In his regular column for the Daily Nation, Nic Cheeseman argues that the freedoms enshrined within the Kenyan constitution are currently under threat from the Kenya Information and Communication Bill (2013) and Miscellaneous Amendment Bill (2013).
The new Constitution was a great achievement. It seeks to protect freedom of speech and association and to reduce the powers of the central government. As I have argued before, it also played a key role in conferring legitimacy on the 2013 election as a result of the creation of the Supreme Court and 47 counties, and thus helped secure a peaceful election.
Now, just a few months after the election of the Jubilee government, the Constitution is under threat. Two pieces of legislation — one just passed, one just proposed — seek to reverse some of Kenya’s most important democratic gains. The first is the already notorious Kenya Information and Communication Bill 2013.
Despite strong opposition from across the political spectrum and civil society, MPs recently voted to establish a communications tribunal with the power to fine journalists who break a code of conduct. The magnitude of the fines — Sh20 million for media houses and Sh1 million for individual journalists — would effectively empower the commission to intimidate, and hence regulate the Kenyan media.
According to the chairman of Kenya Media Owners Association, Mr Kiprono Kittony, the Bill would take the country back to ‘the dark ages of media control’. This would be a sad development. One of the most impressive aspects of Kenya’s gradual democratisation has been the liberalisation of the media. Although considerable self-censorship continues, the Press carries a diverse range of views and, in stark contrast to many African countries, frequently reports on corruption and government failings.
Supporters of the legislation argue that it would not undermine the vibrancy of the Press and would only be used to ensure that the media is not irresponsible — that it does not, for example, publish hate speech or stories with no foundation. But we already have compelling evidence that this rosy interpretation of the Bill is misleading. Despite the greater media freedoms Kenyans enjoy today, political leaders have consistently sought to control the media when it has threatened their core interests.
Most recently, Kenya’s security chiefs warned journalists to be careful about how they cover the activities of the army and police after the media publicised cases of looting at the Westgate shopping mall. Muzzling the media would mean that Kenyans are kept in the dark about such abuses. In turn, this would exacerbate the culture of impunity and lead to more corruption and poorer quality legislation.
Moreover, the Bill is not only undemocratic, it is unconstitutional. Article 34 of the Constitution guarantees freedom of the media, and stipulates that the state shall not interfere with the broadcasting or production of information by the Press. If the legislation is signed into law, the Supreme Court should strike it down. (EDITORIAL: We will not give up the fight for a freer country)
The second worrying piece of legislation is the Miscellaneous Amendment Bill 2013, published on October 30 which seeks to regulate the finances and activities of non-governmental organisations (NGOs). In a bid to limit the influence of foreign governments in Kenya, Section 27 A(2) of the Bill proposes to cap the amount of funds that NGOs can receive from abroad to 15 per cent of their budget.
The only exemption will be if an NGO can prove that it requires the funds as a result of an ‘extraordinary circumstance’. Even if an NGO does receive permission to secure a higher proportion of its funds from abroad, the extra funds will not be paid directly to the NGO but through a federation. The overall impact of the law will be to weaken civil society and extend government control.
The momentum behind this legislation has been building for some time. As part of the campaign against former Prime Minister Raila Odinga and the electoral petitions lodged by Cord and Africog, some Jubilee Alliance activists claimed there was a ‘web’ of ‘evil society’ that connected the UK, election monitors that were assumed to be pro-Raila, and leading human rights activists.
The aim of the ‘evil society’ campaign was to discredit groups that were seen to pose the biggest threat to Mr Uhuru Kenyatta’s victory. According to James Kimalel, ‘Africog’s lawsuits may be filed by Kenyans, but they are little more than Trojan horses for the Open Society Institute, local UNDP staff, and the British, Dutch, Finnish and German governments’.
It is understandable that the government is concerned about sovereignty — all governments are. But it is also important to understand the genesis of the Miscellaneous Amendment Bill, in order to see it for what it really is: an attempt to punish organisations that dared question Mr Kenyatta’s rise to the presidency, and to intimidate others who might cause problems in future.
Kenya’s civil society deserves better. Human rights groups and the National Youth Council have played a critical role in the struggle for freedom. Had the Miscellaneous Amendment Bill been on the books for the last 10 years, Kenya would not have a new constitution. If further gains are to be made, democratically, politically and economically, maintaining a strong civil society is crucial.
The economic and social impact of the Bill must also be considered. The NGO sector employs numerous people and provides many services to Kenyans who desperately need them. Unless the government intends to replace foreign funding with new sources of domestic funding, ordinary Kenyans will suffer. (READ: Lawmakers now train their guns on NGOs)
The question many commentators are now asking is: Will the President sign the legislation into law? So far, the Executive has sought to distance itself from the Bills, and Kenyatta may veto the legislation to protect his reputation. But if Uhuru does come to its defence, it would be a mistake to think the legislation had nothing to do with the Executive. So far, few people have asked the most important question about the legislation — where did it come from? In a political system like Kenya’s, where the vast majority of legislation is either directly or indirectly sponsored by the Executive, it is highly unlikely that these Bills have been dreamt up by rogue MPs operating outside of the control of party leaders.
Instead, it seems more plausible that the legislation represents an attempt by Jubilee to have its cake and eat it. By proposing the legislation, pro-Kenyatta MPs are able to threaten civil society and the media by showing them what could happen if they push things too far. By rejecting it, President Kenyatta is able to appear as the defender of democracy and good governance.
Everyone wins except, of course, Kenyans, and Kenyan democracy.
This column originally appeared in the Daily Nation on 8th November 2013.