiding principles on how to best exercise their profession. Needless to say, this is exactly what Kenyan journalists did in 1993.

In a chapter called ‘Setting up a journalistic code of ethics: The core of media self-regulation’, Baydar says the names of these codes vary: ethics standards, ethics charter, code of conduct, code of practice, code of ethics, etc. However, they all have similar purposes: safeguarding the autonomy of the profession and serving the public interest. But Baydar insists “Code of ethics” is the most common term. Explaining practical information about creating and using such a code, Baydar maintains every code is essential and unique and concludes that good codes always show how media professionals should be involved in its creation and operation, and how it should be promoted and revised.

This view is in keeping with Article 34 of the Kenyan Constitution, which calls for establishment of a professional body that would set media standards and regulate and monitor compliance with those standards. Among the institutions, according to the Constitution, which should not be included in the list of the authors of the code of ethics for journalists in Kenya, is the Government.

Joe Kadhi is a Journalism Lecturer at the United States International University. joekadhi@yahoo.com

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Image: Luci Shani

Absolute freedom for the Press?

Press freedom is essential for any democracy, but several nations including Kenya have realised the need to put limitations on the media, agues PETER MWAURA

P

ress freedom is universally accepted as necessary in a democracy and as a precondition for tackling societal ills such as corruption, abuse of office and bad governance. But should the Press be given absolute freedom?

Absolute freedom would allow the Press to operate without any limitations or constraints by the government. However, while it is desirable that the Press should be independent of government control, it is often subject to control by economic and personal interests. It follows, therefore, that absolute freedom would only

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remove government interference, leaving the Press with something akin to absolute power without checks and balances.

Freedom of the Press is not an end in itself. It serves a function in a democratic society, principally that of surveillance.

This is an important condition or justification for press freedom. However, all nations in the world have found that press freedom cannot be an absolute right precisely because of the function of the Press and also because freedom of expression has to be balanced against other rights.

Many countries have laws and regulations that govern the exercise of Press freedom. Even in the US where the language of the famed First Amendment appears to give the Press absolute freedom, certain limitations and restrictions apply. The First Amendment of the US constitution states that Congress shall make no law abridging the freedom of the Press. But it is not absolute. Press freedom in the US is, for example, constrained by laws on hate speech and defamation. Thus while freedom of the Press is protected by the First Amendment, threatening violence and making speeches that violate other citizens’ rights and are not protected.

The old example of shouting “Fire!” in a crowded theatre illustrates the limits of free speech and freedom of the Press.

The exercise of freedom of expression is limited by the rights of other citizens.

This is often described as the non-aggression principle, which holds that the right to freedom of expression, and therefore freedom of the Press, is not an absolute right. Absolute freedom of the Press, with no accountability, could mean violation of other liberties including freedom of expression itself.

Professor Julian Disney of the Australian Press Council made this point rather well in a Senate hearing on 19 March 2013.

“This notion of absolute freedom is highly out of date and highly inaccurate as a real definition of freedom,” he said. “Absolute freedoms destroy freedom. That is well known across a wide range of areas. To distort, to provide people with unreliable information, to excessively abuse and intimidate, is among other things an attack on freedom of expression.”

The Kenyan Constitution guarantees the freedom and independence of the media.

Article 34 states that the State shall not 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 penalise any person for any opinion or view or the content of any broadcast, publication or dissemination.

However, the same article, read together with article 33, states that the freedom of the media does not extend to any expression on propaganda for war; incitement to violence; hate speech; or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm; or is based on grounds of discrimination specified in the Constitution.

Article 33 also states that every person has the right to freedom of expression, which includes freedom to seek, receive or impart information or ideas. Even more importantly, perhaps, article 33 also states: “In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.”

At the same time, article 34 also states that the media are independent of control by government, political interests or com-

mercial interests and requires Parliament to enact legislation that provides for the establishment of a body that is independent of control by government, political interests or commercial interests – and reflects the interests of all sections of the society – to set media standards and regulate and monitor compliance with those standards.

The recently enacted legislation – the Media Council Act, 2013 and the Kenya Information communication (Amendment Act) – was meant to meet that constitutional requirement. Admittedly, controversy exists as to whether the two pieces of legislation are in conformity with the constitutional requirements.

Thus Kenya has joined many countries that recognised that freedom of the Press is not an absolute right, that every democracy must develop some system of limitations on freedom of expression. The limitations include the use of expressions which most societies find harmful, such as incitement to violence, hate speech, invasion of privacy, and of course defamation.

The Code of Conduct for the Practice of Journalism in Kenya, which is a part of the Media Council Act 2013, sets out some of the restrictions found in most countries. For example, the media are forbidden from publishing obscene, vulgar or offensive material unless such material contains a news value necessary in the public interest. The publication of photographs showing mutilated bodies, bloody incidents and abhorrent scenes is also outlawed unless the publication of such photographs serves the public interest.

The Code requires journalists and all media practitioners to recognise that they are accountable for their actions to the public.

International law, in fact, allows countries to place limitations to the freedom of expression. Limitations are permitted when it is necessary to protect the rights or reputations of others, national security, public order, public health and morals. Kenya has an obligation to follow international law. Article 1 of the Constitution states that the general rules of international law forms part of the law of Kenya and any treaty or convention ratified by Kenya forms part of the law of Kenya.

International law requires a legitimate reason for limiting the right to freedom of expression. The list of legitimate reasons is provided for in Article 19 of the International Covenant on Civil and Political Rights (ICCPR): respect for the rights and reputations of others, and protection of national security, public order, public health or morals. These grounds are exclusive. Kenya, which ratified the ICCPR on 1 May 1972, cannot add to this list of grounds.

A government’s decision to limit press freedom must be compatible with democracy and must be really necessary.

The limitation must not be put in place merely to stem media criticism of the government. The restriction must serve a social need. The European Convention on Human Rights requires such limitations to be “necessary in a democratic society”.

Using similar language, article 24 of the Kenyan Constitution also states that 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 the nature of the right or fundamental freedom; the importance of the purpose of the limitation; the nature and extent of the limitation; 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; and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

This goes to show that Press freedom is not treated by nations as an absolute right. But it is still recognised as a fundamental right.

Peter Mwaura is a Senior Lecturer at the Department of Communication and Journalism, Kenya Methodist University and a member of the Media Council of Kenya’s Complaints Commission. gigirimwaura@yahoo.com

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It’s not the same again, and this is why

It is a hard sell for public service media to set performance standards and at the same time lead in championing public interest content, writes STEPHEN NDEGWA 16

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T

he global media landscape, more so in the developing world, has witnessed fundamental shifts in form and content over last two decades.

Apart from far-reaching changes in the traditional print and electronic media (radio and television), establishment of new media (Internet, digital and mobile technology) media has basically changed the way we interact socially, politically and economically.

it has no ‘gold standard’ definition. Given the varying political, technological and economic environments in every nation, PSM has taken different shapes and followed different models.

According to Public Service Broadcasting: A best practices sourcebook published by the UNESCO, PSM must meet the following threshold:

a) Universality: Public broadcast-

ing must be accessible to every citizen throughout the country.

The World Wide Web and mobile telephony have also drastically altered the way people view and consume news and information. The number and types of newspapers, magazines, electronic media and mobile platforms have not just increased exponentially; the substance of their content has also changed to keep up with their audiences’ increased levels of demand, taste and exposure.

b) Diversity: The services offered by

While for a long time governments in many countries either had a monopoly of the media or largely controlled what their citizens read, watched and heard, liberalisation of the Fourth Estate has relegated public sector communication to non-priority status.

d) Distinctiveness: Services of-

Before liberalisation of the electronic media about two decades ago, many Kenyans did not know another view besides what was aired by the State-run Voice of Kenya, which later rebranded to the Kenya Broadcasting Corporation (KBC) in 1989 through an Act of Parliament.

The concept of Public Service Media (PSM) is the latter version of what was previously known as Public Service Broadcasting (PSB). The United Nations Education and Scientific Organisation (UNESCO) defines PSB as “broadcasting made, financed and controlled by the public, for the public. It is neither commercial nor state-owned, free from political interference and pressure from commercial forces”.

Generally, PSM refers to radio, television and other electronic media whose primary goal is public service. However, it has been noted that since the global range of PSM experience is so varied and complex,

public broadcasting should be diversified in at least three ways: the genres of programmes offered, the audiences targeted and subjects discussed.

c) Independence: Public broadcasting is a forum where ideas should be expressed freely, where information, opinions and criticisms can circulate. fered by public broadcasting must be distinguished from that of other broadcasting services. In public-service programming, in the quality and particular character of its programmes, the public must be able to identify what distinguishes this service from other services.

In Kenya, notable examples of PSM in the strict sense of the word are KBC and the print Kenya News Agency (KNA), under the Ministry of Information and Communication Technology.

ing developmental and socially beneficial information to the masses.

In the United Kingdom, PSB refers to broadcasting intended primarily for the public rather than for commercial purposes. The first public service broadcaster in the UK was the British Broadcasting Corporation’s (BBC). All of BBC’s TV, radio stations and digital broadcast platforms do not sell advertising time. A licence fee funds the corporation’s broadcasting.

The concept is different in the United States. In America, PSM is nearly entirely decentralised and is not operated by the government, may be apart from the State-owned Voice of America. However, these media receive some government support in addition to other funding from various communities supporting the hundreds of public radio and public television stations individually licensed to the different non-profit organisations, municipal or state governments, or universities.

Now, because of not having to compete for advertising revenue especially in today’s overcrowded media landscape, PSM can help to set the agenda for public discourse. Since their major costs are underwritten by non-commercial support, these media are able to delve deeper into the crux of issues without the fear of antagonising potential advertisers. Rather than seeking to be popular to earn advertising revenue, PSM can tackle the hard questions that commercial media find intimidating.

Before the amendment of the KBC Act, the corporation operated strictly as a non-commercial entity. However, the broadcaster now accepts advertising on a competitive basis. The Government has also tried its hand in publishing with the Kenya Today weekly, which unfortunately folded up a couple of years ago.

In the same way, PSM can be effective as a channel for advocacy. Rather than simply reporting on issues, non-commercial media can take up causes purely aimed at helping the people. Their unbiased approach can direct debate on issues by laying the facts bare. This is unlike commercial media, which have to tread carefully on controversial matters lest they alienate themselves from big business.

Still, even after the station opened itself to market forces in a bid to cover its operating costs on a commercial basis, KBC still draws money from the Exchequer in subsidies. Before liberalisation of the media, KBC used to earn revenue from licensing all radios and television sets. The station is still viewed as a public broadcaster supposed to focus on disseminat-

In Kenya, however, this presupposes non-interference by other forces, particularly political interests of the day’s Government. For instance, it is said a former KBC managing director was forced to resign after he tried to introduce “impartiality” in the coverage of news. The MD had tried to detach the station from its ruling

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party baggage to increase viewership and thus attract advertising revenue. Unfortunately, he stepped on some toes that could not let go the most crucial Government media channel.

