EXPERT OPINION: Without media freedom and free speech, Kenya is doomed

Kenya may have its share of negativities but it has relatively one of the most vibrant media landscapes in Africa.

In the country, journalists freely and actively work to expose and attack government corruption and other wrongdoing.

However, several laws restrict free speech and press freedom in the country as is the case in many others.

The government and security forces sometimes harass journalists and other activists for raising their fingers against the establishment; incidents that are rarely investigated by police at all.

The blend of restrictive laws on free speech and press freedom on one side and the potential for harassment and violence on the other lead to self-censorship in some cases.

In March 2020, for instance, Kenyan officials threatened that those who publish misinformation about COVID-19 will be slapped with a two-year jail term and a $50,000 fine.

Article 19, a nongovernmental organization, reports that arbitrary arrests and cases of harassment and assault have sky-rocketed since the Corona virus outbreak.

During this time, journalists, bloggers, and online activists are accused of spreading false information about the pandemic. 

In October last year, the National Security Advisory Committee released guidelines that allow for the Multi-Agency Team on Public Order “to monitor, document, and enforce compliance” with media broadcasting laws and social media usage guidance ahead of the 2022 general election.

These guidelines have been sternly criticized by a large coalition of media stakeholders.

The latest incident has opened the Pandora’s box. Communications Authority of Kenya (CAK) penalized a Radio station both with fine and six-month suspension of Lift-Off following unjustifiable, disparaging and gender insensitive comments that were mentioned in a morning show.

CAK said that the radio station had to demonstrate compliance with statutory and gender requirements by reviewing its editorial policy to get itself back on air.

Further, that there shall be mandatory training and sensitization of staff on gender issues as well as Programming Code. The radio station was also ordered to publish an apology during its prime time bulletins and in two national dailies to be circulated for five days consecutively. 

Censorship instinct of this type produces a chilling effect on freedom of speech. It restricts the media including newspapers, television, radio, et cetra from airing their views freely.

Naturally, of course, most of these forms of speech have a compelling government interest. Government may regulate, or censor speech if it has a compelling interest, is a public concern, or threatens national safety.

Yet, gender insensitivity is not a preserve of the media alone. We have witnessed more damaging gender insensitivity in other pristine quarters too.

“Dissolve the House,” former Chief Justice David Maraga had roared!

That call was in response to gender inequality and insensitivity in parliament.

It was in bad taste to see two women senators exchange blows over the election of the House Health Committee’s vice-chair.

Earlier, an MP was arrested for allegedly slapping a female colleague who was sitting on some budget committee because she did not allocate money to his constituency. 

The list goes on.

This begs the question as to why sacrifice a radio station already suffering from paused advertisements, public outrage and social outcry?

The services of the breakfast team were terminated. The radio station had swallowed the taste of its own medicine. 

As such, if ancient verities are to preserve their grip on people’s psyche, they must be ingeminated anew in the tongue and constructs of sequential ages.

That which at one era is the most trenchant vocabulary progressively develops into abstract ideas which are so tattered with use that they no longer transmit an unambiguous import. 

The principal facts may be as legitimate as always, however the language, even when it points to contemporary issues, no longer express the matching certainty; the wiles do not travel in a direction known to us; and they seldom give us undeviating solutions to the doubts we are raising. 

This is predestined since no formulation of a principle that is expected to influence people’s consciousness can be whole: it ought to be tailored to a particular ambience of attitude, assume much that is established by all men of the epoch, and exemplify broad values in terms of matters with which they touch upon.

The tune of free speech in a democratic set up is no exception.

The assertion and belief of free speech originates from the exigencies of the structure, plan, system and virtues of self-government.

That’s if men are to be governed, and then the governing must be done, not by others, but by themselves.

Consequently, governments derive their just powers from the consent of the governed. If that consent is lacking, governments have no just powers. 

This is a state of freedom or liberty of men in which coercion of some by others is reduced as much as possible in society.

 The epithet self-government has been used to describe many other good things of life. It is an inference from the basic democratic understanding that matters which demand public attention shall be determined by collective wisdom and franchise. 

Free expression, therefore, is a prerequisite for a healthy democracy. The citizens must be at liberty to examine and consider political questions explicitly, without any apprehension of governmental castigation, or democracy will decay and eventually perish.

