Kenya

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Flag of Kenya

By Kiley Jones

Introduction

Kenya is ranked 95 out of 180 according to the 2016 World Press Freedom Index. This ranking has declined 26 spots since the revised constitution was ratified in 2010. Today, Kenya claims to be a free territory. It is considered to be free in regard to internet freedom, and partly free in regard to press (Kenya – Freedom in the World, 2016). The decline of the World Press Freedom Index number has resulted in more limitations to freedom of expression and press in Kenya (Kenya, 2016).

 

Historical Background

The service industry is what drives the Kenyan economy; tourism is the core of the service industry. Animals and the environment are vital to the economy. Lake Victoria is the largest tropical fresh-water lake in the world, and Kenya is famous for being the home of various animals including elephants, lions, rhinoceros and over 1,000 species of birds (Kenya, 1996). Additionally, the Kenyan agriculture economy makes up 25 percent of the nation’s GDP. (Africa: Kenya, 2017). With a population of nearly 47 million people, about 80 percent of the population works full- and part-time in the agricultural industry (Africa: Kenya, 2017). Kenya is on the East African coast surrounded by Tanzania, Uganda, Somalia and Ethiopia.

With a government still in its infancy, the Kenyan legal system borrows from English common law, Islamic law, and customary law. Powers are separated in a fashion similar to the United States with judicial, legislative and executive branches. Eighty-three percent of the population practices some form of Christianity, followed by 11 percent of Kenyans practicing Islam (Africa: Kenya, 2017). As you can see, the Kenyan society is influenced by their surroundings, former governments and customary social traditions (Africa: Kenya, 2017).

Kenya has had three constitutions since becoming independent. In 2010, Kenya adopted its most recent constitution which set guidelines to improve and clarify various issues within the Kenyan culture, including freedom of expression and media (Kenya – Freedom in the World, 2016).

Freedom of expression throughout Kenyan history has been repressed by-in-large, with certain topics being banned outright. According to Media and the Common Good: Perspectives on Media, Democracy and Responsibility, government control over the media reached its peak in the 1980s. This culminated with the passing of an act similar to the Alien and Sedition acts passed in the United States in the early 1900s. The law gave the media no legal protection when criticizing government functions. After a change in government, the act was repealed and the media became independent as it had once before in the 1980s (Mwita, 71).

 

Free Speech

A 2013 law was proposed that would limit financial support of Kenyan anti-corruption civil society organizations. By limiting the financial support to 15 percent of their budget, citizens would be deprived of their fundamental right for their voices to be heard (Kenya Seeks to Silence Critics of Government, 2013). This legislation set precedence to limit protests and freedom of assembly (Kenya Impedes Critics by Restricting Free Assembly, 2013), as well as social media posts.

In 2015, Freedom House found that Kenyan citizens support human rights groups (Kenya: Public Support for Human Rights Groups, 2015). The vast majority of respondents believe that human rights groups have a positive impact on society by encouraging freedom of speech and defending their interests, potentially helping to reduce the corruption within the country (Kenya: Public Support for Human Rights Groups, 2015). Although the legislation has not been overturned, this may change to match more closely with public opinion.

Free speech can be seen as just speaking one’s mind, but it is also the freedom to seek, receive and impart information and ideas from whatever medium a person chooses (International Covenant on Civil and Political Rights, Art. 19). A fundamental freedom in the Kenyan bill of rights, freedom of speech should not be limited except for under a two-part circumstance: by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom (Kenya Const. art. XXIV, sec. 1).

Remaining true to the constitution, the high profile Karua v. Radio Africa Ltd. found that defamation and slander infringes on human dignity, equality and freedom. Here, Martha Karua, a politician,  sued Radio Africa Ltd., a radio station located in Kenya, for broadcasting a segment about her that was false, malicious, disparaging professionally, politically and socially and an invasion of privacy. Upon considering the facts of the case, judges set a precedent declaring slander unconstitutional. Although the court respects the fundamental freedom of expression rights (Civil Suit 288 of 2004, 2004), the International Covenant states that freedom of speech must respect the reputations of others (Art. 19).

