Katiba Institute, thanks to the support from UNESCO, partnered with the Media Council of Kenya to host this year’s International Day to End Impunity for Crimes against Journalists in Kisumu County on 2 November 2023. The International Day to End Impunity for Crimes against Journalists is an international day observed annually on 2 November to pay attention to the level of impunity for crimes against journalists, which remains highly high globally. Representatives from the media, civil society, academia, government and members of the public attended the meeting.
The Principal Secretary of the State Department for Broadcasting and Telecommunications, Ministry of Information, Communications and the Digital Economy, Prof Edward Kisiang’ani, noted that it was the government’s interest to ensure that the media sector thrives. He underscored the importance of adhering to the provisions of the Kenyan Constitution on press freedom.
“The Kenyan Constitution stands as a testament to the protection of all Kenyans and the freedom of expression, which extends to the freedom of the press. These principles are fundamental and non-negotiable, and our collective duty is to ensure that they are upheld and defended”.
Media Council of Kenya CEO Mr David Omwoyo spoke on the violations of journalists’ rights, terming them as a significant drawback to press freedom in Kenya and globally. He called on collective responsibility to ensure that crimes against journalists do not go unpunished.
“Protecting journalists is about knowing that people’s actions or inactions are making media worker’s work difficult. We ask those in government, civil society and the justice system to ensure that crimes against journalists are punished”, he said.
Katiba Institute’s Deputy Executive Director, Christine Njeru Kuria, noted that protecting journalists is essential for realising the fundamental rights of freedom under the Constitution, thus the importance of commemorating the day-to-end impunity against journalists. She said that Katiba Institute’s vision of social transformation through promoting a culture of constitutionalism in Kenya aligns with the focus of today’s commemoration of eliminating impunity for crimes against journalists.
Christine further noted that the safety of journalists and the struggle against the impunity of their tormentors are essential to preserving the fundamental right of freedom of expression, which is an individual right but is also a collective right that empowers the population through facilitating dialogue participation and democracy, making autonomous and sustainable development possible.
KI’s Programs Manager, Patriciah Joseph, participated in a panel discussion on ‘Safeguarding Journalists and Preserving Press Freedom in the Face of Public-Prompted Violence.’ Panellists addressed the various issues touching on crimes against journalists with highlights of journalists’ experiences of attacks in the line of duty by police officers, politicians and the public and lack of support and the implications of Kenya’s legal framework on the operational environment for journalists.
Patriciah further highlighted KI’s work, particularly public interest litigation (PIL), to challenge the government’s failures concerning constitutional obligations as well as use of access to information as a tool for empowering citizens to seek accountability from government and facilitate our work in PIL including in seeking enforcement of court orders.
Our work with media and press freedom
In our capacity-building work, KI, in partnership with the Media Council of Kenya and the Kenya Correspondents Association, has equipped journalists on the use of access to information as a tool to enhance their operations, particularly in investigative journalism.
Research is a critical strategy that continues to inform KI’s work, and to this extent, KI has
been involved in auditing laws governing the media sector in Kenya and advocating for necessary reforms.
Despite the High Court’s finding that criminal defamation was unconstitutional and that criminal defamation sanctions have a chilling effect on freedom of expression and are disproportionate to the interest it seeks to protect, laws such as the Defamation Act of 1960, which continues to have a place in our statute books. It, however, requires to be reviewed to confirm with constitutional dictates.
In Communications Commission of Kenya v Royal Media Services & 7 others , the
Supreme Court sought to resolve the overlapping mandates between the Media Council
of Kenya and the Communications Authority of Kenya (previously Communication Commission of Kenya). It found that “the body contemplated by Article 34 (5) of the Constitution is the Media Council of Kenya and not the successor to the CCK.” Towards this end, one of KI’s recommendations is the amendment of the Kenya Information and
Communication Act, to comply with the Supreme Court decision.
The courts have also declared section 6(2)c of the Media Council Act 2013 unconstitutional, which requires the safeguarding of the protection of national security, public order, public health, and public morals. In Nation Media Group & 6 others v. Attorney-General & 9 others eKLR, the high court held that the section is couched in vague and broad terms not specific enough to meet the legality test.
KI reviewed these and other laws and made recommendations for legislative review. Further, KI has developed a guidebook that will serve as a reference guide to the main issues in contemporary journalism, with case studies and references to legal and regulatory sources.
Katiba Institute has also curved a niche around public interest litigation on the Constitution. In the recent case of Republic vs. Ezra Chiloba, Director General
Communications Authority of Kenya, in which KI was the 1st ex-parte applicant, the case
challenged the censure of TV stations for broadcasting protests. The court, quoting the
General Comment No. 34 of the UN Human Rights Committee on Article 19 of the ICCPR
reinstated the close inter-linkage between the right to freedom of expression and the
enjoyment of other rights. The General Comment states in paragraphs 2 and 3: 2. Freedom of opinion and freedom of expression are indispensable conditions for the
full development of the person. They are essential for any society and constitute the foundation for every free and democratic society. The two freedoms are closely related to freedom of expression, providing the vehicle for the exchange and
development of opinions.”
3. Freedom of expression is a necessary condition for the realisation of the principles of
transparency and accountability that are in turn, essential for the promotion and protection
of human rights.”
The court further echoed the right of every person to freedom of expression in Article 33
of the Constitution and reinstate the prohibition against the State from exercising control over or interfering with any person engaged in the broadcasting, production or circulation of any publication or dissemination of information by any medium under Article 34. The court also found that the censure was illegal as it did not adhere to any of the four legitimate speech limitations under Article 33(2): propaganda for war, incitement to violence, hate speech or advocacy or hatred.
The safety of journalists is a gateway to the enjoyment of other rights and freedoms. The court found that the censure actions of the then Director General of the Communications Authority of Kenya were a ‘procedural impropriety’ contrary to Article 47 and the Fair Administrative Action Act, 2015. Fair administrative action demands that where an action is likely to affect the rights or fundamental freedoms of any person adversely, the administrator should provide, among others, prior and adequate notice of the nature and reasons for the action and an opportunity for redress.
KI has also litigated other cases that govern the operations of journalists,
including the Computer Misuse and Cybercrimes Offences Act and the Penal Code that
contain provisions that have been used to curtail freedom of expression and press