By their nature, PSM are more malleable to the code of conduct in the practice of journalism. In Kenya, this is contained in The Media Council Act, 2013. The Act lays out professional and ethical standards for journalists, media practitioners and media enterprises.

It requires persons under this Act to write fair, accurate and unbiased stories on matters of public interest. Wherever possible, it requires a journalist to report all sides of a story. The Second Schedule of the Act goes on to prescribe rules on correction of inaccurate stories, apologising on misleading information, making clear distinction between conjecture, comment and fact, and treating news subjects with respect and dignity.

An important aspect of PSM is also contained in this Act. It demands that a person under it shall “seek to understand the diversity of their community, and inform the public without bias or stereotype and present a diversity of expressions, opinions, and ideas in context”.

The Kenya Information and Communications (Amendment) Act, 2013 also spells out certain rules and regulations that supplement the Media Council Act. It establishes the wider regulatory framework for the communication sector and is referred to as “the Principal Act”. It lays out the operational principles of not just the print and electronic media but also new media, which include mobile telephony and the Internet.

These two Acts are the lighthouse, which any person and institution in media practice must follow. Unfortunately, private or commercial media houses are wont to go against these principles in their quest for higher ratings. Nairobi lawyer and journalist Paul Mwangi concedes that local commercial media oftentimes rush to publish news yet to be authenticated to “scoop” the others. This is the practice of being first with the news with so-called exclusive stories.

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Entrance to Kenya’s public broadcaster, Kenya Broadcasting Corporation.

“In the process of striving to be leader of the pack, some broadcasters or print media organisations will air or publish news that is not authenticated, which attracts legal suits or complaints with the Media Council of Kenya,” states Mwangi.

He notes that although most complaints emanate from the political class, other people and organisations are equally affected but avoid rigours of going through the judicial or legal process. They search for amiable solutions including arbitration.

But this is not to say PSM are not without challenges, influences and even vested interests. One major problem today is finance. The downturn in many economies the world over has resulted to significant cuts in budgets from non-core activities.

This means sources of funds for PSM are also dwindling, an event which is definitely affecting the resources at their disposal.

Indeed, this is one of the main challenges that will affect the sustainability of this model going forward. Some PSM have resorted, like a bit of what was done with KBC, to change their modus operandi to adopt market principles. It could be inevitable if they are to survive in the medium term, sustain their operations and expand.

Also, PSM are not immune to competing and changing political ideologies. KBC is forced to change its political outlook depending on the political party in power.

For example, audiences that paid allegiance to the Kenya African National Union party were alienated once the National Rainbow Coalition took power in the 2002 General Election.

Shifting audiences, especially within the young generation, also pose a big challenge, as youngsters seem more interested with entertainment, gossip and sports.

As numbers of the older generations decrease from attrition, PSM might be faced with a crisis of relevance.

Ultimately, however, PSM needs support to help in the quest for social equity and democracy. Former president of the Ford Foundation, Susan V. Berresford, is quoted as saying: “Public media has earned the public trust and is a proven trendsetter.

It is helping us all understand new global realities that affect our society and the ways in which our country affects others.

Public media does this well and needs our support to continue this role… An informed citizenry is vital to good governance…and healthy democracy.”

Stephen Ndegwa is a communication and policy analyst. ndegwasm@yahoo.co.uk

When public interest competes with business interests How the media deals with the tension between the two imperatives, indicates how strong journalism has or should become, writes OTHIENO NYANJOM

B

y definition, ‘media commercial interests’ are reflected in profits whose maximisation can involve short, medium term or long term strategies. An example of a short-term profit-maximisation strategy is revenue maximisation through advertising, while a medium to long term strategy might involve spending on corporate social responsibility.

‘Public interest’ is, however, more complex as it often involves an arrogation to an entity of knowledge of what is good for the public. Under a pure democracy – informed citizenry; free flow of information; free and

fair elections; etc, the government – the state/constitution and winning political party – is assumed to best represent the public interest. The pure democracy deficit requires that civil society keep watch over public interest, suing the media among other platforms. Whether they use commercially driven headlines to edge out competition, the media provides a platform on which public interest issues can be divulged and debated.

Many see the media as business enterprises; yet the work of the media is critical to a civil society that stands in for wananchi in relations with government and business. Thus, while civil society is the space within which public interest is protected against violations by the government and business community, extensive information asymmetry especially in developing countries means that the media is critical for effective citizen participation. That argument is made even more powerful by the emerging role of information technology (IT).

In a competitive market, the print and electronic media’s main marketing tool is ‘being first with the story’, the more striking the better. Thus, when terrorists

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attacked and laid siege on the Westgate Mall in late 2013, every print and electronic media house literally moved strategically to the scene to maximise their respective chances of ‘getting a scoop’. Even after the precinct was cordoned off so that no journalist could enter the arena of conflict, members of the Fourth Estate camped strategically along the perimeter, cameras trained on the building even as they fell over each other for the latest news. Eventually, the media was able to provide some explicit live and still footage of what was transpiring, or what had transpired. Amid the coverage of armed Kenyan civilians operating in tandem with the security forces to rescue people from the building, one particular picture of an injured bleeding woman – of non-African origin (emphasis intended) – particularly galled the government and some prominent media owners – for being “against public interest!”

Yet, Kenya is no pioneer of such embedded journalism, which has been a feature of war reporting from as far back as World War I. For the average Kenyan, however, embedded journalism invokes memories of BBC’s Rageh Omaar reporting the 2003 invasion of Iraq.

Back in Kenya, we have had instances of journalists accompanying police officers as they corner some alleged gangster and fell him under a hail of bullets. That apart, we have seen the standard police press conference – often after the fact, in which the officer in charge of an operation updates on the performance of “my mboys”.

But the allegations of media lack of patriotism over the siege on Westgate must be placed in context.

The Nation Media Group suspended its Group Editorial Director over the admittedly grisly photo of the non-African Westgate victim. But there have been myriads photos and live footage that violate victims’ privacy, without occasioning accusations of weak patriotism or suspension of journalists from work. There was much live coverage in the immediate aftermath of the 2013 al-Shabaab grenade attack that injured Kamkunji MP, the Ngara and Kisauni bombings, among others.

Victims of the 1998 US embassy bombing were shown live on TV. During the post2007 election violence, gory victim pictures were aired generously from Kiambaa in Eldoret, and from Naivasha, where 20

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the little child was captioned asking the dead body of her mother: “Who did this to you?”

Accusations of weak patriotism were among the triggers of a Media Council of Kenya (MCK) inquiry into how the media reported the Westgate siege. The launch of MCK’s findings, reported in its Media Observer Magazine – October to December 2013 issue entitled Challenges of covering Terrorism and Disasters, was graced by the Cabinet Secretary for Defence, Chief of Defence Staff, representatives of the Ministry of Information and Communications (MIC) and Inspector General.

Against the backdrop of a Thatcherism that ‘media coverage is the oxygen that keeps terrorists alive’, the core government message was that a patriotic Kenyan media must only report what the government has cleared it to report with regard to terrorism! Unsurprisingly, the government team did not await audience engagement. Indeed, MIC is apparently at an advanced stage of creating a central office from which all government sanctioned information will be released!

These government positions cause interest in the constitutional provisions regarding the media and information access in general. They also cause interest on what constitutes ‘patriotism’ with respect to ‘public interest’.

Whether the government is well placed to assume civil society’s watchdog function over it depends on whether the government is “trusted to do the right thing most of the time.

The Constitution’s Article 28 secures human dignity while Article 31 provides for the right to privacy, which the media must contemplate in pursuit of stories. So, one must ask whether the show of gory de-

tails in a terrorist attack is driven by the need to show the dying moments of XYZ, or to show how terrorism is bad, so that people should contemplate the invasive practices implied in nyumba kumi. The Constitution contains several exhortations to facilitate informed participation in governance, the most far-reaching being devolution to 47 county governments instead of the old serikali tukufu. More specifically for the issue at hand, Articles 32 (Freedom of conscience, religion, belief and opinion), 33 (Freedom of expression), 34 (Freedom of the media) and 35 (Access to information) all champion a need to provide (rather than hamper) access to information, which the media is specifically designed to do. In effect, therefore, it is unconstitutional to deny information that improves citizen capacity to participate in governance.

But which information should be ‘patriotically denied’, and which given in the name of patriotism? Which information is invasive or otherwise? Can the dissemination of invasive information be an act of patriotism? Who should decide?

The 2007 passage of the Media Act was a singular victory for media independence based on an internal capacity for self-regulation. The government never sat easy on that arrangement, hence the Media Council Act of 2013, which essentially gives her an oversight role over the media. Several regimes later, one still recalls Mbithi’s 1980s circular outlawing the Internet in government offices – at a time when public interest globally was screaming about IT access!

Whether the government is well placed to assume civil society’s watchdog function over it depends on whether the government is “trusted to do the right thing most of the time”. A recent survey by a constitutional commission found that only 35.6 per cent of respondents did; so a large majority of Kenyans unsurprisingly did not. In other words, a majority of Kenyans consider the government unpatriotic!! And why not? Of the Standard Gauge Railway project, questions have been raised about some Sh400 billion, which is double the equitable share of national revenue set aside for 47 county governments! Then there is the Sh1.4 billion in the laptops saga for children who have barely learnt their alphabet and time tables – also denied! There is the “austerity

measures” while Cabinet Secretaries buy 2,000 cc-plus limousines even as others rot in the sun. The government invariably denies these issues, which we only know about because of the media – patriotic or unpatriotic: you decide!

All these are public interest issues, which reach wananchi through screaming banner headlines in the media designed primarily to edge out commercial competition, but which nonetheless serve public interest.

As reported above, the government – notably the defence fraternity, wishes to circumscribe not just media freedom, but all the freedoms contained in Articles 32 to 35, at the altar of both Articles 28 and 31,

and of national security. While the rights to human dignity and privacy are sacrosanct, one must ask whether the footage of victims targets the individuals or the context of the problem they are fallen victim of. Nothing better illustrates this issue than the plight of northern Kenyans in the face of drought and famine.

The government has never invoked the dignity and privacy of emaciated, fly riddled Turkana children, eyes bulging on their death beds – maybe because of the effect of those media photos on donor purse strings. As for patriotism and national security, Kenyans must know as much about terrorists as possible to en-

able them ‘own’ the problem. Westgate must have touched an extremely raw nerve to invoke the reaction against the media that it did, unlike that in the many similar tragedies Kenyans have endured.

Othieno Nyanjom is an Independent Media Researcher and consultant on development issues including media, public spending and governance. othieno_n@yahoo.co.uk

How SAFE are you when reporting?

