Initially, there was relative press freedom in independent Kenya under Jomo Kenyatta – with the emphasis being on “relative” – but the situation deteriorated during the rule Daniel Arap Moi. This continued under the Kibaki administration, and it is only under the new constitution, since August 2010, that the right to media freedom is guaranteed. By ZACHARY OCHIENG.
Even as Kenya celebrated 47 years of independence last December, total press freedom has long been a pipe dream, despite the fact the country maintains one of the most vibrant media outlets on the continent. The country’s founding president, Jomo Kenyatta, who ruled Kenya from independence in 1963 to 1978 when he died in office, did not gag the media. However, a cabal of ministers around him frequently made telephone calls to newsrooms, ostensibly to have some sensitive stories killed.
In Kenyatta’s own words, the media was supposed to be free, as long as it exercised responsibility. At independence, the media in Kenya was foreign-owned, but supported the government a great deal. This could explain why the government saw no need to own it, save for state TV and radio. But all this changed in 1978 when Daniel Arap Moi came to power. The ruling party, the Kenya African National Union, immediately bought the Nairobi Times and renamed it the Kenya Times. The daily newspaper became a government mouthpiece, with subjective and biased reporting being the order of the day. However, the paper could not survive after Moi’s exit in 2002 and has since folded.
As the Kenyan media struggles to become vibrant, there is little to celebrate. The same gagging judges are still on the bench, although they will soon be vetted, as required by the new constitution. These judges have taken the place of torturers through misapplication of libel laws and dubiously misinterpreted sub judice and contempt rules. In Kenya, the principle of the notorious sub judice law is to create caveats to demarcate what the media can report on, to ensure press reports do not influence a court ruling. But in principle, the practice has served only to gag the press.
Although journalists are no longer taken to the infamous Nyayo House torture chambers, as was the case during the Moi regime, the infrastructure of repression has not been completely dismantled. “The enemies of press freedom have not changed. They remain the ruling party thugs who threaten and beat up journalists, hostile courts which award crippling damages against the media and poverty which leaves papers financially weak and most journalists poorly paid and prone to being bought off,” wrote Charles Onyango Obbo, the Nation Media Group’s executive editor, in one of his columns.
But over the years, the media has gained some degree of freedom. The greatest achievement in the fight for press freedom came in 1997 with the repeal of the sedition laws. The repeal, negotiated under the inter-parties outfit (the inter-parties parliamentary group) saw an end to the criminalising of press freedom and freedom of expression. Prior to the deal, the dreaded Special Branch, derisively referred to as the “political police”, would deem any article critical of the government as seditious. The authors of such articles, once taken to court, would be handed down lengthy prison terms. With the writers of such articles already in jail, editors of such publications would then be left with libel and treason charges to worry about.
Over the years, courts have awarded hefty damages against the media. However, it was in 2001 and 2002 that the highest awards were registered. In those two years, Kenyan courts awarded a total of $1,375,000 in libel cases to four litigants. The People Daily was ordered to pay former cabinet minister Nicholas Biwott $250,000 for a 1999 story on the Turkwell Hydro-Electric Power project, which his lawyers argued depicted him as a corrupt man.
In December 2000, Biwott was awarded $375,000 in damages payable by British authors Ian West and Chester Stern for implicating him in the murder of former foreign affairs minister Robert Ouko. The alleged libel was contained in a book called West's case book. A leading book store in Nairobi, Bookpoint, was ordered to pay $125,000 for selling the book. In total, Biwott was awarded $750,000 in damages, the highest amount granted to any Kenyan. Justice Alnashir Visram, the judge who made the award, was recently nominated by President Mwai Kibaki as the new chief justice, but civil society organisations have rejected him on the basis that he will not uphold freedom of expression as enshrined in the new constitution.
