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New media law is oppressive and retrogressive

In early May, Kenyan legislators hurriedly passed through Parliament a bill that is bound to have far-reaching effects on the freedom of press in the country. President Daniel arap Moi has since signed into law the Media Bill requiring publishers to sign bonds of Sh1 million (US$12,990) to run newspapers and magazines in Kenya.
Clement Njoroge and Zachary Onyango

There's a note in the latest - and last - issue of Wajibu, a quarterly journal of social and religious concern that has been publishing for the last 17 years and is found on AFRICANEWS' website. "Wajibu has managed to survive periods of censorship as well as periods of penury," write the journal's editors. "But we are not in a position to sign a million shilling bond, nor will we be able to find someone to sign a surety for this amount."

The Wajibu editors' nightmare has come true. The Media Bill, which President Daniel arap Moi signed into law on June 5, requires publishers to sign bonds of Sh1 million (US$12,990) to run newspapers and magazines in Kenya. This has forced Wajibu and others like it to close down shop. "This bill seeks to muzzle what people can write" by posting the bond, says the notice in Wajibu.

Ironically, the final issue of Wajibu, titled "Constitution Making: An Opportunity for Nation Building," contained analysis and articles from many constitutional experts on all aspects of the constitution, an invaluable guide for those involved in, or following, movements of constitutional reform.

The Media Bill also introduces penalties against vendors selling publications whose publishers have not executed the bond.

"Signing the Bill into law was unreasonable, oppressive, and retrogressive for the President," said Ms Wakuraya Wanjohi, editor and publisher of Wajibu. "The President does not seem to care about this country." Ms Wanjohi could not understand why such a bill could be signed as a law in a country that claims to be democratic. "We could publish during the one party era, why can't we publish now that we are in multi-party democracy?" she laments.

The new law now establishes the position of a registrar of books and newspapers to oversee implementation of the law, which:

a) Requires all publishers who print their newspapers in Kenya to submit to the registrar two copies of the newspapers they prepare for sale or distribution;

b) Requires newspaper publishers to make annual returns to the registrar specifying any information as the registrar may prescribe, failure of which is attended by a heavy fine or imprisonment. Any publisher who fails to comply with these conditions as a first offender is liable to pay a fine of US$12, 990, or to imprisonment for a term not exceeding three years, or both. Subsequent offenders will be liable to imprisonment for a term not exceeding five years, and shall, in addition, be barred from printing any newspaper in Kenya or publishing any newspaper printed in Kenya;

c) Requires every publisher to execute, register and deliver to the registrar a bond of US$12, 990 with one or more sureties, as the security for or towards the payment of any monetary penalty that may at any time be adjudged against the publisher. The registrar may decline to approve a bond of surety hence technically shutting out a newspaper from publication. A heavy penalty like that imposed for failure to make returns is prescribed for printing a publication without a bond; and

Grants extra-ordinary power to any police officer to seize any newspaper, wherever found, which has been printed or published, in contravention of the Act. Neither a search warrant or a court order are necessary pre-conditions for the exercise of these police powers in addition to the discretion to seize any other evidence of the commission of an offence under the Act.

Most irrational off all is that the Bill introduces an offence of strict liability against distributors and vendors of books and newspapers.

This means that vendors and distributors must first satisfy themselves that the publications they are selling have met all of the conditions of the Act! Asked how he would be sure the papers he is selling have been bonded, Mr. Jared Juma, a newspaper vendor in Homa-Bay town, says: "It would be difficult but I think I should be enquiring from my distributor every morning." For vendors and distributors, the penalty for non-compliance is US$256, or a six-month custodial sentence, or both.

During debate on the Media Bill, opposition MP Dr. Mukhisa Kituyi argued that the law would not cripple publishers but would criminalize vendors, who would find it difficult to ascertain whether a publisher had executed a bond. Whereas the ruling party MPs argued that the bill would help check the mushrooming gutter press, Kituyi argued to the contrary. "In any case, everyone knows that the gutter press is a creation of politicians who want to besmirch one another," he said.

Another opposition MP, Ms. Martha Karua (Gichugu), described the law as "draconian and totally unjustified," asking Attorney General Amos Wako to instead bring an appropriate Media Bill aimed at self-regulation.

It is sad to note that President Moi assented to the bill barely a week after Kenya's media industry took a bold step towards self-regulation when it launched the Media Council on June 3. Note that this is the first time that the media in Kenya have come up with a self-regulatory body, independent of the government, and that will keep practicing journalists in check.

As expected, the bill elicited a wave of resentment from journalists, human rights groups, media owners, and other interest groups. The Kenya Union of Journalists (KUJ) describes the move as a betrayal of democracy. Said KUJ Secretary General Ezekiel Mutua: "This is the saddest and most unfortunate thing that has happened to the media industry in decades and it signifies government efforts to control the media under the use of regulation."

The Kenya Media Owners Association said the legislation was meant to curtail the freedom of expression by instilling fear in those involved in the distribution of newspapers and magazines. The Managing Director of Nation Newspapers Division, Mr. Evans Kidero, said: "We view this development with sadness and sympathy. We still hope reason will prevail."

And the chairman of the International Commission of Jurists (ICJ) Kenya chapter, Mr. Mohammed Nyaoga, said the bill's passing would interfere with the right of the public to information. "The passing of the bill has the effect of creating a censorship machinery and this will curtail the public's right to know as information passed will be limited," he said.

The bill has also elicited international condemnation. On May 12, the International Federation of Journalists (IFJ) petitioned President Moi not to assent to the bill. "This is an oppressive regulation that will damage press freedom," said IFJ Secretary General Aidan White at an international media conference in Slovania. And the International Press Institute (IPI) described the Media Bill as a form of censorship designed to gag the Kenyan media during the general election due in December.

The Media Bill - coming as it did at a time when Kenyan courts have been handing out hefty libel awards - has left media houses reeling in fear. Trade and Industry Minister Nicholas Biwott has been awarded a whopping US$780,000 in libel cases. On March 20, he was awarded US$256,000 against "The People," a local daily, for implicating him in corrupt deals related to one of Kenya's white elephants, the Turkwell Gorge hydroelectric power project.

And in December of the same year, Biwott was awarded US$84, 615 against two British authors - Dr. Ian West and Chester Stern - for implicating him in the 1990 murder of the then Minister of Foreign Affairs Dr. Robert Ouko in "Dr. West's Casebook." The court also ordered Nairobi's Bookpoint Bookshop and its proprietor Mr. Chandermohan Bahal to pay Biwott US$128,205 for selling the book.

Little wonder then that Biwott was the happiest man immediately the Media Bill was passed. "The issue is not the money but the remedy. The press should not cry after it has been penalised and should learn to accept responsibility for its actions," he said defiantly.

Although the bill has sent shockwaves in various media houses, press muzzling in Kenya is not unprecedented. In the run-up to the first multi-party elections in 1992, security agents frequently confiscated from newsstands publications that were perceived to be anti-establishment. Journalists working for those publications would be held incommunicado and trumped up charges preferred against them. Not to be spared were the editors and printers.

After all has been said and done, the Media Bill is a mockery of democracy. Ironically, it comes at a time when the government is talking tough on the importance of liberalisation of all sectors for economic growth. By deeming it fit to fasten its grip on the press, Kenya is sure to go the way of Zimbabwe.

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