Under the Enhancing and Up-scaling Media Safety and Journalistic counselling, training on safety, and promoting dialogue between Professionalism in Kenya project, the Media Council of Kenya with media and security- institutions. support from the International Media Support (IMS) responds to the needs for mechanism and capacities related to ensuring the safety The MCK runs a web based alert system for journalists in distress and protection of media practitioners in Kenya. and carries out a rapid response operation for journalists based The project has several components, including the establishment of in Kenya. safety and protection mechanisms (Protocols), safety fund, trauma

Safety hotline: +254 702 222111

safety@mediacouncil.or.ke

www.mediacouncil.or.ke @MediaCouncilK

MediaCouncilofKenya

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We act in public interest, really?

How diverse and plural is Kenyan media content? And are most media houses just a merchandising tool for the advertising industry?

Asks JOHN GACHIE

A

s the national debate rages over media performance and public interest, it is incumbent on media owners, editors, journalists, policy makers and the citizens to pause for a moment and reflect on what constitutes public interest.

For many, especially media owners, editors, journalists and other media professionals they are keen to claim they seek first and foremost; to defend public interest as custodians, defenders and at times protectors of public good – hence they are sort of “ Guardian Angeles.”

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Many are beguiling in their commitment to seeking to serve public good, are a tad too quick on the draw to claim a higher calling in serving, defending, protecting and expanding public space in serving Public Interest. Many citizens in particular, the avid consumers of media content are wooed, enchanted and enthralled if not held captive if not hostage, by these sentiments of serving public interest they are oblivious and seduced into believe in this line of thought.

The reality if not the truth of the matter is that for media owners, editors and at times journalists despite their avowed,

seductive emotional appeal and plea for serving the so-called public interest is neither wholly true nor partially correct. But rather far in between and somewhat intersected and mediated by other self-serving interest(s) be they commercial-cum-economic, social-cum-cultural and political.

Many studies by media scholars, political scientists and other social scientists; and principally the renowned US philosopher, Naom Chomsky have for decades challenged the media’s claim to serving the public interest. – Proving that the contrary is truer, that media (mostly mainstream) serve a more restricted role,

perform a more circumscribed function and are more beholden to special/specific and self-serving interest(s) and are more driven by a self-serving propensity than public good or Public Interest.

For Chomsky, the media engage in most instances, in the manufacture of consent.

This manufacturing of sectional, national and or sectarian consensual perspective(s) and view serves the interest(s) of the elite in social engineering in the realm of domination – be it cultural-cum-social, scientific-cum-technological and mostly, in political-cum-economic power dispensation and outreach.

In the Kenyan media scene and in particular, the absence of a national public media institution, the twin issues of media diversity and plurality and public good, and or public interest becomes critical and urgent.

Are the Kenyan media beholden to competing commercial-cum-economic imperatives and interests? Are the Kenyan media beholden to competing ideological-cum-political interests? Are they held captive and hostage to rivalling ethnic-cum-political and regional interests?

Are they alive to issues of diversity and plurality of views and voices? And finally, are they averse to serving the public interest and instead serve competing though mutually re-enforcing commercial interests as chief outlets for merchandisers – whatever their product(s) and developing unbridled consumption and market segmentation, the holy grail of marketers?

The above questions about the Kenyan media industry or sector are pertinent and critical if not fundamental in understanding and subsequently, answering the Sh96 billion advertising revenue that makes the Kenyan media industry – among Africa’s most exciting top growth market.

This figure was disclosed last month by the Managing Director of Ipso Synovate, the leading market survey firm in Kenya for 2013. Further, writing in the current (2013) annual status of the press (Attacks on the Press), an annual publication by the New York based, Committee to Protect Journalists (CPJ), Tom Rhodes – the regional consultant said “…. advertising is king in the Kenyan media…..” and asserted

it will remain the same for years to come.

Perhaps and not too far-fetched, and certainly not publicly claimed – this state would explain the Jubilee government’s desire to change-re-configure and use the government’s huge advertising spend (budget) in the Kenyan media as a tool of political leverage though ostensibly; the decision to cut-back is predicated on cost-saving/cost-recovery and budgetary rationalisation schemes.

Is the Jubilee Government sending a loud message to the Kenyan media – slowdown on Government bashing or suffer the consequences? Better, is the Jubilee government firing a shot across the bow of the media owners – be careful least you bite more than you can chew?

In these murky waters of media and advertising revenue spend dance – where does the public interest(s) lie? Rather, can the Kenyan media ignore the advertising sword of domiciles the big advertisers (the government included) wield and hold against them and survive?

Closely related to these issues are the twin issues of voice diversity and plurality in the media content. Is the news content/ menu and serving in the Kenyan media – really sourced and developed to inform, educate and entertain the consumer?

How diverse and plural is the content?

Or are the media (mostly mainstream and urban based) really a merchandising tool for marketers in the service of consumer good audience and market segmentation and profiling?

Without a fully-funded, functional, independent and professional Public Media Institution, then the Kenyan media public consumer is beholden and caught between the vagaries and interest(s) of the power-elite, be they be politicians, commercial and economic and belatedly bi-partisan media institutions pursuing divergent commercial-cum-economic and political interests.

This is despite the sophistry and loud claims by most media owners and editors that they exist to serve, develop, enhance, protect and defend the public interest(s) whatever and however they perceive them in light of prevailing and expected

commercial-cum-economic and political interest(s) of their rivalling and competing benefactors if not share-holders.

It is an open secret that nearly all mainstream media houses are owned if not managed by the leading political power-barons despite their putative efforts and measures to cover-up the fact.

When the chips are down and during major political power acquisition, accumulation and retention in particular, during the period of political power competition in, during and post-electoral periods, main media houses are hard-pressed to serve the public good and Public Interest(s).

They are a sorry reflection of what ails our country - ethnic-cum-regional political polarisation and partisanship and with it out go any semblance of deepening, entrenching, enhancing; and protecting and defending the public good – which really is what Public Interest is all about.

It is imperative and critical for the Kenyan public to demand for a media institution that is not too overtly beholden to either the commercial-economic-interest nor too beholden to the ruling power-elite that is publicly funded, professionally managed and with adequate public oversight/supervision, preferably through the legislative arm of the government.

This will if well managed and supervised, allow for diversity of ideas and plurality of voices that make-up the face and voice of Kenya without being coloured, viewed and segmented and informed by purchasing abilities and attributes as is dictated by market and consumer imperatives. Public interest(s) is too important to be aligned to other extraneous market-cum-economic-cum-political drivers as most media owners/editors are wont to place a higher premium on. Perhaps this could partly help answer the Sh96 billion question – the money or media consumer or the public interest(s)?

John Gachie is a Media Consultant/ Trainer. gachie_john@yahoo.co.uk

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ernment as the people’s opinion all the citizens should access newspapers and have the capacity to read and understand all content.

The words have over the centuries given the media the confidence that whatever they do is for public interest. Indeed, surveys have been conducted in Kenya and the results show people trust the media more than politicians.

Although US President Barack Obama recently tried to paraphrase Jefferson’s statement, while challenging the American media to play their rightful role in promoting democracy and accountability, the media of Jefferson is quite different from the media we know today.

The media of the late 18th century were simply newspapers, an industry that had evolved from artisans who owned rudimentary printing presses, whose growth was fuelled by the mass society of the Industrial Revolution. Between the 19th century and the present we have seen the media industry grow from backstreet printing presses that empathised with the masses and the disenfranchised to blue chip corporations competing for profits with such sectors as mining, telecommunications, petrochemicals and the financial sector.

The Hard Reality

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hen the media industry fights for press freedom it is believed, by extension they are fighting for freedom of expression of the masses. However, the majority of media houses hardly speak for citizens.

Majority of media houses would try to argue otherwise, but commercial interests always dictate media content, claims JOSEPH N. NYANOTI 24

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In the late eighteenth century, American President Thomas Jefferson, made a statement that has been over-quoted by proponents of media freedom and editors. Jefferson said if he were to be given a choice to choose for Americans a government without newspapers (the only mainstream media of the time) and newspapers without a government, he would choose newspapers without a government. The president, however, added that for newspapers to replace the gov-

The role of the media in Kenya as a forum for freedom of expression and promotion of democratic ideals cannot be gainsaid. The struggle for freedom of expression and other fundamental rights has always been fought through the media. The struggle for independence, dating back to the 1930s, the post independence struggle for human rights (1963-1978) the struggle for multiparty, leading up to the 1992 multiparty elections and promulgation of the 2010 Constitution saw the media play a central role in fighting for public interest.

We cannot, however, say the media industry as we know it today fully works for public interest. Although the media owes it to the masses to build their own credibility to continue, existing commercial interests supersede public interests. The Kenyan media landscape is dominated by commercial media. This means media houses are not a public service but businesses expecting returns on their investments. Looking at the media’s growth, from political activist mouthpieces of the

1940s to the corporates we have now, it is the goodwill of the masses that have made them grow that big. Logically this would mean all content is people-driven but reality is to the contrary.

The media content is driven by profits through the dictates of the advertising industry. A story runs on television, radio, newspapers, and magazines if it makes economic sense. That is how large swathes of Kenyan population are poorly covered by the mainstream media. This content is regulated by the advertising industry, whose mission is to sell goods and services, and make money in a free market economy.

Media advertising is a multi-billion shilling industry in Kenya, estimated at over Sh70 billion. The relationship between the media and advertising is in theory a symbiotic one: The advertisers use the media as a platform to give visibility to their goods and services while the media relies on advertising revenue to meet the cost of production, pay salaries and make profits.

In practice, however, it is the advertising industry that calls the ultimate shots. The industry provides the money on which the media runs. So it dictates on what should run on what media platform at what time.

In other words, all content running in the mainstream media has the blessings of the advertising industry.

In the era of global conglomerates it should be noted that the types of ads that run on local radio and television stations; magazines, and newspapers, billboards and other platforms like sides of buses and buildings, are controlled by monopolies who speak one corporate language. If you watch television at 9pm, for instance, the first commercial break falls at the same time across most channels.

This is deliberate.

It cannot be said most content on Kenyan media are for public interest. For instance, Kenyan cultural values do not encourage a kind of permissiveness where sex dominates our discourses. But sex talk and imagery pervade the Kenyan media landscape, especially broadcasting. This reflects the discourse of advertisers. The ubiquitous advertising industry is full of sexual imagery from cosmetics to cooking oil. A casual look at daily newspapers indicates most content is entertainment or having fun. This is meant to prepare the readers to consume the advertisements,

which also deliver their messages through this genre.

Television stations are investing millions of shillings in ultra-modern space-age studios to make TV viewing a feel-good experience. The glamour of the studio set and the carefully selected wardrobes for the presenters project the same plane on which commercials are produced. This is a deliberate move to blur the boundaries between editorial content and advertising. Indeed a good number of television presenters also act as models for television commercials, newspaper, magazine, and billboard ads. This looks like a conspiracy between advertising and journalism but it is all in the name of getting returns from media investment.

The danger this has, however, is the viewing, listening and reading masses can be denied critical content that seems dissonant with the advertising industry. Investigative journalism, a critical genre in checking malpractices in the corporate world, for instance, suffers.

