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ARTICLE 19 analyses freedom of expression regime of Harmonised Draft Constitution

(ARTICLE 19/IFEX) - 18 December 2009 - ARTICLE 19 has analysed the right to freedom of expression provisions in the Harmonised Draft Constitution prepared by the Committee of Experts on Constitutional Review.

ARTICLE 19 welcomes the ongoing efforts in Kenya to introduce a strong constitutional framework for freedom of expression and notes a number of positive aspects of the Draft Constitution. At the same time, the legal analysis outlines several shortcomings that leave the Draft Constitution falling short of international commitments.

The Draft Constitution was published in November this year as a result of an ongoing constitutional reform in the country in which ARTICLE 19 participated. The Draft Constitution is expected to be adopted on or before 2 March 2010. Once adopted, it will then be subject to a constitutional referendum.

ARTICLE 19 welcomes the fact that the Draft Constitution introduces a number of positive changes in relation to the regime of rights and freedoms which are new to the constitutional order of Kenya. The positive changes in the Draft Constitution include in particular explicit recognition of a number of new constitutional rights and freedoms such as freedom of artistic creativity, freedom of artistic expression, freedom of scientific research (Article 50), freedom of speech and debate in the Parliament (Article 150), the right of access to information (Article 52), the right to environmental information (Article 67), an explicit proclamation that all media is independent (Article 51), authority of courts to enforce the draft Constitution's Bill of Rights, including the constitutional rights in relation to freedom of expression (Article 32), and others.

However, ARTICLE 19 notes with concern several provisions in the Draft Constitution that deal with restrictions to the right to freedom of expression and freedom of information. The concerning provisions relate to the licensing system and do not provide for the independence of licensing bodies, the allocation of airtime, the protection of journalists' sources, or the prohibition of censorship. The absence of such provisions permits broad and untargeted restrictions and violates international law.

ARTICLE 19 calls on the Kenyan Committee of Experts to consider our recommendations and to ensure that the final text of the Constitution is fully in line with international standards, particularly in relation to freedom of expression.

Click here for the full text of the ARTICLE 19 analysis

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