At the height of the Moi dictatorship throughout 1980s and 1990s, the press was under constant government attack, with journalists and editors being arrested and detained. Even under the Kibaki administration, media harassment didn't cease. On the eve of World Press Freedom Day in 2005, first lady Lucy Kibaki stormed the Nation Media Group newsroom and held journalists and editors hostage for five hours, allegedly to protest against bad publicity the first family was receiving. She also slapped a KTN TV cameraman who was filming the protest, and destroyed his camera. When the cameraman, Derrick Otieno, went to court, attorney-general Amos Wako moved to terminate the case against the first lady. Fearing for his life, the cameraman fled to South Africa.
But what surprised observers most was that Kibaki’s National Rainbow Coalition (Narc) government, elected on a reform platform and riding on the back of a free press, eventually turned against the fourth estate, harassing and intimidating journalists in a manner reminiscent of the dark days of single-party dictatorship. In what could be described as a case of a revolution eating its own children, press freedom suffered a major blow in March 2006 when the internal security minister John Michuki ordered a police raid on the Standard Group of companies, resulting in costly damages.
In an unprecedented draconian assault on the media, about 30 heavily armed and hooded police from the elite Kanga squad, ostensibly formed a year earlier to fight armed and dangerous criminals, descended on the Standard Group’s offices at midnight, beating up employees, breaking doors, stealing employees’ cellphones, yanking off CCTV cameras and carting away 20 computers. They later disabled KTN TV, keeping the channel off air for about 13 hours. The commando squad then proceeded to the Standard printing press, shot the gates open, disabled the plant and set on fire thousands of copies of the day’s edition that were just rolling off the press. The Standard is the oldest newspaper in the country, while its sister company, Kenya Television Network, is the premier private television channel.
To add insult to injury, the gang that raided the printing press comprised Caucasian men who hurled racist remarks at the employees found on duty. “I’m gonna smoke you. I’ll waste you niggers. Where are your mobile phones? We don’t have a problem with you. We have a problem with the administration,” screamed the gang leader. The foreigners were later identified as the two Armenian brothers, Artur Margaryan and Artur Sargsyan, who were enjoying state protection under the guise of being investors.
In justifying the raid, Michuki claimed that the Standard group was planning to publish articles that could instigate ethnic animosity, a claim that was dismissed by both the Standard Group and the opposition. “If you rattle a snake, you must be prepared to be bitten by it,” Michuki repeatedly shouted at journalists, who challenged him on the legality of the raid. A chorus of condemnation followed the raid. More than 27 envoys, including British, American and EU ambassadors, said the raid was in contradiction of positive gains made by the government on freedom of expression since coming to power in 2002. For its part, the International Federation of Journalists (IFJ) demanded an apology from the government. “What we have seen is a brutal and violent assault on press freedom,” said IFJ secretary-general Aidan White. “It is an unspeakable affront to democracy when a government turns to violence to stifle the voice of its media critics,” he said.
But that was not the first time the Narc administration targeted the media. In 2004, Standard editors David Makali and Kwamchetsi Makokha and writer Kamau Ngotho were taken to court for “stealing” a video tape that contained confessions of suspects in the murder of Odhiambo Mbai, then chairman of the devolution committee at the National Constitutional Conference. In the same year, Kiss FM Breakfast show presenters Caroline Mutoko and Walter Mongare were sued for defamation by water minister Martha Karua, after the station announced she was carjacked in the middle of the night on a lonely road, in the company of a Catholic priest, without her bodyguards.
The raid on the Standard Group mirrored a similar scenario in the early 1990s at the height of the clamour for political pluralism, when security agents raided printing presses of publications deemed to be anti-establishment. A number of journalists were detained on trumped-up charges and various publications proscribed. In 1992, CID officers hid at the entrance of Society magazine offices and pounced on journalists as they reported for work. Earlier, Society offices had been petrol-bombed by balaclava-wearing goons after another group had invaded the magazine’s printers and disabled the printing press.