The Constitution gives the media industry independence from control by political and commercial interests. It also directs the media to be fair in presenting divergent views and dissenting opinion. Leaving political interests aside, commercial interests always do compromise the tenet of divergent views. No media house can afford to antagonise the advertising industry by sticking to constitutional dictates and in the process they “pass on� this straightjacket scenario to the audiences.

It is therefore the duty of the Media Council of Kenya to play its role of referee and moderate between the media and advertisers. The advertising industry should be reminded that, as pillars of the media industry, they have a duty to promote public-responsive media environment. Like editorial content, there are advertisements of television, radio, or newspapers that do not promote public interest. Prime time television news bulletins allocate more time to advertising than editorial content. Much as these stations are after the advertising revenue that comes from these commercials, they need balance. There are many billboards in urban centres like Nairobi that are offensive to local tastes; some have even been accused to causing traffic accidents.

This is where moderation comes in. The country can borrow a leaf from the Advertising Standards Authority (ASA), Britain’s independent regulator of advertising across all media. The Authority receives complaints from the public about offensive ads and it orders the advertisers to change the message or withdraw the ad altogether.

Another way of discouraging a scenario where commercial interest dictate media content is to create credible competition within media practice and give the consumer powers to choose. Looking at the media landscape in Kenya in the past 15 years when all state controls were relaxed paving the way for fully independent media, there is no plurality of ideas as projected. Like in many parts of the world, fewer and fewer conglomerates own more and more media houses, leading to monopoly of ideas. Only five media corporations in Kenya own media outlets in radio, television, newspapers, and news sites. These outlets are supported by advertising agencies run under almost similar monopolies.

This therefore does not make competition within commercial media outlets feasible. The government should step in and revamp the national broadcaster, the Kenya Broadcasting Corporation (KBC) and make it a true public broadcaster. If KBC is given the political goodwill to operate professionally it can set the standards for good journalism in Kenya. Since it will be fully funded by taxpayers it will accommodate all views. Like the British Broadcasting Corporation (BBC) it should not be allowed to take advertisement but can sell specific programmes to generate extra revenue. This way it will not be under the mercy of advertisers who will dictate content. This should go hand-in-hand with hiring competent staff and pay them competitively enough to attract the best journalists.

Joseph Nyanoti is a Journalism lecturer at the United States International University. He is also a PhD candidate in Media & Cultural Studies at the University of Nairobi. josephnyanoti@gmail.com

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Time to reflect on Westgate siege The Kenyan media and security forces must soul search after their commissions and omissions during the attack on Nairobi shopping mall, argues VICTOR BWIRE 26

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These and other questions were at the heart of a discussion in Nairobi recently between leaders of the Kenya Defence Forces (KDF), National Police Service Commission (NPSC) and the Media Council of Kenya. The February 7 meeting was organised by the Council in the wake of its study on how media covered the September 2013 attack on Nairobi’s Westgate mall, which killed 67 people.

In the study, journalists said they were not adequately prepared by their editors on how to cover the Westgate mall story.

One photojournalist said the only advice he got from his editor was not to risk his life because he needed to be alive to tell the story. The study established that journalists who had previously covered crime were better prepared psychologically to cover the attack while others were overwhelmed by fear and intensity.

“Covering this incident was a bit terrifying, knowing these were not normal thugs but terrorists with state-of-the art artillery and who could kill any time,” said one respondent.

Defence Cabinet Secretary Raychelle Omamo, and General Julius Karangi, head of the KDF, blamed the media for being not only a security risk and an obstacle, but also aiding criminals by giving them information on security plans and installations. They said that, except for journalists embedded with security forces, media should not report on details of military operations.

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hould journalists expect support and protection from security agents when they risk their lives reporting on security operations?

What if their coverage could potentially expose military strategies? Why are journalists disparaged as unpatriotic when they show how security operations fail?

“You only play into the hands of terrorists and criminals by glorifying their activities on live coverage, and assist them instilling fear among the public, and in your quest to get the news, you expose yourselves to considerable danger,” General Karangi said.

Journalists at the meeting differed. Nation Media Group Chief Executive Linus Gitahi acknowledged that the media was ill-prepared to cover such a big event but said journalists did their best. “Yes, we [made] mistakes and admitted whenever that happened, but the general preparedness of Kenyans during emergencies is wanting,” Gitahi said.

Editors Dominic Wabala of Radio Africa Group and Wellington Nyongesa of Radio Maisha said security and media relations during such operations needs to be coordinated and improved.

“We editors compromised the security of our reporters during the Westgate terrorist attack and we must take responsibility.

It’s time newsrooms worked on security support structures for journalists, for we cannot trust the security agencies to always extend help,” Wabala said.

Media houses in Kenya do not have adequate protective gear and equipment for journalists, and even when they do, they are required by law to deposit security gear with police, making the process of accessing the equipment slow and cumbersome.

The Media Council’s report found the press might have compromised security operations during the mall siege. Live coverage showing special security forces preparing to enter the building where hostages were being held could have risked the operation and put the hostages in jeopardy. Of respondents to the study, 70 per cent said they felt media failed to ask critical questions about the historical, cultural, and social context of terrorism and instead focused on dramatic, violent, or bizarre accounts of the attack.

“With no briefs from editors, reporters were reduced to conveyor belts of misinformation that lacked in credibility and objectivity. Some reporters were traumatised and shocked and received no counselling after the incident,” Nyongesa said.

Victor Bwire is the Deputy Chief Executive Officer and Programmes Manager at the Media Council of Kenya. He is a safety trainer for journalists. victor@mediacouncil.or.ke

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Are Kenyan media mere lapdogs?

As debate rages on media freedom and the need to enhance public interest, journalists must define their fidelity to the Constitution and self-examine, argues DOROTHY KWEYU

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o what extent are Kenyan media observing their professional obligation as required by the Code of Conduct for the Practice of Journalism in Kenya with respect to Clause 15 on sex discrimination, which stipulates that, “Women and men should be treated equally as news subjects and news sources�?

This question is at the core of the debate on media freedom and public interest and on the thorny issue of whether Kenyan media are mere lapdogs in a society whose political and socio-economic structures are not only heavily tilted in favour of a privileged minority, but are becoming increasingly more so.

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with “adequate food of acceptable quality;” “clean and safe water in adequate quantities;” as well as the right to social security and education.

from the mainstream of political discourse means they have no say in crucial decisions affecting their lives and their dependants.

Not only is the right to health entrenched in the Constitution, but Article 43 (2) states: “A person shall not be denied emergency medical treatment”, while Article 43 (3) adds: “The State shall provide appropriate social security to persons who are unable to support themselves and their dependants”.

The study covered 514 news items from five mainstream newspapers and involved 507 news subjects and 549 journalists in the print sector; 201 news items from two radio stations involving 566 news subjects; and 207 news items from two television stations involving 598 news subjects.

Higher up in Chapter Four of the Constitution, the Bill of Rights upholds the principle of Equality and freedom from discrimination in Article 27 (3), which states: “Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.”

The findings, whose summary I reproduce at length below for ease of reference, are a damning indictment of media’s infidelity to Clause 15 of the Code of Practice of Journalism in Kenya and to Article 27 (3) of the Constitution.

Based on the foregoing, to what extent have Kenyan media discharged their responsibility in ensuring every Kenyans’ human rights to national development are realised?

On this year’s International Women’s Day, March 8, the Africa Woman and Child Feature Service (AWC) released a study, part of a global series by the World Association for Christian Communication (WACC), which demonstrates that Kenyan media are not only in breach of their own Code of Conduct, that is, “Women and men should be treated equally as news subjects and news sources”; it was evident from the study findings that media in Kenya are the face of the country’s patriarchal underpinnings.

It is a multi-faceted question, whose answer is not confined to application or otherwise of Clause 15 of the Code of Practice, but has to be sought in the media’s fidelity or otherwise to the Bill of Rights, Chapter Four of the Constitution of Kenya, and especially Article 43. The article embodies Kenyans’ aspirations to basic needs, without which the word ‘development’ would be mere rhetoric.

This article entitles every Kenyan to “the highest attainable standard of health;” “adequate housing;” “reasonable standards of sanitation;” freedom from hunger

Women, youth, children, older people and persons with disabilities suffer discrimination in spite of constitutional safeguards lodged in the Bill of Rights.

The AWC-WACC study titled: Kenya Media and Women in Political News is based on empirical evidence from a 15-day media monitoring exercise carried out in AprilMay, 2013. It found that only 18 per cent of those whose views were read, heard or seen in print, radio and television political news were female.

Inasmuch as development is driven by political policy, excluding women’s views

• Only 18 per cent of those whose views were read, heard or seen in print, radio, and television political news were female. In contrast, 74 per cent are male • Only nine per cent of journalists who reported in the print media on political news were female compared to 72 per cent male • Men enjoyed seven times of television news time compared to women • Men were the main sources of information in professions like law (92 per cent), police/military (89 per cent) and politicians (88 per cent) • In print media, males were covered more in articles (79 per cent), Editorials (67 per cent), Letters to the Editor (47 per cent) compared to the females who averaged 17 per cent in coverage in all sections of the newspaper • On average, more men (71 per cent) than women (21 per cent) were covered across all geographical news sections (international, regional, national and local) in TV, radio and newspapers) • On space allocation, at 77 per cent, males got the lion’s share of the space allocated in newspapers, while females got a paltry 17 per cent

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• More women (8.5 per cent) are portrayed as victims than men (2.1 per cent) • Male sources predominate in all genres, including those that are seen as being most authoritative, such as the editorial and opinion pages (79 per cent compared to 16 per cent for female) • Although there are more women than men in media houses, the percentage of stories on television, radio, and newspapers, done by female journalists was 32 per cent compared to 53 per cent by male journalists • The findings show women journalists were more dominant as news anchors (74 per cent) than men (22 per cent).

But almost a half of the reporters were male compared to 30 per cent female.

Based on the above, the question to be asked is not so much what responsibility the Constitution assigns the media in realisation of human rights and national development; Article 27 (3), read against Article 43, is explicit on that and needs no belabouring. Rather, the question is whether the various media outlets are faithful to the constitutional dictates of treating men and women equally.

From the survey, the answer is clear: media are short-changing women, and as a result failing in their responsibility of watchdogs to Article 43 of the Constitution.

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There is a reason for this. Media freedom, commercial interest and social responsibility are strange bedfellows. For how can an industry that boasts freedom to disseminate information without undue interference, be watchdog to Article 43 that encapsulates Kenyans’ development aspirations, and, at the same time, safeguard the interests of shareholders, whose bottom line is best served by political rather than development headlines?

Another question: Is blanket media freedom compatible with the social responsibility entailed in the preferential option for the poor and the marginalised— women, youth, children, the elderly and persons with disabilities—who suffer the most when the State reneges on its mandate to deliver on Article 43 of the Constitution as the media turns its back on its responsibility of holding the State to account?