Karua v. Radio Africa Ltd. set up precedence for defamation. The people of Kenya are able to differentiate what is constitutional and unconstitutional when broadcasting about one’s reputation and lies about their personal life. (Civil Suit 288 of 2004, 2004).

 

Free Press

In regards to freedom of press, Kenyan follows the International Covenant stating that restrictions are placed “for respect of the rights or reputations of others,” and “for the protection of national security or of public order, or of public health or morals” (International Covenant, Art. 19).

In Eric Cheruiyot Kotut v. S.E.O. Bosire, Bosire Commission wrote poorly about Kotut, a former Central Bank governor who oversaw finances, saying he was knowingly abusing his role as a banker. Kotut sued the Bosire Commission, and the Kenyan High Court heard the case on the terms that there was error in the report. The court found that Kotut was acting under the legal scope of his role, and ruled to “quash the offending paragraphs in the Commissions Report.” (Misc Civ. Appli. 416 of 2006, 2008).

This ruling makes libel lawsuits relatively easy to win, which in time may increase the amount of libel suits filed in court (Mbote, 66). On one hand, this allows for journalists to be more accurate, but it also allows for fear of publishing; fear of getting sued and out of a job due to a misstated fact. (Mbote, 67).

Kenyan reporters are brave characters facing pressure and censorship from authoritative figures, due to Kotut v. Bosire (Kenya – Freedom in the World, 2016). Reporters have little way of making money due to the lack of support from the government; therefore, they take small compensations from the subjects of their articles potentially causing the articles to be misguided and bias (Kenya – Freedom in the World, 2016). “’Freedom of speech’ is the right of being able to speak freely without censorship. In other words, it means the right to express opinions and ideas without hindrance, and especially without fear of punishment,” (Jesse, 1).

Although it seems as though Kenya’s freedom of press is limited, a progressive decision set precedence in regard to prior restraint. In Royal Media Services Ltd. v. Attorney General, a radio station got sued for broadcasting without renewing their certificate. The court decided that the Communications Commissions of Kenya (CCK) had the right to regulate authority over radio and electronic media. The issue at hand was that the CCK was able to implement restraint by the Kenya Information and Communications Act. The act facilitates the development of the information and communications sector, including broadcasting multimedia telecommunications and postal services, and electronic commerce; and to license and regulate postal information and communication services in accordance with the provisions of the act (RMS v. Attorney General, 2013). The court goes on to discuss how they do not see how regulation by the CCK is a violation of the constitution. However, the court found that the Kenya Information and Communications Act is unconstitutional (RMS v. Attorney General, 2013).

The issue brought up by RMS v. Attorney General is that radio broadcasters – or any medium for that matter – shall not be restricted due to a lack of certificate. RMS argued that the Kenya Information and Communications Act infringed on their fundamental freedom of speech. If the broadcasters did not have their renewed certificate, then they would be shut down and unable to broadcast. This case was to define whether practice of prior restraint will be legal, or unconstitutional – the decision was stated. The Kenyan High Court ruled that the CCK has no right to restrain broadcasters – regulate, but not restrain. If they have the ability, the funds and the resources to broadcast – as well as remain within the legal scope of broadcasting – they shall be able to broadcast. Information needs to get out to the people, and in Kenya, freedom of press prevailed.

In 2013, the Kenya Information Communications Act allowed for the government to control posts on the internet – via social media or blogs – for “misuse.” The act said using telecommunications “that is grossly offensive or of an indecent, obscene or menacing character” will be charged (Kenya: High Court Overturns Restrictions on Social Media, Telecommunications, 2015). This allowed for the Kenyan government to practice strict control over posts, which could set precedence to controlling opinions of others. Later, the act was overturned by the Kenyan High Court once journalists showcased the expansion of power (Kenya: High Court Overturns Restrictions on Social Media, Telecommunications, 2015).

