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Government enacts draconian law to regulate media content, gives authorities broad powers of surveillance

(Media Institute/IFEX) - The media in Kenya was stunned as Kenya's Parliament defiantly enacted a draconian law on 10 December 2008 that will empower the Minister for Internal Security to take over media houses and confiscate equipment on grounds of state security. The president has two weeks within which he can decline to sign the law and can send it back to parliament with his reasons. If he does nothing then the law is automatically passed.

The Kenya Communication Amendments (2008) Bill was passed despite months of behind-the-scenes consultations between government officials, politicians and industry stakeholders who wanted contentious sections removed.

The Bill was initiated by the government to cure deficiencies in the Communications Act of 1998, which set up a Communications Commission to regulate the telecommunications and broadcasting sector.

Since July, when the Bill was published, there have been concerted negotiations between the media and the government. Recently, however, there were by loud protests from the Media Owners Association, the Editors' Guild and the Media Institute, which sensed a vicious determination by the government and a cross section of MPs to push the Bill through Parliament. Analysts believe that the MPs passed the Bill in retaliation against the media's spirited campaign to have the hefty allowances of the MPs taxed, a move that has been strongly resisted by the legislators who shot down a proposal by the Minister for Finance to that effect. Kenya's MPs are the highest paid in the world, and their emoluments are not taxed.

The Bill also grants the Information and Communications Minister powers to issue general guidelines to the Communications Commission of Kenya that will be set up under the new law. The minister, without consulting with anyone or due representation, is singularly allowed to appoint the commission that is charged with the licencing of broadcasters and other ICT services, and determine, through an as-yet-to-be-determined coding system, the content, manner and schedule of broadcasting programmes.

The minister also has power to determine who can broadcast or not, effectively whittling away the independence of the Commission.

The Bill also enhances penalties, in most cases doubling them, for petty offences under the new law, such as invasion of privacy, a move that could have a chilling effect on the operations of the media and could result in a deluge of suits by litigants or fines by the Communications Commission.

Several provisions of the Bill also allow the minister or the Commission to shut down a station for failure to pay fines within a very short period of time.

The Bill does not directly recognize the Media Council of Kenya and, in most cases, duplicates some of the functions of the statutory Council set up to arbitrate disputes and oversee the media in Kenya.

A yawning omission in the new law is the scant reference to the Kenya Broadcasting Corporation, which is designated as the public broadcaster without any specific duties or functions assigned. The state broadcaster has perennially been used by the government of the day for political purposes. Its board is appointed exclusively by the minister without consultation with anyone else.

In their contributions in support of the Bill during the debate on 10 December, MPs insisted without any clear justification that the controversial clauses be retained because the media must be controlled "like anywhere else in the world". Information and Communications Minister Samuel Poghisio argued that the law is necessary to control rogue broadcasters.

The ministry's chief bureaucrat, Dr Bitange Ndemo, has castigated FM radio stations for "airing pornography and using dirty language" and lamented the role vernacular stations played in the post election conflict that took place early in 2008.

But the media has expressed serious concerns that the Bill could be abused politically. "This Bill is unacceptable in a country that professes to be a democracy as it literally takes away the fundamental freedom of expression and violates sections of the Constitution that guarantee the same," said David Makali, Director of the Media Institute.

Stakeholders are considering several measures in response to the passage of the law, beginning with a boycott of all political functions starting with the Jamhuri (Independence) Day celebrations on 12 December, which are presided over by the president.

Updates alert on proposed media law:

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