That is a new debate that cannot be sustained in this article. A few observations however: “nurturing and protecting the well-being of the individual, the family, communities and the nation” at large are lodged high up in the Constitution of Kenya 2010—in the preamble. And so is recognition of all Kenyans’ aspirations “for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law”. This means the media cannot champion freedom and democracy while relegating the other constitutional stipulations.

What does the Constitution demand of the media? Where are the stories that need to be told as evidence of State compliance or otherwise with the demands of Section 43 of the Constitution? When should the stories be told—continuously to keep the State on its toes or only when mothers in Turkana resort to feeding dogs to their children because the State machinery failed to distribute the available food to resource-deficit areas? Why have the media routinely failed in fulfilling their mandate of treating not just men and women as envisaged in the Code of Practice, but all Kenyans by putting people’s right to life and to basic survival at the core of their mission? And finally, how might these shortcomings be remedied?

Without honest introspection and answering the above questions, the media will continue to fall short of discharging their responsibility towards the realisation of human rights and national development. And yet it cannot afford to fail in this mission, which is recognised in the Constitution’s Article 11 of what it means to be republic.

For, as Article 11 (2)(a) defines the State’s role in promoting “all forms of national and cultural expression through...communication, information (and) mass media”, among others, the onus is upon the media to use its strengths to uphold Kenyans’ human rights through Article 43, without which there will be no meaningful development to talk of.

Dorothy Kweyu is a Revise Editor with the Daily Nation. dmusopole@gmail.com

Is community or religious broadcasting in the public interest?

Any freedoms citizens claim individually, and society claims as a whole, must be tempered by a strong and inescapable regard for the rights of others, writes JULIE MASIGA Kenya’s Deputy President William Ruto being received by religious leaders when he attended a church service in Nairobi.

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et’s put the law aside for a minute and contemplate the true meaning of liberty. What does it mean to be free? At its most fundamental level, absolute freedom gives an individual the power to act, speak, or think, as they want without hindrance or restraint. Individual freedoms operate outside the realm of constraint, most especially the freedom to bear one’s own opinions. What they do not do is make any consideration for the common good.

But as the saying goes, ‘no wo/man is an island’. Human beings live in the context of a collective humanity, in a world where the freedoms of the next guy must be

taken into consideration if the globe is to continue spinning peacefully on its axis.

This is where the law comes in with its defining and regulatory function. Without rules, freedom becomes anarchy. Without responsibility, rights become childish demands for unfettered liberties that will often infringe on the individual freedoms of others.

For a society to achieve national development, while at the same time maintaining peaceful co-existence across every socio-economic demographic, members must learn to walk the line separating individual civil liberty and the common good – a continuous exercise best defined as protecting the public interest.

To make steady and consistent progress as a nation state, the common good or general welfare of the masses, used here to include all income classes, must remain

in the foreground. But how do you strike that delicate balance between personal rights and freedoms versus the interests of the public at large?

In the media context, every rule and guideline contained in the professional code of conduct is designed to protect or advance public interest. The newsworthiness of a story is used as a measure to determine if the public’s right to know, outweighs the media’s responsibility to protect various societal sensibilities.

Many of these protections are defined by legislation and the laws of natural justice. The Constitution for instance, states clearly that freedom of expression does not extend to propaganda for war, incitement to violence, hate speech or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm.

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It also provides that said freedom must be exercised with respect to the rights and reputation of others. In other words, an individual or corporate entity’s right to express themselves must, constitutionally speaking, take into account the interests of others.

Article 27 prohibits State discrimination against citizens on any grounds including race, sex, ethnic or social origin, colour, religion, belief, culture etc. When exercising the freedom of speech/expression, every person and/or body corporate that disseminates information must take these discriminations into account. These provisions combined present a dilemma for community and religious media outlets, which by their very definition are designed to speak to niche audiences to the exclusion of the general public. How must they balance the interests of the few versus those of the many?

Let’s consider the case of community (vernacular) stations. The international criminal case against journalist Joshua Sang comes to mind. Sang is accused inter alia of inciting his community to ethnic violence via the popular morning broadcast Lenee Emet. It is alleged in the aftermath of the disputed General Election of 2007, while speaking in his ethnic tongue as host of the show, he urged his tribesmen and women to rise up against the perceived domination of the Kikuyu tribe.

Without debating the veracity of the allegations, if indeed a community media outlet were to inflame passions of its listeners to the detriment of another ethnic group, that would be a clear abuse of the press freedoms enshrined in the Constitution. This notwithstanding, the general tone of reporting in various community publications and stations, starting from the contentious Constitution referendum campaign right up to the presidential election, was coloured by the tainted brush of a divisive ethnicity.

Given the propensity of Kenyans to revert to default tribal positions during contentious times, there are laws that guard against this particular kind of abuse. The National Cohesion and Integration Act criminalises the publication (print and broadcast) of 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.

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Similar provisions exist in the Code of Conduct for the Practice of Journalism in Kenya. The Code also attempts to regulate religious utterances when it provides that media outlets are prohibited from quoting persons who make derogatory remarks based on ethnicity, race, creed, colour and sex. When covering religious conflicts, the press is legally required to properly verify the facts and then present them in a manner conducive to national harmony, amity and peace. The latter is a public interest requirement.

But despite this type of legislation, the regulation of religious media outlets cannot be as cut and dry, as the law would make it seem. In obvious cases where religious broadcasters openly spread hate and intolerance – many examples of this can be found in North Africa and the Middle East – the rules, where those rules exist, apply without question. However, religious broadcasts are potentially offensive to anyone who doesn’t subscribe to the faith in question, even when the intention is not to incite feelings of con-

tempt or discrimination. For example, an evangelical Christian who believes Jesus is the way, the truth and the life, is likely to feel contempt for a Muslim who believes Allah is the one true God – and vice versa.

Therefore, regulating religious media outlets ends up being a more nuanced affair.

The question then becomes, despite an abundance of legislation and regulation, is it possible for community/religious media to operate in the public interest, when their content is targeted at a niche – and often minority – audience? Well, yes. As long as they present their information with respect for feelings, rights and reputation of others, and with due consideration for protection of national security, public order, and public health or morals.

It is a fine line they must walk as they balance the interests and beliefs of their publics against the broader rights of the public at large.

In an ideal world, everyone would have the inalienable right to say what they

Community members watch proceedings at the International Criminal Court at a church.

recent ‘coming out’ of celebrated Kenyan author Binyavanga Wainaina. In this instance, the Christian media confirmed what is widely thought to be a majority view – even among Muslims - to the detriment of members of the gay and lesbian community.

While that was happening, international media outlets in reporting the reactions of Western political and opinion leaders, seasoned with a good amount of their own editorialising, condemned the anti-gay sentiment that seemed to be sweeping across the continent with countries such as Nigeria and Uganda updating pre-colonial laws that criminalised homosexuality, and extending those provisions to include lesbians.

As is the case around the world, Kenyan youths are heavily influenced by the philosophies of the West, especially those churned out by Hollywood’s entertainment machine, which uses the international press (and the social media) as a major outlet for its ideas. Indeed, Western entertainment culture is a religion of sorts, with avid followers the world over.

As such, tolerance for same sex is higher among the youth, be they in Africa, Ukraine, Mexico or the US.

I disapprove of what you say, but I will defend to the death your right to say it - Voltaire

want, and everyone else would be okay with it. But in this global village where citizens are visibly divided along ethnic and religious lines, those who have a platform to speak to large audiences must take into account the potential consequences of their editorial choices. To protect the freedoms of society as an entity that must be preserved, those who deem themselves voices for the voiceless must assume the most responsibility for their rights.

Despite the obvious role of the media – community and religious outlets included – to inform the public and in so doing defend freedom of expression; it bears the utmost responsibility to curtail that freedom when the same is demanded to protect the greater good. Like it or not, in this expansive role, press people influence the views of the worlds they reach with their information.

These individuals, speaking under the auspices of recognised media houses –easily sway the opinions of their audiences.

Their positions on issues can easily become the positions of their audiences, especially on such emotive issues as ethnicity and religion. And where they are not operating in the role of influencer, they do confirm views that might be widely held and yet, still detrimental to various sections of society.

So in essence, when it came to the recent debate around gay rights, one religion was pitted against the other via two distinct ‘religious’ broadcasters. The first purported to protect the public interest of a majority (Kenyan Christians and Muslims) and the second, that of a small but increasingly influential minority (gays and lesbians). This is a classic example of the nuances that media rules and regulations must navigate when it comes to matters of morality, many of which are painted in broad religious strokes. In the final analysis, any freedoms that citizens claim individually, and society claims as a whole, must be tempered by a strong and inescapable regard for the rights, reputation, health and morals of others, for the proper maintenance of mutual respect and tolerance.

Julie Masiga is a Revise Editor at the Standard Group. julie.masiga@gmail.com

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Is your voice heard loud enough?

A good media helps a people talk to themselves, so has the Kenyan media Kenyans a voice or rendered them mere consumers of their products? ANNE MBOTELA investigates

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I

n Kenya, trend has been a decade long with the State being the largest catalysing agent for the erosion of media freedom. But this threat is not the only challenge facing the press. Although, media practitioners have fought for space and liberty to publish and air whatever they please - of course with assumption that they are guided by the code of conduct for the practice of journalism, professional ethics and moral responsibility - they have either through sheer connivance or inadvertently, exposed the profession to the dark forces keen to gag the media - paradoxically, the dynamic expansion of the media has more often posed a threat to the industry especially so when it comes to competing in commercial and professional interests’ vis-à -vis the entrepreneurial interests (ownership).

Unfortunately, in the jostle to find a healthy balance for the three, public interest has at times been relegated to the periphery. Historically, for over two decades, Kenya’s Media, an integral part of the society’s quest for greater freedoms and transparent and accountable governance, has been and is still fighting for its space and freedom especially with transition from dark times of the one party dictatorship of the Kanu regime to the advent of political pluralism. It has been a tough journey characterised by betrayal by the ruling elite’s changing from yesterday’s reformist to today’s tormentors of the Fourth Estate.

Of course in the multi-partism era the media has enjoyed growth and freedom despite the ever-lurking threat from the ruling elite and other retrogressive forces. From the one state-controlled broadcaster, Kenya Broadcasting Corporation, to the licensing of the KTN, the first privately-owned television station, we have witnessed proliferation of other media, especially the electronic.

In a largely consumer society such as Kenya, the self-financing private media, often faces a daunting dilemma. That is, to balance the predicament of commercial interests in terms of pandering to the whims of corporations to scoop the huge advertising revenue it needs to stay afloat, yet safeguard consumer/public interests.

As investors keep the eye on the bottom-line, media practitioners find themselves juggling multiple balls ranging from professionalism, to commercial, public and even individual interests. In the end, it comes down to old adage; “He who pays the piper calls the tune.”

Public interest becomes the casualty in this delicate act. Fact is media, although a business entity is like no other; it has an additional watchdog role as the Fourth Estate. It has to watch all other publics.

Thus, the reason it cannot be submerged in the commercial interests and must always remember that the public interest remains supreme. It must keep its eye on the ball, I reiterate - Public interest.