Indeed, freedom of expression and democracy are intrinsically and mutually intermixed like a house on fire.

In Kenya, everyone has the liberty of expression which includes the freedom to hold opinions, receive and impart information and ideas without interference by public authorities and regardless of frontiers.

Freedom of speech and expression means the right to express one’s own conviction and opinions freely by means of words of mouth, writing, printing, picture or any other mode.

This provision protects speech from state censorship and political utopia.

Freedom of expression as enshrined under Article 33 of Kenya’s 2010 constitution encompasses the right to seek, receive, or impart information and ideas.

This right, however, does not extend to propaganda, hate speech, or incitement to violence.

The Supreme Court of the United States of America for example has had many interpretations of the First Amendment with regards to freedom of speech. 

The right of the state to censure the media remains the most debated controversies in America.

The First Amendment of the United States Constitution declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” 

This said, the First Amendment in the USA has been interpreted by the Supreme Court of America as not granting people blanket right to say whatever they want, whenever, and wherever they want. It was not intended to protect free speech at all times and in all places.

The Court has consistently ruled that the government has the power to impose limits on free speech in regard to its time, place, and manner of delivery.

As noted in Clark v. Community for Creative Non-Violence (1984), these restrictions are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.

The media, such as newspapers, radio and television programs are ordinarily subjected to governmental control in order keep programs inoffensive to the public.

The media has been the most fertile ground for governmental regulation of free speech. 

Television, radio, and other forms of information communication have, therefore, not shied away from determining in courts of law, as to what freedom of speech actually means.

Censorship is the change in the access status of material, made by a governing authority or its representatives. 

Such changes include:  exclusion, restriction, removal, or age/grade level change. 

Censorship has restricted newspapers, television, radio, etc. by not allowing them the right to free speech.  

The dilemma has been amplified since the birth of the internet: should the Internet be regulated and restricted by government in order to protect today’s children, or does this abridge an individual’s right to free speech?

Freedom of speech is a constitutional right of the people of Kenya. Yet this right is not absolute. Some forms of speech are thoroughly outlawed. 

Lately, the Internet, a technological masterpiece, has been the subject of great controversy. 

Certain individuals feel as though the Internet should be governmentally regulated and censored in order to protect the youth of the country. 

On the other hand, the regulation of material on the Internet would, in fact, violate freedom of speech and expression.

Those who seek to impose limitation on expression do so ordinarily in order to forestall some anticipated effect of expression in causing or influencing other conduct. 

In essence, this means that governmental censorship would primarily attempt to stop an unintentional effect of certain speech or expression on the Internet; in other words, the government would be opposing the idea of individualism in society. 

When controlling what people read or view, whether in a book or on a computer monitor, the government limits people’s ideas and their thought capacities.  

Freedom of speech means not only freedom from any form of governmental control, but also freedom from private social pressures that could also inhibit thought and opinion. 

As citizens of Kenya, individuals have the right to be free from governmental control that inhibits thoughts, ideas, and free expression.

We need to be careful. Otherwise, with this escalating constriction of public space, there is no reason to believe that this is our final destination; for the political and cultural winds that favour this station continue to rage, perchance blooming before them earlier terminals and bringing forth at some later stage an end as yet unknown. 

The debate in this opinion is among the most interesting and controversial in contemporary Kenyan political realm.

Thus, its significance is more than a scholarly adventure. The issues raised herein affect every citizen; they are the issues that today’s leaders debate and tomorrow’s will decide.

The issues touch all of us whether as Kenyan politicians the nation’s common citizens.

The individual is thus encouraged to become more actively involved in resolving these debates, as a voter, a concerned citizen, a journalist, an activist, or an elected official.

Democracy is based on education, and every voice counts; so every opinion must be free and an informed one.

Dr. Nyatundo, a Kenyan legal scholar writes for The Scholar Media Africa from India. His contact:

Previous articleKenya upscales vaccination against Covid-19
Next articleDoes the history we learn in school add up?
Dr. Oruongo is a Kenyan Legal Scholar based in India. His contact:


Please enter your comment!
Please enter your name here

This site uses Akismet to reduce spam. Learn how your comment data is processed.