Kibaki: Happy New Year; Now Shut-Up!
Well, I guess we should talk about this “controversial” media bill. I haven’t read the entire bill because I don’t want to fall asleep. So, the information I am getting is coming from the Kenyan newspapers. According to the Nation, the law will do the following things:
So, let us break the governments main argument down. The government is arguing that media around the world (even in America) is regulated. Therefore, what they are doing is not draconian. They are simply trying to regulate what Kenyans hear, especially in light of the post election violence where {they argue} radio stations were used to spread messages of ethnic hatred.
The government is right about some aspects of the media being regulated in America, but those limits are carefully contained within the prescriptions found in the first Amendment (i.e. the clause in the U.S. constitution that governs freedom of speech). Now, they are entire books dedicated to this one issue of freedom of speech, but basically, the limitations on freedom of speech in America, hinge on the issue of the government’s role in maintaining public security and civil order.
So, for example, it is against the law in America, to go into a movie theater or other public venue and start shouting: Fire! Fire! Fire! when you know that there is no fire. Why? because it could endanger public safety. If the theater is packed with people and they start running out and trampling each other, they could get injured and this would create disorder and chaos.
Let me give you another example. The FCC, which is the body that regulates what is said on public airways, does not allow people to use curse words on public radio or public television. They also are restrictions on how much nudity you can show on public broadcasting stations. However, cable stations, which you have to pay for to get, have a lot more freedom in terms of what they can show. So, for example, a show like the Soprano’s, which appears on HBO (a paid cable station) will have nudity and cursing in it, but that’s because in order to get HBO, you have to pay a monthly fee. It’s not free like the other stations. i.e. it’s not a public entity. It’s a private entity, which can only be accessed by you exercising your free choice to expose yourself to those scenes of nudity or cursing.
The internet is also restricted. For example, many pornographic sites have to adhere to stricter laws on content. Also, things like child porn are illegal. Yes, these sites exist, but the FBI does monitor child porn sites and they do try to shut them down and/or arrest people who use them as conduits to abuse children {because sexually abusing children is against the PUBLIC good}.
So, regulation is necessary because the world is full of nutcases & you can’t just let them say or do what they want. However, if the government was genuine about this issue, they would have placed restrictions on the public airwaves like the one’s I have described above. For example, monitor “tribal” stations and put severe limitations on any messages that seek to spread ethnic hatred or violence (since this would not be good for civil order).
The problem with this law is that it appears like the government is just trying to shut down genuine public discourse about what it’s doing. Now, if you don’t want people to know what you are doing, then you should remain in the private sector where you can enjoy a private life.
However, once you VOLUNTARILY agree to become a PUBLIC servant, your expectations of privacy are naturally diminished because you have chosen to open yourself up to public scrutiny. Additionally, if YOU ARE BEING PAID WITH TAXPAYER MONEY or with public money, the financiers of your salary have every right to know what you are doing with THEIR money. I don’t understand why MP’s in Kenya don’t seem to get this point.
One last point, which I have not heard any of the media houses mention. Even if the government in America tries to impose limitations on the freedom of speech of it’s citizens, the one thing America has is an independent judiciary. After 9/11, Bush tried to hide lots of information about what the government was doing to fight terror. And what happened when he did that? Civil liberties groups took the government to court and some of the things he tried to do where overturned by the courts.
This, I believe, is the biggest hole in the governments argument — without an independent judiciary that has the power to check the excesses of government, this law will become draconian because EVERYTHING will now be determined ONLY by the government. The government has now become the judge and the jury of what you can or cannot hear.
I’ve said this here over and over again, especially as it pertains to this issue of freedom of speech and in the case of Kenya, defamation laws (since many politicians have tried to sue media houses for defamation).
The media houses could bolster their arguments by zoning in on this issue of public expectations of privacy vs. private expectations of privacy.
They need to zone in on the fact that ALL government employee’s are paid with public money and thus, the public has a right to know what they are doing with their money.
Even with defamation lawsuits, celebrities and other public officials have a much higher burden of proof because the courts make the conclusion that they have voluntarily placed themselves within the public sphere and thus, they should expect some level of public scrutiny.
Excellent arguments. I concur.
The Constitution of kenya overrides all Acts of Parliament. Ask Moi whether any media bill would affect the powers constitutionally vested in the Executive.