On the other hand, while State media does not ideally have to grapple with the bottom line issues because it to a large

extent survives on the public purse, it has a unique dilemma: the ruling elite, a religiously selfish group whose pre-occupation is to preserve and cling to power. It will unashamedly, push its agenda, often inimical to public interest, through State media camouflaged in State security, skewed public good and other tactics for self-preservation.

Last year, December 5, in Nairobi, a local newspaper carried a news story entitled: “Kenya Parliament passes draconian media laws” with a live picture of a group of journalists with mouths gagged with tape, protesting outside the Committee for Protection of Journalists (CPJ) building in the city. It captured the ever-looming threat to press freedom.

The article read in part: “Today’s Parliament passed contentious anti-press legislation, the Kenya Information and Communication (Amendment) Act and the Media Council Act, which will effectively silence critical reporting through a new government-controlled regulator and the threat of hefty fines.” This implies, both Acts will enable a new government-controlled regulatory board to fine individual journalists up to Sh500,000 and media companies up to Sh20 million if the board finds them in breach of a government-dictated code of conduct. Hard-hitting!

Media freedom debate is a theme that cuts across the continent. Other African nations have suffered similar fate. Mozambique, South Sudan and South Africa are just but a few. Mozambique in particular made a turning point with express positions taken by publishers and editors about freedom of the press, to curb abuses and threats by the police (National Institute of Studies and Research Author Luca Bussotti’s paper entitled, “The debate on press freedom in Mozambique”.)

Globally, Media has four areas of focus: The audience, the broadcaster, the advertiser and the regulator. Should any of these be out of tandem, there is cause for alarm. Chief-Sub-Editor at The People newspaper, Ken Bosire says: “When you understand why the media or press exists, you begin to appreciate its role and what press freedom represents.”

1. The watchdog role – The media has the opportunity to bear the governance and wrongs, obvious in society. If people in authority break rules meant to govern an orderly society, it behooves the Fourth Estate to speak up. A free press, although under constant threat, must stay its course to champion public interest. It must resist the luxury of keeping the messenger comfortable and subverting the message.

2. Informing – Media should educate the public on what is good for the greater good and dignity in areas such as vaccination, farming and other choices they need to make. Enlightening and educating society creates awareness for development. For instance, an accurate weather forecast can forewarn the public and policy makers on impeding calamities such as flooding and drought.

3. To entertain – He says: “I find great Rhumba, Ohangla, Mugithi or Benga presentations on TV and radio not just therapeutic but educative.” For him it enhances inter-communal harmony and appreciation for Kenya or even African culture at an individual and national level. Equally, people are human with need for therapy and sound emotional health. When a nation is healthy, it can showcase creativity at its best and enhance public interest, which develops its socio-economic fabric.

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suppressing the women and other marginalised people? Absolute freedom of media may be a fallacy unless such issues are addressed. How media mirrors itself to the public has a direct bearing on it how it informs and shapes society.

While it is appreciative media is central in socio-economic and political discourse, media freedom, commercial interests and social responsibility are intricately interlinked outcomes on society. The Bill of Rights provides for Article 34 (Media Freedom) and Leadership and Integrity Chapter 6 clearly spell out the demarcations; media gatekeepers are ignorant of.

Media is dynamic and the greatest revolution in the 21st century is migration from analogue to digital platforms. Even as the traditional media, a victim of conservative attitude scourge, grapples with this inevitable new era, the opportunities it brings for practitioners are boundless.

Besides the convergence of various media channels, there are new dimensions for growth and diversity of the menu for the consumer. Its very nature, such as the vibrant social media, makes it nearly impossible for enemies of free expression and press, to gag public opinion and information. Here lies the greatest potential for protecting public space, but it, too, comes with greater sense of responsibility. The invasion of this space by quacks is in itself a threat to media freedom.

Another challenge is do the media understand their publics? Do they really research their markets well enough for relevance? Perhaps this, too, calls for open and continuous debate.

Hannah Waweru, a freelance media producer says: “The reason the media freedom bill has been fronted is to uphold audiences who need to be protected from exposure in what could be deemed as vice through media channels. However, media freedom is an opportunity for media practitioners to self-regulate as 36

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opposed to external force/law doing it. I think practitioners can exercise their freedom without compromising audiences by staying within what is morally/legally acceptable.”

The discussion on media freedom vis-à-vis public interest role is incomplete without examining how it accommodates the next generation of journalists weaned on changing cultural ethos and constitutional dispensation. For instance, how are the youth and women, involved in driving the media agenda? What about the voice of marginalised groups or the disabled? The Constitution requires the media to recognise them but is it happening?

On March 8, the International Women’s Day, a study of Kenya Media and Women in Political News, was released by African Women and Child Feature Service.

Overall, there are more men than women in Kenyan media. Men make up majority of media owners and top managers and invariably ignore women issues save for when they portray them as sex objects to boost their sales.

The same report showed stories reported on television, radio and newspapers, those by female reporters accounted for 32 per cent compared to 53 per cent by men. Could media be gagging itself by

A recent example was on the wage bill debate at a Cabinet retreat in Mount Kenya, when The Standard newspaper did an expose on the amount of money used by the state as Sh100 million. It was a public interest story, but it got some figures wrong. This hurt its credibility, especially after an apology by the publication’s top management.

Internal threats exist, too. For instance, media ownership interests can work against professionalism and public good.

Here, the ‘gatekeeper’ role is critical. Can they, for instance, stand up for the public interest against ownership and commercial interests? Cases of friendship, political and religious affiliations, ethnic considerations among other non-professional interests that relegate to public good, are galore in the media.

Sadly, the plurality of channels has yet to give birth to plurality of expression and presentation. Tom Osanjo, a long time journalist and UN Habitat writer in Advocacy Outreach and Communications, says the media should not be muzzled but rather be allowed to self-regulate. The threat to media is a never-ending war and a continuing debate, difficult to conclude, but strides must be made, one journalist at a time.

Anne Mbotela is an Editor at the People Newspaper. annembotela@yahoo.com

Your right to throw a punch ends where my nose begins If those in authority support the collective good of the public, they should strive for an enabling environment for a reasonably free Press, argues TOM OLANG’

T

he extent of freedom of expression may be summarised by the maxim that “your right to throw a punch ends where my nose begins.” The implication is although we live and practice in a fairly democratic society, freedom of expression, including that of the media, is not absolute. There is a caveat; a red line that must not be crossed.

Apart from existing legislation, there is a delicate balance between exercising free expression and being sensitive to the rights of others. The Free Legal Dictionary defines freedom of the press or freedom of the media as the right of communication and expression through electronic media and published media, or even orally. Thus, when media practitioners are free to gather and disseminate information using any media at their disposal, and the public is free to consume it, and then there exists a climate of media freedom.

The Constitution attempts to protect rights on both sides of the divide, though.

According to the Bill of Rights, every person has the right to freedom of expression. However, the said right does

not extend hate speech, advocacy of hatred or incitement (Article 33). The law ensures no rogue journalist publishes or airs content indiscriminately. Article 1(a) of the Code of Conduct for the Practice of Journalism in Kenya states: “The fundamental objective of a journalist is to write a fair, accurate and an unbiased story on matters of public interest.

All sides of the story shall be reported, wherever possible. Comments should be obtained from anyone mentioned in an unfavourable context.”

t o

A number of media practitioners have been overheard blatantly claiming, “We have freedom of the media. We can write what we damn well please!” The truth is that the freedom is far from unfettered; indeed, in some cases, it is a question of ‘publish and be damned.’ Yes, Article 19 of the United Nation’s Declaration of Human Rights advocates for freedom of expression, but to say that freedom is absolute is a fallacy. The convention declares: “Everyone has the right to freedom of opinion and expression; 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.”

There is a close link between media, commercial and political interests; and all these must be balanced with social responsibility to society by industry practitioners and news sources alike. Of course, there is the protracted argument that journalists are capable of ‘self-regulation’- another misnomer.

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There is also the question of media ethics and even more stringent laws regulating media practice in Kenya, but that is as far as the story stretches. The reality on the ground is that some local and regional journalists are either poorly trained for the trade, incapable of ethical mien, or are simply quacks and masqueradors.

But it is easy to blame the hawk for devouring chicken and forget that the chicken occasionally provokes the hawk. The moral of this metaphor is that both the media and the authorities have their own excesses and vested interests, which impact on information. Unfettered freedom of the media is more dangerous than loose cannon. Conversely, a sterile press is no better than a lapdog and cannot execute the traditional watchdog role.

Ideally, what is good for the goose is good for the gander-or at least should be so.

Thus, if the authorities and lawmakers are supportive of the collective good of the public, they should strive for an enabling environment for a reasonably free press.

The press and authorities should collaborate in setting the country’s economic agenda. Such a relationship should thrive without the media compromising standards or their watchdog role. Unfortunately, this has not always been the case.

A couple of scenarios make the conduct of journalists suspect. On one hand, there

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is a calibre of journalists who have metamorphosed into ‘Mpesa’ scribes. They are in it for the money and act on the whims of business magnates to set selfish agenda - a pack of lapdogs. A section of journalists has abandoned their watchdog role, and are instead playing ‘safe journalism’. Like the proverbial wise monkey, they say no evil, see no evil and hear no evil. On the other hand, the authorities and commercial interests have conspired to either gag or compromise the media.

In the process, journalism is slowly becoming a life-threatening profession, if the sporadic attacks on journalists by policemen or hired goons are anything to go by.

A casual trace of the historical pathway of media freedom in Kenya reveals a flip-flopping demeanour. Such that when it seems the press has made significant gains in attaining ‘free space,’ these are again reversed with renewed legislative impunity, whose fine print spells doom for the industry. For instance, the prescribed penalty in the Media Act 2013 smacks of hitting a mosquito with a hammer. One wonders whether the legislators who crafted and endorsed the bill are keen on stifling or promoting media freedom; or merely acting on the whims of puppeteers. Such punitive civil liability is wont to create a chilling effect on reporters since it lacks the so-called ‘spirit of the law.’

Forced self-censorship would be just as stifling as direct censorship.

Needless to reiterate, media freedom must be accompanied by an equal or even greater measure of responsibility on the part of industry practitioners. In a situation where both the media and newsmakers exercise self-restrain, there would be no altercations between them. A rogue media would serve no purpose apart from creating undue acrimony. Press freedom should translate to safeguarding public interest rather than serving parochial interests of media owners, editors, politicians and other gatekeepers. In the same vein, self-regulated practitioners should exercise prior restraint and publish or broadcast content without compromising the law or individual rights. Competing societal interests automatically limits the unbridled exercise of free expression.

John Herbert aptly puts it in his book, Journalism in the Digital Age: “With freedom comes responsibility. Journalists must not abuse either, but must always uphold the freedom of the press and of the law. Press reporting is always constrained by the relevant laws of the land.

In other words, journalists have freedom to report, but only up to a point!”