With the Kenya Information Communications Act in effect, many feared that freedoms of speech, expression, press and democracy as a whole would be threatened. Journalists tested the standards of the law in court stating that the precedence of the act will effect all forms of media, as well as democracy itself, by showcasing the expansion of power among the judicial and executive branch (Kenyan Journalists Win Court Victory against New Restrictions, 2014). The case was decided in 2014, with the act being overturned. This victory strengthened Kenya’s internet freedom to the free status it upholds today.

 

Critical Comparison

In Kenya, just as in the United States, free speech is viewed as a fundamental human right (Akrivopoulou, 89).

With regards to libel and slander, Kenya and the United States view freedom of expression differently. Kenya follows the rules set by the International Covenant stating freedom of expression is allowed unless harmful to another. In the United States, it is nearly impossible for a public official to win a libel or slander case. Precedence for libel was set in New York Times v. Sullivan. Here, Sullivan, a Montgomery, Alabama city police commissioner, sued The New York Times for posting a full page advertisement stating falsities claiming the Alabama State Police was racist and trying everything possible to avoid integration (376 U.S. 254, 1964). Since Sullivan was the commissioner, he mapped out how the advertisement would lead to his name, and since it regarded falsity, the New York Times was committing libel. He was able to win in the district court, as well as the Alabama Supreme Court. The United States Supreme Court, however, decided that one cannot win for libel unless one can show harm and that it was published with actual malice (376 U.S. 254, 1964).

In Kenya, freedom of assembly is restricted for critics of the government. In the United States, freedom of assembly is protected almost always no matter who the party. Precedence is set with Brandenburg v. Ohio in 1969, where Clarence Brandenburg, a leader of the Ku Klux Klan, was convicted under the Ohio Criminal Syndicalism statute. The statute states that advocating crime sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform will lead to disciplinary action (395 U.S. 444, 1969). After Brandenburg brought a news reporter into a Klan meeting talking about violence, he was charged under the Ohio Criminal Syndicalism statue. This case went to the United States Supreme Court, where they found in favor of Brandenburg, saying that freedom of assembly is protected because there is no direct violent action resulting from this meeting. This set the tone for the United States regarding freedom of assembly – if the assembly does not cause direct harm, then it is protected under the First Amendment (395 U.S. 444, 1969).

In 2013, Kenyans were punished for “misuse” of expression via social media. Although it was eventually overturned, the United States faced a similar issue regarding “misuse” of expression. In Texas v. Johnson, Gregory Johnson burned the United States flag as a form of symbolic speech while protesting (491 U.S. 397, 1989). This act was to criticize current government actions and was found offensive to many. The United States Supreme Court ruled that Johnson was practicing symbolic speech which is protected by the First Amendment. Although the majority ruled that it is symbolic speech, many judges pointed out that burning the United States flag to make a statement is a misuse of the symbol (491 U.S. 397, 1989). Misuse or not, the United States protects expression more so than Kenya.

Although it seems as though Kenya and the United States view freedom of speech and press differently, they do agree on one thing – prior restraint. According to RMS v. Attorney General, Kenya does not allow for prior restraint, similar to the precedence set in the United States. Beginning with Near v. Minnesota in 1931, the United States Supreme Court set up precedence of prior restraint, but allowing for the freedom of the press to prevail (except for when in war, or if the Nation’s security is in danger) (283 U.S. 697, 1931). In Near v. Minnesota, Jay Near, the sole owner and proprietor of The Saturday Press, published an article accusing the county officer and a few others of being involved with gangsters. Although entirely false, the county attorney sued, and was wanting Near to never publish again as a remedy. The case made it to the United States Supreme Court where they ruled in favor of Near stating prior restraint is not protected under the First Amendment, except in exceptional circumstances (283 U.S. 697, 1931).

 

Conclusion

As one can see, Kenya and the United States face similar issues. While United States citizens fight their government for freedom of speech and press, Kenya finds comfort in government regulation within freedom of speech and press. From silencing criticizes regarding the government to an attempt at suppressing social media and blog posts, one can see how Kenya and the United States differ, and why Kenya is ranked 95 out of 180 on the 2016 World Press Freedom Index.

