Bill is in bad taste, does not pass the test of Kenya’s Constitution

Eliud Owalo
eliudowalo@gmail.com

The National Assembly yesterday passed the Multi Media Amendment Bill, 2013 which now awaits Presidential assent to become law. Just when Kenyans were still trying to come to terms with Inspector General of Police’s issuance of summonses to the Standard Group CEO and two investigative journalists John Alan Namu and Mohammed Ali over coverage of the Westgate terror attack, the National Assembly has dropped a bombshell.

Unless the President declines the invitation to sign the Bill into law, we are officially headed back to the dark days of media censorship. An eminent English writer once said: “Let us strike the key note before we pursue the tune’’. The key note is this; the State and all its organs are not the guarantors and or providers of media freedom, but the Constitution is. There can be no gainsaying the fact that under the new Constitution the National Assembly has the sole preserve of making and unmaking National legislation. However, this power is seriously circumscribed and fettered by other provisions of the Constitution which guarantees to every citizen the freedom of opinion and conscience (Article 32), freedom of expression (Article 33), freedom of the press and media (Article 34) and right of access to information (Article 35) of the Constitution.

Article 118 of the Constitution provides that where a right or fundamental freedom is to be limited by way of legislation (in the instant case the Multi-Media Amendment Bill, 2013), such law shall state that it is expressly intended to place limitations upon the following rights. What the Multi-Media amendment Bill, 2013 does is to mischievously take away from Kenyans with the left hand what the Constitution has granted on the right hand.

The Multi-Media Amendment Bill, 2013 breaches the Constitution as it purports to establish a complaints Tribunal whose composition totally excludes the Media fraternity in terms of representation and donates to the Cabinet Secretary for Information and Communication the exclusive power of appointment of membership to that Complaints Tribunal. It also purports to control media content by providing that at least 40 per cent of the media coverage or programs must have local content. The Bill also purports to give powers to the Complaints Commission the powers to impose fines of upto Sh20 million and Sh1 million to media stations and journalists respectively who air or carry content or coverage the state finds offensive. And I use the word “State’’ advisedly, since the membership to the Complaints Tribunal will be State appointees.

The effect of this draconian Bill will be to gag the media or at the very least to intimidate the media and take away from it the freedom to investigate, air and determine what to air out of fear of recrimination or being shut down as a result of hefty fines. The Tribunal will even have powers to shut down or suspend operations of a media house or revoke the license of a journalist.

Should Uhuru sign this Bill into law, the country will join the ranks of very few countries with the very dubious distinction of such a draconian law. It is my considered opinion that this could just be one stage in a well-choreographed scheme to revert Kenya back to dictatorship.