The constitution is colonial – designed to protect the rights and interests of a privileged few rather than the Majority.
We need to address the root cause. Change the constitution.
KE, you have raised good points on media laws in the US of A. One point you failed to discuss which I was expecting you to was, the issue of media cross-ownership. I would like to know why the government is intrested in what people can own, I mean why is it dangerous to run a newspaper, TV and radio stations at the same time?
Secondly, how exactly is the new law helping with creating jobs like M Pesa as Kibaki tried to imply? In other words, how was the law good for business? I failed to see the connection.
The other issue is; I read that RAO, WR, KM and other loud-mouths are against the bill, how did they vote? were they present? what did they say on the floor of the house? What was ODM and ODM-K’s position on the bill? Why did the bill pass so fast yet even the budget took the house forever?
Is it really a media bill or is it an ICT bill. I am confused. I thought it only touched on broadcast, IT , ecommerce and not print ???? I read it and i did not see anything about newspapers, magazines and the like. Infact the boradcast part was just a small part of it. There where other important issues like how to combat cyber cribe, things to do with ecommerce etc. I think the media has vested interests.
Eric:
My analysis is not just about American laws. I used american laws as an example because that is what the politicians in kenya are trying to argue — that they are simply doing what more advanced countries do, but I am saying that they are not doing what more advanced countries do and I have tried to highlight the significant differences.
Why is the government interested in what people can own?
Answer: because that is how you can control them. Zenawi has done the same thing with the land issue in Ethiopia. You cannot own land because that is how the government can control the population. If you start criticizing the government, they’ll take your land away from you.
Why is it dangerous to own a newspaper, tv and radio station? In other words, why can’t kenya have it’s own Rupert Murdoch? again, the government wants to control the dissemination of information. Actually, in Kenya, I think it is dangerous to become richer (in totality) than any politician.
The law has no connection to M-Pesa, at least as I see it. The laws governing the electronic transfer of money, either via the internet, banks or western Union should be governed by general banking & securities laws, which by the way do not exist as we have seen when it comes to wayward brokers like Francis Thuo and the Nyagah brokerage firm. When it comes to taking money from the public, the laws that govern this issue are securities laws not freedom of speech amendments!
All politicians are for this bill and Raila, like usual is trying to have his cake and eat it too. Like the taxes, this law is for their own benefit and no one else’s. The politicians voted for what was best for them, not what was best for you.
It’s becoming increasingly clear that raila has no control over his odm mp’s. Even his party leadership position has become an illusion.
Noni:
Do you honestly think that the geriatric “rulers” of kenya are concerned about an ICT bill and ecommerce??
The politicians are tired of being criticized and embarrassed in the news and they all decided that they were going to do something about it. The MP’s who did not show up to vote, knew exactly what they were doing by not showing up. If they felt so strongly about it, they would have shown up to vote against it. Raila cannot fool the public when his own party members voted for it. If he is the captain of ODM, as he so claims, why didn’t he implore them to show up in parliament and vote against it?
However, you raise an interesting point about the laws construction. I believe I talked about this in a previous post where I said that the key to writing a law which you want to abuse is to make sure that it’s language is as broad as possible so that it can interpreted anyway in which one wants. If you make the law detailed and concise, then it’s meaning becomes very clear and that will leave you with no room to maneuver.
So, do not be confused. The language is broad and unclear on purpose. The minister of information and the minister of internal security will now decide what is clear and not clear about this bill.
Ideally, an independent court system is used to clarify questions of law that remain unclear to the public, but since this independent judiciary does not exist in kenya today, the clarity will come from the government itself.
Like I said earlier, the government has now become the judge and jury of what you can and cannot hear.
Also, if the government believes that the media is not being fair in it’s reporting, then they can call a press conference and clarify their points directly with the public or they can call a kamkunji and deliver their message directly to the people or they can use the defamation laws to pursue cases, which they feel have incorrectly defamed them.