Even the US, which is touted as the paragon of democracy, has not sanctioned unchecked media freedom. However, the First Amendment of the US Constitution insists that the press’s right of free expression must accommodate competing rights of the public. The Kenyan Judiciary should benchmark with its US counterpart. Following the enactment of draco-

nian libel laws, the US Supreme Court recently whipped out a $500,000 awarded to Public Safety Commissioner L.B. Sullivan under Alabama State Law. That is a landmark ruling that reflects the spirit rather than letter of the law.

Law don, Koki Muli, in an essay entitled, Reflections About the Events at KICC on 27-31 December 2007, wrote: “Privately owned media, allowed to operate only in the 1990s, generally censor themselves or adopt self-interested editorial policies.

Therefore, there is no free and balanced media house in Kenya.” Let nobody cheat you that state-funded media are the only culprits in propagating adulterated content; private media is just as stained. As columnist Will Hurton rightly noted in an article published in the London-based The Observer, on March 16, 2014: “Private disseminators of information are not disinterested guardians of the public good.

They, too, have political and social agendas. Nor are they guaranteed to behave ethically and professionally. Moreover, private power has become steadily more potent, more unaccountable and more willing than ever to exert overt political force.” There you go! If you thought private media is ‘independent,’ think again since they are not; not even in the developed world where media practice has ostensibly come of age.

A BBC Policy Briefing Report released in April 2008 after the 2007/2008 postpoll violence stated that some media

houses promoted civic and voter education; others fuelled ethnic tensions, propagated hate speech; some restricted content and access by the public, took political sides and even snubbed sources and parties they did not associate with.

This (mis)behaviour is a pointer that the media cannot be trusted per se with public interest as they can easily be swayed to impartiality, or even arm-twisted by the powers that be.

During the electioneering period, for instance, it is easy to note that a media house’s content or drift of analysis is skewed towards/against certain political wings or bigwigs. During the 2005 referendum and the past two elections, the local media were allegedly subtly co-opted and corrupted in a grand scheme that was certainly not in keeping with a free press. Thus, the independence of the media was sacrificed in the altar of expediency to suit the interests of cliques. To quote Hurton again, “That is not press freedom; it is arbitrary press power.”

Admittedly, unbridled freedom can easily beget rogue journalism; while gagging the media is counter-effective to the democratic process. While everyone has a right to free expression “without interference by public authority and regardless of frontiers,” due diligence is paramount on a mutual scale. Indeed, since ‘information is power’, its access, processing and dissemination has to be subjected to such conditions, restrictions and penalties as

prescribed by law but within the realm of democratic ideals. Self-censorship aside, such checks and balances are necessary to guard against the abuse of freedom and responsibility by way of libel, defamation, contempt of court, and infringement of copyright.

In view of the foregoing, checking the media - at least within agreeable parameters - is necessary in a democratic society in the interest of national security, territorial integrity, and public safety. Since journalism has civic functions, limited restriction is critical for the prevention of disorder, lawlessness; protection of health and morals; and protection of the reputation or the rights of others; preventing disclosure of information received in confidence; or maintaining the independence of the Judiciary.

As John Herbert observes, “Press reporting is always constrained by the relevant laws of the land. In other words, journalists have freedom to report, but only up to a point!” Thus, ethical considerations, counterbalanced with appropriate legislation, goodwill, utmost good faith, and a high sense of responsibility are necessary ingredients for the media to maintain their traditional watchdog role.

Tom Olang’ is a freelance journalist and media scholar at Daystar University, Nairobi. olangtom@yahoo.com

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The challenges and way forward in reporting terror We are faced with the choice of the right to know and right to security and protection in this unconventional war against an enemy within, argues MWENDA NJOKA “The media should avoid presenting acts of violence, armed robberies, banditry and terrorist activities in a manner that glorifies such anti-social conduct. Also, newspapers should not allow their columns to be used for writings which tend to encourage or glorify social evils, warlike activities, ethnic, racial or religious hostilities.”

—Article 22 of the Code of Conduct for the Practice of Journalism in Kenya (2007) When the traditional secrecy around National Security is viewed against the background of the public’s right to access detailed information on operations and plans of secu-

The aftermath of a recent terror attack in the Kenyan capital Nairobi.

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rity agencies, the dual perspectives are often perceived as two doctrines pulling in different directions with each claiming to be acting in the name of “protecting public interest.”

By virtue of being the public watchdog, the media expects and indeed demands unfettered access to information held by public bodies including security agencies.

On the other hand, security agencies, by the nature of their business, are not particularly inclined to share information with the public; media included arguing that doing so may compromise their operations.

So, given the wide chasm between these two divergent standpoints on what is “in the best public interest”, how does a country bridge the gap to ensure the public’s right to know is respected while at the same time guaranteeing that doing so does not compromise the public’s right to security and protection by security agencies?

One school of thought holds that: “Legitimate (emphasis mine) national security interests are, in practice, best protected when the public is well informed about the State’s activities, including those undertaken to protect national security.”

Be that as it may, who then should determine what these ‘Legitimate national security interests’ are? Should the determination of this be left to the public, the media, civil society or security agencies?

Or should the matter be left to the laisez faire principle of decisions-on-the-go?

In a state of war (and it may be righty argued Kenya is in a state of war with Al Shabaab) , citizens are expected to weigh between the right to know and the right to security and protection.

And the presupposition here is that any reasonable person would (or should) choose the right to security and protection under such circumstances. But such choices become crystal clear only in a situation of conventional warfare. And terrorism is not conventional warfare.

fear and panic among innocent citizens.

Before the threat of terrorism moved from the confines of being an isolated problem between Middle East countries and Israel, many nations defined “state of war” in conventional terms where you had uniformed armies of two states facing each other in conventional combat. This was the symmetrical warfare.

From the Bali sequential bomb attacks in October 2002 to the recent Westgate Shopping Mall attack in September 2013, terrorists have created spectacles that had mass media enthralled and spellbound in a relationship reminiscent of a snake charmer and his pet.

But the internationalisation of terrorism in recent years has created a complete paradigm shift. Today, nations find themselves in a “state of war” without having a clear, uniformed and discernible enemy in sight. Welcome to the new brave world where the enemy lives within. This is the world of asymmetrical warfare .

The changing security environment, the changing rules of engagement as well as the anyone-and-anything-is-fair-game approach adopted by terrorist groups in their target selection calls for a complete overhaul in the way we look at the public’s right to know versus the security agencies’ right to keep secrets, or at least some.

I posit that the public’s right to know is an important pillar of democracy. Indeed, the public’s right to know might be described as the oxygen that drives democracy. But, paradoxically, the flip side is that it is this same oxygen of publicity generated by the public’s right know, which often feeds the embers that stoke the fires of terrorism.

Counter-terrorism experts argue that it is the emergence of the information revolution leading to development of new and expansive communication possibilities with instant worldwide reach that gave birth to the phenomenon of mega terrorism.

This argument presupposes that without the oxygen of publicity, terrorism might not have grown as fast because terrorists seek to manipulate and exploit the mass media to advance their agenda of creating

Recent studies have demonstrated that terrorists select targets that will generate maximum publicity holding local and international media’s attention for the longest possible periods of time .

Such unimaginable acts of mayhem produce round-the-clock soap-opera-like sensational news coverage rivaled only by the World Cup Football or perhaps the Olympics.

To complete the picture, such news coverage is not complete without an on-the-set analyst giving a blow-by-blow instant-coffee account of where security forces are failing, where they should up their game and how the terrorists are outsmarting the security forces. Everything has been reduced and redefined in simplistic sound bites of a horse race.

Therefore, at the end of the ‘live-show’, you might even be treated to a ‘Big Question’, which goes something like this: •

“Do you think terrorists have better tactics than our security forces?” or

•

“In a scale of one to ten, where would you rate the tactical strength of terrorist Vis-à-vis those of security forces.”

Because of the global-reach of the modern day news media and the emerging phenomenon where the more salacious the ‘better and bigger’ the news, an incident of a terrorist group holding hostage a shopping mall in Nairobi becomes instant international hit on all the world’s major news channels.

Walking the tight rope And now back to the other big question: How do we balance between preservation of national security and the public’s right to information pertaining operations of security agencies?

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Images from the September 2013 terror attacks at the Westgate Shopping Mall in Nairobi

In the old days when combatants were clear and well defined, it was easy to deal with some of these challenges. But today when the enemy has adopted the characteristics and fluidity of water, the situation has become complex .

The biggest challenge is identifying, isolating and extricating the enemy from within while at the same time respecting the fundamental rights of innocent individuals. To achieve these objectives, security agents often have to operate under conditions and use tactics whose disclosure could compromise entire operations and even put their lives at risk.

It is for such reasons that security agencies shun any moves that could lead to disclosure of specific measures, tactics and strategies being employed to protect territorial integrity and critical infrastructure from threat of sabotage, violence and terrorism because the success and

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effectiveness of such strategies greatly depend on secrecy.

Under such circumstances, the existence of an increasingly symbiotic relationship between mass media (and its quest for numbers) on one hand and terrorists and their desire to create bigger and more awesome ‘news events’ are often viewed in many quarters as a big impediment to counter terrorism strategies.

It therefore behooves on responsible journalists to weigh the gains of a sensational terror story against the grave consequences of terrorism. This is the professional tightrope all conscientious journalists world over must walk over.

Perhaps it is time the idea of starving terrorists off the oxygen of publicity was utilised as a strategy in counter terrorism (CT) activities.

Here in Kenya, the media, security players and other relevant stakeholders should explore possibilities of coming up with guidelines for covering terrorism in a manner that does fuel or embolden them while at the same time scaring away everyone else.

As things stand, neither the Johannesburg nor the Tshwane Principles or the Media Council Code of Conduct adequately addresses the dilemma and delicate balance between the right to access information on security matters, and the contradicting though often legit need to embargo certain information from being aired or printed if doing so will embolden terrorists.

Mwenda Njoka is a former journalist now working as the Communications Director in the Ministry of Interior & Coordination of National Government. mwenda. njoka@gmail.com

The discontents and anxieties of social media The double-edged sword calls for even more fact-checking and professionalisation of journalism and adherence to ethics, writes GEORGE NYABUGA

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ocial media is a double-edged sword. The Internet, as the mother and key driver of social media, is considered a major innovation that democratises and enriches media experiences. It is the freedom technology. It decentralises and reduces cost of information sourcing and publication; helps circumvent gatekeepers like editors, media managers and even owners.

It promotes interactive communication, and dismantles temporal and spatial strictures common with traditional modes of mass media communication.

But while it provides numerous opportunities and offers ammunition to foil or resist the power and influence of commercial mainstream media, the rapid diffusion and use of technology, especially mobile telephony and the Internet and their progenies – the social media – by the young, techno-savvy digerati continues to excite and worry users and non-users alike. Specifically, the increasing deployment of social media and networking sites such as Facebook, Twitter, Bebo, Myspace, YouTube, Instagram, Flickr and others even by established media to communicate and share content has engendered seri-

ous policy, ethical and legal dilemmas and concerns particularly due to the fact that some users often do not think critically about the consequences of the information published therein, and their use in the reproduction and redistribution of the same or manipulated content. Granted, the use of social media is largely neutral and their utility is determined by modes of use rather than mere access or availability. In other words, whether they are good or bad depends on individual use.

