(ARTICLE 19/IFEX) - 17 February 2012 - In January 2012, ARTICLE 19 analysed the Kenyan Publication of Electoral Opinions Bill, 2011 (the Bill) from the perspective of international and comparative standards on freedom of expression and freedom of information. The analysis draws upon standards of international law, as well as best practices of other states regarding these rights.
Regulation of opinion polls and election projection is very important from a freedom of expression perspective to the democratic processes. Opinion polls can exercise particular influence on the outcome of elections and can also be quite distorting. This is particularly true of polls and projections commissioned or conducted by a biased source. Polls and projections may have an effect on the vote itself, rather than simply reflect public sentiment. For these reasons, broadcast coverage of opinion polls and projections warrants special attention to ensure balance, fairness and objectivity so that the public are able to accurately assess and understand the poll's significance. At the same time, existing laws do not address this issue in a uniform fashion but provisions range from bans on the publication of election poll results from a certain date onward to general prohibitions on opinion polls or the use of certain questions in polls.
ARTICLE 19's conclusion is that the Bill contains comprehensive requirements for information required for electoral opinion polls. This is a positive feature of the Bill as it ensures the validity of the polls and also serves to counter situations in which electorates may place undue reliance on the results of the polls.
At the same time, ARTICLE 19's analysis highlights several negative features of the Bill, in particular the time period for the ban on electoral opinion poll publication and the severe sanctions for violation of the Bill.
- The Bill should highlight that its underlying aim is to ensure that freedom of expression, in particular the freedom of media, is respected during the election periods. It should also underscore the importance of media, their editorial independence during election periods and their contribution to free and democratic elections;
- The Bill should specify the date when it enters into force;
- The Bill should clarify whether the electoral period is meant to cover the campaign period during which voters are exposed to competing campaign messages. The length of the electoral period under the Bill should be shortened accordingly;
- An amendment should be made to Section 6 that the fee for persons requesting a copy of a report should not exceed a certain amount;
- Section 7 of the Bill should be revised to make the period of prohibition of results of electoral opinions 24 hours;
- Section 8 of the Bill should be revised to substantially lower the proposed penalties to ensure their proportionality to the offences. The Bill should also state that any imposition of sanctions by courts should be in strict conformity with the principle of proportionality.
Click below to download the full analysis:
ARTICLE_19_Kenya_bill_analysis.pdf (338 KB)