 

 

References

 Africa: Kenya. Central Intelligence Agency. 2017. https://www.cia.gov/library/publications/resources/the-world-factbook/geos/ke.html.

Akrivopoulou, Christina. Defending Human Rights and Democracy in the Era of Globalization. IGI Global, 2017, pp. 89.

Brandenburg v. Ohio. United States Supreme Court. 395 U.S. 444. 1969.

Civil Suit 288 of 2004: Martha Karua v. Radio Africa Ltd. t/a Kiss FM Station & 2 Others. Kenya Law. 16 June 2004. http://kenyalaw.org/caselaw/cases/view/23016/.

The Constitution of Kenya. Art. XXIV Sec. 1

The Constitution of Kenya. Preamble.

Ehret, C. An African Classical Age: Eastern and Southern Africa in World History, 1000 B.C. to A.D. 400., University Press of Virginia, 1998, pp. 354.

Hadingham, Evan. Ancient Chinese Exploerers. Nova. 16 January 2001. http://www.pbs.org/wgbh/nova/ancient/ancient-chinese-explorers.html.

International Covenant on Civil and Political Rights. United Nations Human Rights. 16 December 1966. http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx.

Isaac, G.L., Isaac, Barbra. Olorgesailie: Archeological Studies of a Middle Pleistocene Lake Basin in Kenya. University of Chicago Press, 1977, pp. 103.

Jesse, James E.M.C. The Freedom of Speech for Members of Parliament in Tanzania: An Appraisal of Law and Practice in Light of International Human Rights Law and Best Practices. LawAfrica Publishing Ltd., 2009, pp. 1.

Kenya – Freedom in the World. Freedom House. 2016.  https://freedomhouse.org/report/freedom-world/2016/kenya.

Kenya: High Court Overturns Restrictions on Social Media, Telecommunications. Freedom House. 2015. https://freedomhouse.org/article/kenya-high-court-overturns-restrictions-social-media-telecommunications.

Kenya Impedes Critics by Restricting Free Assembly. Freedom House. 14 November, 2013. https://freedomhouse.org/article/kenya-impedes-critics-restricting-free-assembly.

Kenyan Journalists Win Court Victory against New Restrictions. Freedom House. 2014. https://freedomhouse.org/article/kenyan-journalists-win-court-victory-against-new-restrictions.

Kenya. OoCities. 1996. http://www.oocities.org/teacherkab/countries/kenya.htm.

Kenya: Public Support for Human Rights Groups. Freedom House. 2015. https://freedomhouse.org/article/kenya-public-support-human-rights-groups.

Kenya. Reporters Without Borders. 2016. https://rsf.org/en/kenya.

Kenya Seeks to Silence Critics of the Government. Freedom House. 5 November 2013. https://freedomhouse.org/article/kenya-seeks-silence-critics-government.

Mbote, PK. Akech, M. Kenya: Justice Sector and the Rule of Law. Open Society Foundations,  March 2011, pp. 66-67.

Misc Civ. Appli. 416 of 2006: Eric Cheruiyot Kotut v. S.E.O. Bosire & 2 Others. Kenya Law. 21 November 2008. http://kenyalaw.org/caselaw/cases/view/52572.

Mwita, Chaacha. Media and the Common Good: Perspectives on Media, Democracy and Responsibility. LawAfrica Publishing Ltd., December 2010, pp. 71.

Near v. Minnesota. United States Supreme Court. 283 U.S. 697. 1931.

New York Times v. Sullivan. United States Supreme Court. 376 U.S. 254. 1964.

Royal Media Services Ltd. v. Attorney General & 2 Others [2013] eKLR. Kenya Law. The Official Law Reports of the Republic of Kenya, 18 January 2013. http://www.kenyalaw.org/Downloads_FreeCases/91338.pdf.

Texas v. Johnson. United States Supreme Court. 491 U.S. 397. 1989

We Want Our Country. Time. 5 November 1965. http://content.time.com/time/magazine/article/0,9171,901759-3,00.html.

 

 

 

This essay was last updated April 30, 2017.

 

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