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Katiba Institute Article

JILL COTTRELL : You don’t have as much freedom of expression as you may think

JILL COTTRELL : You don’t have as much freedom of expression as you may think

Many Kenyans will be familiar with some of the challenges facing freedom of expression, including the bloggers prosecuted, and the efforts to limit press reporting.

But reading Kenyan law constantly comes up with new ones.

The Referendum Bill says that anyone who intends to campaign for or against the issue to be decided during a plebiscite must form one national referendum committee and one in every constituency. It’s not very clear.

What is “campaigning”? Does it mean that no one may campaign for or against a Yes vote on a referendum question without forming (surely not) or belonging to or supporting, a campaign committee?

If so, it is a grave limit on freedom of speech. How long will it take to get a committee approved?

Can approval be used as a way to defeat a certain viewpoint? Anyway, why should we not be able to campaign freely for or against a certain position? Indeed we are already doing it.

But this notion – that if you want to do something you should have to get the approval of some bureaucrat – seems to have taken hold of Kenyan administration.

Those who draft law like nothing better than to set up a body (lots of nice jobs and opportunities for patronage in appointing to them) and requiring approvals for doing what comes naturally to human beings (nice bribe chances, too).

Many of these activities involve people expressing themselves. And many of these restrictions —and “Ask first” — can be traced back to the colonial period.

SOCIETIES ACT

A pedant might say the Societies Act is about freedom of association, but a major reason to associate together is to express ideas, beliefs, ambitions.

Our Act says than any society or association of 10 or more people, that has neither registered nor been exempted from registration, is unlawful.

Where did it come from – and why? From England of course. But in England you do not have to register societies or find they are illegal. The Societies Ordinance (the word for colonial laws) was an export model only.

Kiraitu Murungi once told the National Assembly: “There was no Societies Act in Kenya until the year 1952… — the year the state of emergency was declared.

The whole idea of the Societies Act was to deprive African nationalists of any organisational or political voice against the colonial government.

When the Kenya African Political Union came to power in 1963, people were very bitter about the Societies Act.

So, it was repealed altogether in 1963. But when the Kenya People’s Union was formed in 1966, the colonial Societies Act was resurrected and re-enacted in 1968.

Soon after it was re-enacted, the KPU was declared an unlawful society”.

Now, political parties have to be registered under a different Act – and fortunately they do not get declared unlawful.

But other political bodies do – such as the Mombasa Republican Council –under the Prevention of Organised Crimes Act rather than the Societies Act.

Have you ever asked yourself why societies generally must be registered?

FILMS

The Films and Stage Plays Act dates back to 1912. Much of it was concerned with the making of films — in those days only by foreigners — and was focused on issues such as security and treatment of people and animals.

But of course it could be used to ensure that only a flattering portrait of the country and of its government got filmed.

It is also crippling of creativity: Detailed information must be supplied about the content, and script, and any departure from the script must be notified to the Board.

The death of the spontaneity and improvisation, which some directors have aimed for. Article 33 of the Constitution says that freedom of expression includes freedom of artistic creativity.

What causes the most concern these days is the part on exhibiting films.

Most recently, we focused on Rafiki — a charming film about a lesbian relationship without any crudity about it — banned by the Kenya Film Classification Board, allowed to be shown on the basis of an order by one judge who thought adult Kenyans could make their own decisions, but finally banned again by a Judge who did not.

Some improvement may be coming. A miscellaneous amendment Bill is before the National Assembly. This government Bill seems, regrettably, to envisage restoring licensing of stage plays as well as films (removed in a fit of enlightenment in 1997), and adding commercials to the responsibilities of the Board.

However, it also promises that films will only be entirely banned because they include propaganda for war, incitement to violence, hate speech or advocacy of hatred based on characteristics like ethnicity, religion and other grounds that the Constitution prohibits.

Otherwise. films may be classified only to protect children. But watch our MPs as they consider this.

FREEDOM OF RESEARCH 

Freedom of expression also includes “academic freedom and freedom of scientific research”.

Yet everyone Who wants to carry out research in Kenya is supposed to get a permit (unless they are within an academic institution in Kenya). This is not just applicable to foreigners wanting research visas, but even to Kenyans.

What “research” means, or “science” is unclear in the law, and “technology” means “the application of knowledge to meet the goals, goods and services for sustainable development” — can you be refused a permit if the National Commission for Science, Technology and Innovation thinks your project doesn’t fit the bill?

It can be refused if the project would “adversely affect the lives of Kenyans”. And anyone who objects to refusal can appeal to … the Cabinet Secretary.

And research institutions as such, which are supposed to be registered, are expected to carry out relevant research, which means, “they address national priorities and aspirations”.

The application form for a permit says that the researcher must give copies of interview schedules, and other details about research that involves talking to people.

In other words, research is constrained by a body that is rather closely tied to government, and with a mandate to further government’s agenda.

Yet the Act, passed in 2013, shows no awareness that it limits a constitutional freedom of scientific research – and it lacks the statement that the Constitution requires for any such Act passed after 2010 “specifically expressing the intention” to limit a right.

SETTING UP A MUSEUM 

The Museums and Heritage Act says that “No person shall operate a museum except in accordance with a licence granted by the Minister”.

A museum, you might be pleased to realise if you have an interesting collection of art, for example, is that it “collects, preserves, analyses and exhibits objects of cultural and natural heritage”. But why require a licence?

If you exhibit pornographic material that would be a crime; if you steal stuff to exhibit that it is crime.

Sanitary regulations might apply, catering law will apply if you have a café attached. Why do you need a licence to have a museum at all – from the government?

The regulations impose impossible conditions on community museums, or probably on many people who are enthusiasts wanting to share their collections – including having a professional curator.

A museum is a form of expression – in what it displays, and how, and in the explanations it presents.

This Act is from 2006, so it does not have to have that statement admitting it limits rights. But the Article 24 principles in the Constitution still apply.

“Why?” is the question that Article 24 asks about limits on rights – anyone trying to justify law limiting rights must be able to show that this serves a valid purpose.

What’s more, the limit on rights must be no more than strictly necessary to achieve that purpose.

Late in the 1800s, the satirical magazine, Punch, carried a cartoon: A mother tells her older daughter “Go and see what baby is doing and tell him to stop it”.

Kenyan governments seem to take the view: “See what the people want to say, and tell them they must ask for our permission first”.

This Article was first published by the Star Newspaper on 27 June 2020

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