The latest battle pitting the media against the government came early last year when the ministry of information and communications sneaked back contentious sections that had been deleted from the Kenya Communications Act 2008, following an outcry from the media owners. The offending sections were brought back in the form of regulations, the Kenya Communications (Broadcasting Regulations) 2009. The regulations were meant to restrict cross-media ownership, and reduce foreign content on radio and television, as well as giving the government powers to raid media houses and seize broadcasting equipment. The information and communications minister also sought to control content, as well as crafting apologies and shareholding patterns. The regulations also introduced punitive licensing procedures, as well as rules on such internal matters as advert placement and running time. It took the intervention of Prime Minister Raila Odinga and protests from the Media Owners Association, the Kenya Editors’ Guild and the Kenya Union of Journalists to have the regulations suspended. But equally important is the fact that the new constitution got rid of all the draconian laws.
Despite attempts to gag the media, the print media has remained relatively candid and independent. The mainstream media now boasts six dailies – The Daily Nation, The Standard, Taifa Leo, The Star, Business Daily and The People Daily. Save for Business Daily, all these dailies have Sunday sister publications. In addition, the Nation Media Group, the leading media house in East and Central Africa, also publishes The EastAfrican, a regional weekly newspaper. A number of monthly, bi-monthly and quarterly magazines, both local and foreign, also dot the newsstands.
The degree of media freedom currently being enjoyed has led to the mushrooming of the gutter press or the pink sheets, as they are popularly known. Their addresses or editors are not known and whatever they publish is mainly based on wild speculation. Ironically, people still buy them.
The liberalisation of the airwaves in early 2000 has given birth to several television and radio stations. Currently, there are eight free-to-air television channels and more than 40 radio stations. Though most of the stations are privately owned, the government owns the Kenya Broadcasting Corporation, the state broadcaster that runs both radio and TV stations. Other notable TV stations include NTV, run by the Nation Media Group, KTN run by the Standard Group and Citizen TV run by the Royal Media Services.
It is noteworthy that politicians have a high stake in these stations. Former president Daniel Arap Moi, for instance, has substantial shares in the Standard Group. Deputy prime minister and finance minister Uhuru Kenyatta, the son of the founding president, owns K24, a local TV station where former CNN anchor Jeff Koinange now works. The Kenyatta family also owns The People Daily, previously owned by politician Kenneth Matiba, as well as Kameme, a vernacular FM station that broadcasts in Kenyatta’s Kikuyu language. An emerging trend in the Kenyan media scene is cross-media ownership, where those running TV stations also have radio stations and publish newspapers. The Nation Media Group, for instance, as well as running the television station NTV in both Kenya and Uganda, also publishes three daily newspapers, two Sunday publications and a regional weekly newspaper. It also owns two FM radio stations, namely Easy FM and QFM.
Local as well as foreign investors own media in Kenya. The Aga Khan, for instance, has a majority stake in the Nation Media Group, while Ghanaian Patrick Quarcoo has interests in the Radio Africa group, which runs four FM stations, two TV stations, and a daily newspaper, The Star.
With the promulgation of the new constitution in August 2010, the media is poised to enjoy greater freedom. Article 33 of the constitution guarantees freedom of expression. Unlike the previous constitution, the current one also guarantees every citizen the right to access information held by both the state and private persons. The Official Secrets Act that previously hindered investigative journalism is now a thing of the past. The new constitution also gives state-owned media the freedom to determine their editorial content independently without interference from the government. FAM
Zachary Ochieng is a widely-travelled writer, editor, actor and theatre critic, who is based in Nairobi, Kenya. He is consulting editor at online publication News From Africa, and was previously editor at the Highway Africa News Agency, the pan-African online ICT portal produced by Rhodes University, South Africa. Ochieng is also East Africa’s senior correspondent for NewsAfrica, a monthly international news magazine published in London. Ochieng has reported on a wide range of issues from Asia, Europe and around Africa. He is the winner of five international journalism awards and in 2010 he was a finalist in the Diageo Africa Business Reporting Awards. You can read Ochieng's blog here.
Photo: A resident reads newspapers in a food shop in Nairobi's Kibera slums December 15, 2010. The International Criminal Court prosecutor named three Kenyan government ministers and a former police chief on Wednesday among six suspects behind the east African country's post-election violence in 2008. REUTERS/Noor Khamis