Long road to press freedom

Although the former regime stopped sending journalists to the infamous Nyayo House torture chambers a few years ago, 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 weak financially and most journalists poorly paid and thus prone to being bought off", observes Onyango Obbo, the Nation Media Group Managing Editor in charge of syndication.

Consequently, save for the awareness of the dangers posed to the press and its freedom, there is little to celebrate, as the same gagging judges are still on the bench and the repressive laws still intact in the statute books. The judges have taken the place of torturers through misapplication of libel laws and dubiously misinterpreted subjudice and contempt rules.

Justice and Constitutional Affairs minister Kiraitu Murungi admits that some judgements have never been influenced by law, but by politics. Murungi cites instances where cases against the press would be heard and determined within three weeks, while others would be left pending in courts for as long as 14 years. "This is a travesty of justice", he asserts. Murungi says the government is carrying out a radical surgery in the judiciary with a view to ensuring that courts are not used as instruments of killing press freedom and freedom of expression.

In Kenya, the notorious subjudice law still hangs over the heads of journalists. The principle of this law is to create caveats to demarcate what the media can comment on with the objective of ensuring that press reports do not influence a court ruling. But in principle, the practice has only served to gag the press.

There has been some degree of freedom, though. 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 (IPPG) saw and end to the criminalising of pres freedom and freedom of expression. Prior to the deal, the dreaded Special Branch, derisively referred to as the political police, would deem any article criticising 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 to worry about.

Courts have over the years awarded hefty damages against the media. However, it was in 2001 and 2002 that the highest awards were registered. Over these two years, the Kenyan courts awarded a total Sh 110 million (US$ 137500) in libel to four litigants. "The People Daily" was ordered to pay former cabinet minister Nicholas Biwott Sh 20 million (US$ 250000) 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 sh 30 million (US$ 375000) against British authors Dr 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 "Dr Ian West’s case book". A leading book store in Nairobi - Bookpoint - was ordered to pay Sh 10 million (US$ 125000) for selling the book. In total, Biwott was awarded Sh 60 million (US$ 750000), the highest made to any Kenyan so far.

In a separate case, the Nation Media Group was ordered to pay Sh 10 million in damages to a lawyer, while the East African Standard paid sh 20 million to lawyer Charles Kariuki. The "Kenya Times" also lost a US$ 125000 libel case against Waruhiu and Muite Company advocates.

But the hefty awards have not gone down well with those who are champions of press freedom. Speaking last month at the launch of a book titled "Media Law and Practice: The Kenyan jurisprudence" edited by David makali, the Law Society of Kenya (LSK) chairman Ahmednassir Abdullahi said the law enriched the aggrieved parties instead of compensating them, which is against the spirit of the law. Said he: "Courts should protect individuals against defamation but it should not appear as if judges are protective to the point of infringing on the rights of the press".

According to a Nairobi advocate Kibe Mungai, the Defamation Act - which came into force in 1992 was "unnecessary, dubious and has done more harm than good to Kenya’s democracy".

Even with the new government in power, a lot is yet to be done in the area of press freedom. The only tangible action so far was the move a few months ago by Transport and Communications minister John Michuki to seize unused broadcast frequencies from the Kenya Broadcasting Corporation (KBC) and reallocate them to other deserving media.

One pending issue, though, is a plan to consolidate the process of issuing radio and TV licences and allocating broadcast frequencies under a single government department. Currently, licences are obtained from the Information and Tourism ministry while broadcast frequencies are issued by the Communications Commission of Kenya, a department in the Ministry of Transport and Communications.

It is, however, worth noting that the government has promised to repeal the draconian media low which was enacted by the former regime last year. The Books and Newspapers Act, under the Statutes Law (Miscellaneous) Amendment Bill (2002) was signed into law by former President Daniel arap Moi in June 2002. Under the Act, anybody seeking to publish a newspaper has to sign a bond of Sh 1 million (US$ 13000), up from Sh 10000 9US$ 130). Failure to comply attracts a fine of US$ 13000 or a three- year jail term.

Although press freedom has not been fully achieved in Kenya, media experts are almost unanimous that there has been a considerable degree of improvement. Herman Igambi, Editor-in Chief of Citizen Radio and Television says: "I have been in the media since independence, and I can say there has been a remarkable press freedom in this country. What remains is self-censorship by some editors. Nobody in the government calls news rooms to kill stories".

Wachira Waruru, the group managing editor of "The East African Standard" expresses similar sentiments: "The Kenyan press has come a long way. We have more freedom than we used to have in the past, but there are some hurdles which have been placed to muzzle the press, especially punitive legislation which poses a threat to us. Such legislation needs to be done away with".