Nonetheless, whereas the concerns are sometimes the work of the moral police worried about the ‘destructive’ effects of the social media often beyond the reach of state moral and security apparatuses, there are examples to illustrate the ‘destructive nature’ of social media, which may genuinely worry the technophobes, neo-Luddites and moralists among us.

Three stories, detailed below, may help illustrate the foregoing arguments.

At the height of former Chief Registrar of the Judiciary Gladys Shollei’s saga in September 2013, The Standard, as part of its ‘investigations’ into the ‘Shollei removal’ plot, published a series of stories based on emails between Chief Justice Willy Mutunga and his ‘co-plotters’. While the emails and the story were interesting insights into the intrigues at the Judiciary, they raised serious questions about information sourcing in what is today’s information society where the use of technology is part and parcel of our everyday lives. They also raised serious questions on information sourcing, the use of ‘criminal hacking’ in the competitive world of investigative journalism and surveillance.

“The Judiciary leadership is determined to eliminate this surveillance culture by closing in on the small, cowardly and criminal enterprise that believes it can violate official and private communication at will.

Anyone who can hack an email can also doctor documents,” responded Kwamchetsi Makokha apparently on behalf of the Chief Justice.

This was followed by another statement from Dr Mutunga arguing thus: “For a while, the Judiciary has been grappling with the vulnerability of its communication, which has manifested itself in hacked e-mail accounts, tapping of telephones, secret tapping of meetings and doctoring of official documents. The prevalence of these surveillance tactics has concerned the institution a great deal.”

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The Kenya Magistrates and Judges Association (KMJA) also weighed in, with its president Justice Martha Koome worried about the use of technology and its overall impact on the Judiciary, the dispensation of justice and security of its members. “We are wondering whether to continue using technology that the Judiciary has heavily invested in or return to our analogical way of doing our work.

If the privacy of the Chief Justice can be intruded, how about our members? How about the privacy of our work which is key to maintaining our integrity and independence? Who is hacking and doctoring the Chief Justice’s emails?” she posed.

In 2012, the Nation online published an upsetting story of the rape of a girl in Central Kenya. In their rush to publish the story, the Nation published the name of the victim’s father. The publication generated a barrage of scolding responses accusing the Nation of being insensitive to the plight of the girl, being unprofessional and unethical. Despite the fact that the Nation did not publish the name of the girl, the mention of the victim’s father’s name was by extension revealing the identity of the traumatised girl. Even though the Nation revised the story a few hours later and removed the father’s 44

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name, the damage had already been done on 15 April 2013, the annual Boston Marathon was hit by two bomb attacks killing three people and injuring more than 260. Following that attack, Sunil Tripathi, a student who had apparently suspended university studies a month or so earlier, was wrongly accused of being the Boston Marathon bomber. When the FBI released the two photos of the suspects, a Reddit user posted side-by-side pictures of Tripathi as the suspect. That soon went viral.

As the social media frenzy built up, several media organisations ran with the story.

Thereafter Tripathi Facebook page was reportedly flooded with threats and angry messages. The family closed the page.

This only incited yet more speculation from journalists who reasoned without any proof that the family had recognised Tripathi from the FBI pictures. One Twitter user apparently claimed Tripathi had been named as a suspect by the police – an untrue accusation. Several journalists with large Twitter followings began to retweet the false information. In less than 12 hours Tripathi had become the Boston Marathon ‘bomber’.

Although the NBC and the Associated Press later announced that Tripathi was

not a suspect, the damage was already done and his reputation undoubtedly irreparably destroyed. On 23 April 2013, Sunil Tripathi was found dead in the Providence River in Rhode Island.

Although there is no evidence to link the death to publication of the accusations on mainstream media, Facebook and Twitter, the story raises numerous ethical and legal concerns, what the Ethical Journalism Network call “a shocking case study of the threat posed to the open information society when social networks get into a frenzy and when journalists abandon their ethical duties. … Behind this story is a troubling context which reveals how rumour, speculation and dangerous lies buttressed by social media and journalists who fail to check their facts can distort the truth and ruin lives. … It is a reminder that in the digital age we need more ethical journalism, more fact-checking, and more time to consider the impact of halftruths and sensationalism. At times of crisis people need access to reliable and trustworthy information, the problem is how to get it to them in an age when much of journalism and social media are overwhelmed by a rush to publish at the expense of truth and accuracy.”

The three stories demonstrate the problem with the use of technology in modern journalism where the rush to publish is often superseded by the respect for journalistic ethics. They also raise questions about the ability of editors and media managers to critically think about the consequences of their actions. What’s more, they engender concerns about the rising reproduction, and distribution or sharing of the material by others via Twitter and Facebook and harm or damage that can cause to the health and reputations of victims of rape or false accusations and rumours. Besides, they also impact copyright (who owns the copyright to retweeted or republished content?), and raise questions about the reproduction and redistribution of (defamatory, and even immoral) content.

Take Jackal News (and by extension blogs) in Kenya, for example. While it is a great site for gossip, the publication of highly defamatory material on the site has raised serious legal and ethical questions. Has Jackal News got away with murder? Yes! Definitely. Does Jackal News respect people’s rights, privacy? The answer is most likely no. They publish, and don’t care to be damned! Theirs border on extreme, although sometimes they publish what the mainstream commercial media, due to political, commercial, entrepreneurial, ethical and legal considerations/interests and pressures that may hurt their financial bottom-lines and ‘professionalism’ and ‘ethical’ reputations, cannot dare touch.

Although there may be some justification, especially if there is a compelling reason for the public to know, their publication of nude photographs of celebrities and other private and public citizens, ‘damaging’ rumours as ‘truth’, and invective articles, raises eyebrows even among the most hardened defenders of press freedom and rights of expression. Although they often claim freedom of press/media, the public’s ‘right to know’, and freedom of expression, their articles do not respect others’ freedoms. Clearly, their publication of damaging material most

A social media enthusiast catching up with updates on her facebook account.

likely ruins personal reputations, careers, and relationships. Even if they delete the material from their sites, oftentimes the damage has been done. Worse still, the word apology hardly exists in their vocabulary.

Such modi operandi undoubtedly offends basic journalistic and media tenets. While they can broadly be called writers (perhaps with genuine interest and affinity for writing, and sometimes rabble-rousing), they are not necessarily journalists, and thus may not be expected to understand and apply media law and ethics in their practices, the maxim that ignorance is no defence notwithstanding. This begs the question: Should people (and by extension bloggers) who practice online journalism without the requisite journalistic training, and understanding of, respect for and application of key principles of journalism be called journalists? What are their legal rights? Can they claim the same rights as ‘professional’ journalists?

Can people who tweet, blog, write or comment online be held accountable for their actions? These are fundamentally important questions particularly in an era where professionalisation of journalism is becoming urgent due to some foregoing discussions and rising concerns about bastardisation of journalistic practices.

Whereas the laws, policies and social rules that apply to offline publications, social media practitioners seem either ignorant of such principles, flout them or operate with impunity particularly because of the veil the Internet and such technologies provide. Accordingly, people who may shy away from publishing defamatory and damaging rumours, half-truths and other material in print and broadcast media, often feel unaccountable for their online actions. And as the Ethical Journalism Network says, we need more ethical journalism, more fact-checking, and more time to consider the impact of half-truths and sensationalism even in the in digital age where there is an overwhelming urge to “rush to publish at the expense of truth and accuracy.” In essence, even though the rising use of technologies and social media can be considered both an opportunity and a curse, depending on individual persuasion, it somewhat upholds the double-edged sword thesis.

Dr. George Nyabuga is a lecturer at the University of Nairobi’s School of Journalism and Mass Communication. gnyabuga@uonbi.ac.ke

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Complaints Commission of the Media Council of Kenya Section 27 of the Media Council Act 2013 establishes a seven (7) member Complaints Commission independent from the Council to enforce media standards set the by the Council.

Functions a. Mediate or adjudicate in disputes between the government and the media and between the public and the media and intra media on ethical issues; b. Ensure the adherence to high standards of journalism as provided for in the code of conduct for the practice of journalism in Kenya; and c. Achieve impartial, speedy and cost effective settlement of complaints against journalists and media enterprises, without fear or favour.

The media arbitration service is provided FREE OF CHARGE and is independent of the Media and Government.

What Constitutes a Complaint? 端 Breach of the Code of Conduct for the Practice of Journalism set out in the Act for example for example fairness and accuracy, taste and tone in the publication or nonpublication of a news-item or statements 端 Freedom of the press being threatened or encroached upon through denial of facilities that helps in collection or dissemination of news or through threats, harassment or assault.

Further information on the procedure for lodging a complaint can be obtained from our website www.mediacouncil.or.ke.

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THE MEDIA OBSERVER JANUARY - MARCH 2014

Accreditation Pursuant to sections 4, 6(h), 23(c) and 46 of the Media Council Act no 46 of 2013, the Media Council of Kenya undertakes Annual Accreditation of journalists practicing in Kenya for purposes of compiling and maintaining a register of journalists, media practitioners, media enterprises and media training institutions in Kenya.

Accreditation fees • Local Journalist: Ksh 2,000 • Foreign Journalist: Ksh 10,000 • Foreign Journalist (Short Term - 3 Months): Ksh 5,000 • Student: Ksh 300 • Card Replacement Fee: Ksh 300 Requirements for Accreditation • A letter from the employer; • Freelance/journalists accrediting for the first time are required to produce a letter of reference from the organisation they correspond for, a portfolio of work done and proof of professional training; • A clear passport photograph taken on white background; • Accreditation fee (Ksh 2,000 for local journalists, Ksh 5,000 for foreign journalists staying for less than a year, Ksh 10,000 for foreign journalists staying for 1 year and Ksh 300 for students).

Students should produce a letter from school and a student ID. • Foreign Journalists are required to provide the following: • A letter from the employer • Professional Certificate that is either a Degree or Diploma in Communication from a recognised training institution • Portfolio of work done either in Print or Broadcast (Please provide the work not website links) in addition to a clear passport size digital photograph, a valid work permit and Passport.

Card Replacement: Lost press cards will only be replaced upon production of a police abstract and letter from the employer stating the loss.

IMPORTANT TO NOTE 1. Certificates and portfolio should be provided by ALL journalists accrediting for the first time with the Media Council of Kenya.

2. First year students are not eligible for accreditation.

Training institutions are advised to issue them with introduction letters when carrying out field based assignments.

In case of any queries, contact us at: accreditation@mediacouncil.or.ke

THE MEDIA OBSERVER JANUARY - MARCH 2014

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Promoting press freedom & responsible journalism THE MEDIA OBSERVER JANUARY - MARCH 2014