Nairobi Law Monthly - - Contents -

When the ideal of me­dia free­dom is dis­cussed, it is usu­ally in the sense of tol­er­ance for diver­gent opin­ion and ideas as a key as­pect to democ­racy. This pri­macy of this con­cept to­day is de­rived from the fact that we live in the age of the In­ter­net, where so­cial me­dia en­ables or­di­nary per­sons to add their voices to those of for­mal me­dia.

But the dream that the in­for­ma­tion age would bring greater en­light­en­ment and com­pel bet­ter ac­count­abil­ity is turn­ing out to be just that; a dream. Govern­ment is haunted by an ag­gres­sive me­dia. For as long as any­one can re­mem­ber, there have al­ways been at­tempts to limit or po­lice what or­di­nary cit­i­zens can re­port or say freely. When the lim­it­ing of free­doms of me­dia/ex­pres­sion hap­pens, it is of­ten un­der the guise of na­tional se­cu­rity/in­ter­est. In our age, this has been re­vised to in­clude cen­sor­ship on so­cial me­dia time lines, with govern­ment in­sist­ing that only ac­cred­ited jour­nal­ists can re­port cer­tain mat­ters. But ac­cred­i­ta­tion does not make the re­port­ing au­thor­i­ta­tive; it is a re­quire­ment that makes it le­gal for the State to pur­sue jour­nal­ists as in­di­vid­u­als or me­dia or­gan­i­sa­tions, should govern­ment not like what is re­ported.

When me­dia is de­scribed as the Fourth Es­tate, it is on the un­der­stand­ing that jour­nal­ists have a duty to rep­re­sent the in­ter­ests of “the peo­ple” in re­la­tion to the busi­ness and political elites who claim to be do­ing things in our in­ter­est. What we are wit­ness­ing in Kenya now is a sit­u­a­tion where this Fourth Es­tate has been so thor­oughly cowed and so ef­fec­tively bul­lied into sub­mis­sion through a co­or­di­nated ef­fort to black out in­for­ma­tion from the pub­lic.

Our wily govern­ment has, how­ever, con­ve­niently of­ten mis­led the pub­lic by sub­sti­tut­ing the word “pub­lic” with “na­tional” in ex­plain­ing tighter reg­u­la­tions. Na­tional in­ter­est is the sugar-coated term used to re­fer to state se­crecy, and is the jus­ti­fi­ca­tion for keep­ing things from the cit­i­zenry. Pub­lic in­ter­est, on the other hand, is about dis­clo­sure, the right of the peo­ple to know. It is this se­cond as­pect that is the over­rid­ing ob­jec­tive of the Fourth Es­tate.

The most vis­i­ble way through which govern­ment has done this is through the cre­ation of the cen­tral ad­ver­tis­ing agency, un­der the guise of ar­rest­ing waste and stream­lin­ing ex­pen­di­ture. The truth is that this agency was cre­ated to re­ward loyal me­dia or­gan­i­sa­tions, and pun­ish “er­rant” (vo­cal) ones. The edict is clear: tame your crit­ics or we starve you out of busi­ness. What is to be gleaned from this is that is that it is wrong to crit­i­cise govern­ment, be­cause govern­ment says so.

But who is to say the Pres­i­dent can­not be dis­par­aged, es­pe­cially where such dis­par­age­ment arises from ob­jec­tive, truth­ful anal­y­sis? Isn’t the whole idea of a free me­dia to fa­cil­i­tate the crit­i­cism, praise (where it is de­served), ques­tion­ing, and even in­sult­ing the govern­ment, if that is what it takes to cre­ate change?

Fail­ing on all indices of a free press

A key facet of a free press is its plu­ral­ity, in the sense of ac­com­mo­dat­ing diver­gent view­points, cul­tures and ide­ol­ogy. Cen­tral to this con­cept is the avail­abil­ity of in­for­ma­tion, its con­sump­tion and im­pact. Plu­ral­ity de­rives from the no­tion of a “mar­ket­place of ideas”, where di­ver­sity of con­tent sup­ply creates com­pe­ti­tion be­tween sup­pli­ers, and hence fa­cil­i­tates avail­abil­ity of opin­ion. This is im­por­tant be­cause it works against the wishes of the elite to ex­ert in­flu­ence through mo­nop­o­lis­tic ideas.

When a me­dia house gets to that point where it won’t pro­tect its own, it be­comes clear that be­sides los­ing the trust of the peo­ple, it has no busi­ness pre­tend­ing to check­mate govern­ment, the same govern­ment that com­pels it to chew and spit out its own brood.

Par­lia­ment has been at hand to ap­prove and rubber-stamp what vile reg­u­la­tions and poli­cies the Ex­ec­u­tive fan­cies on any par­tic­u­lar day. Since Ju­bilee took power, no less than three at­tempts have been made to con­dense the free­dom and space of me­dia. While ef­forts to stall im­ple­men­ta­tion of th­ese laws have so far suc­ceeded, govern­ment is not go­ing to fail for­ever.

They can sit on the fence and watch as the Pres­i­dency tears apart the Kenyan press, but, much as it be­longs to them, it is the elites and politi­cians who will suf­fer first, and most painfully, when democ­racy runs out even­tu­ally.^

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