I have been wondering why the media insists so much on their own rights being taken away as if others don’t have rights too. Some weeks ago, Nation ran an article on the extent of the bill, most of which turned out to be falsified facts after I went through the actual bill myself. This was more of a move to get public sympathy. One thing that beats is why the media just sees itself on the losing end, but the general public is also on the losing side, but does the media really look into this? All the media cares about is “Section 88″. What about the other sections that focus on SMS and postal content? Why’s there not as much cry about these sections as there is on Section 88. I just the media is one selfish outfit crying for its own ends. What the journalists forget is that, at the end of the day, all the reporters and news anchors are “general public”. After they remove their badges when going home, they will still get whipped by these other sections. Why can’t they put as much fervour into these other sections as they do with the parts that hit them hard? Granted, the sections dealing with computer crime are long overdue, I have no qualms about that, but the media should stop whining and get responsible on their act.
@ KE
Candid points. However some of your arguments are based on fallacious logic. Example – you suggest that since politicians may have had some interest in the Communications Amendment bill, it shall have no economic benefit.
Like Eric said, its more of ICT law than media law. Ecommerce legislation is long overdue and provides a legal framework for electronic trading in Kenya. Not to mention that the savings of electronic publishing across all sectors will be immense. Egovernment will now become a reality and people will have faster access to information.
This new law has PROS and CONS. So far, the potential benefit to the majority of poor Kenyans are much higher!
Our Media is using fallacious arguments too… ad hominem (e.g. that since Kibaki assented the bill then Kibaki is a bad president); strawman (e.g. that since the new law does not repeal section 88 of the old law, then the new law in totality is bad)
etc.. etc…
Fortunately Kenyans are much more alert to propaganda nowadays.
@ Noni.. well said. Those are the tough questions that need to be asked. I too want to know where were these self righteous MPs when the bill sailed through parliament?
Also perhaps there should be a provisio in the Legislative process to recall bills back to the house if majority of MPs feel a mistake has been made. This neutralizes the effort of those who use such bills as “political traps” (e.g. now people demonize Kibaki as if he wrote the bill personally).
Kenyan Media should be doing some intelligent analyses and providing constructive suggestions – rather than the “take it to the streets” attitude they currently have…
Oops.. Type: Substitute “Eric” for “Noni” and vice versa.
Did the media contribute to the violence in Kenya?
I believe they gave unwarranted coverage to warmongers and inciters in the build up to the elections. Their sole interest was profit. They did not care about the consequences – and the country almost disintegrated as a result.
I do not feel sorry for them at all.
I say, CONTROL the media until they learn how to be patriotic to KENYA.
Well, done Kibaki for siginig the bill.
KE:
Biwott yuko kwa horizon!
Aren’t you the same person who says Africa needs dictators if it has to develop….Why are you now scared ?….Hiyo tu ni shadow
BN Mwalimu:
Yes, I have said that Africa needs dictators, but I would not classify Kibaki as a dictator. In fact, I can’t quite figure out what he is. He’s like a half dictator and a half democrat and it’s not working. He needs to reach a point of clarification about how he wants to rule the country. Do you want a complete democracy or not? if not, then do away with this illusion and stop giving people false hopes about the existence of democracy.
Biwott is not a good example of the kind of dictator I’m talking about and neither was Moi. They were terribly corrupt and they did not respect private business and free enterprise. That’s why the economy collapsed under their rule.
I like dictators like Museveni, Kagame and Lee Kwan Yew. These are the kinds of dictators Kenya needs, but we don’t have that.
KE, You forgot Mugabe..
Great that the president signed the bill. Wacha those media criers show us what they will do. On the other hand, the dishonesty of ODM continues to be staggering. Where were they when the bill was being passed in parliament? ama they were given money to stay away? They’re just preparing the ground for 2012 when they come into power and RAO unleashes his dictatorship (which won’t, KE, help development of the country). Those who can swim out now, do so. We’re in for a heck of a decade, come 2012. And those waiting for “Kenyans” to rise up and revolt, wait on. Kenyans love being seduced with pie in the sky promises and that ain’t gonna stop.
ODM/PNU/KANU/KADU whats the difference? same old men wearing different hats. What we need are young exposed leaders in Government.
Revolt? Jeez! for what? Where has it ever worked? Somalia? Please! There are more civilised approaches to change.
Less negativity, less apathy, More awareness, More Civic education. More debates. More positivity. Thats what Kenya needs.
kibz & cronies have another scam… kibz was invited to ‘commission’ the new additional capacity at KPC that never was…
Well… it seems KPC also told us that there were stocks of 56,000,000 liters of fuel that never was…
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