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In Kenya, Bloggers Say New Media Bill Makes Them Vulnerable to Prosecution

BY Neelam Verjee | Tuesday, January 21 2014

The new media law broadens the definition of "journalist" and gives courts authority to impose stiff fines (credit: CPJ)

Kenyan bloggers have sounded a warning that “draconian” media legislation introduced late last year among a storm of controversy could stifle the country’s vibrant online community.

Bloggers and writers have expressed concerns about what they called “ambiguous” definitions of the term “journalist” and “journalism” in the Media Council of Kenya Bill 2013, saying that it marked the latest in a string of attempts to crack down on the country’s outspoken virtual community.

Kenya, which has a reputation on the continent as a technology innovation leader, is the second most active country in Africa on Twitter, the social networking site. In terms of global rankings on access and usage of the web, the country ranks fourth in Africa, and comes in ahead of Nigeria. To underscore its status as an ICT hub, Kenya, which has 19.1 million Internet users, recently saw both IBM and Microsoft set up offices in the capital.

“People assume that this media bill only applies to journalists, but this is an inter-connected world, and it will affect a lot more people,” warned Nanjira Sambuli, a self-described “micro-blogger” who runs the online hate speech project Umati at the iHub, the Nairobi-based incubator. “The bill defines journalist very loosely.”

The repressive legislation, which hands a government-appointed tribunal powers to fine media houses to the tune of KSH 2 million (US$23,310) and journalists up to KSH 500,000 (US$5,827) has been variously described in the Kenyan press as “one of the harshest in the region,” as well as “unprecedented,” and “punitive,” in addition to “unlawful,” and “draconian.” It is also argued that it is unconstitutional, and is contrary to Article 34(2) of the Constitution which provides for media freedom and freedom of expression.

The legislation has attracted comparisons in Kenya’s Daily Nation newspaper to media repression in “Zimbabwe, Cuba, Ethiopia, and Kuwait,” has spurred nationwide protests, and has drawn criticism from bodies such as the Committee to Protect Journalists, which says the legislation will “effectively silence critical reporting” and that it can be considered the most repressive in Kenya’s 50-year history. The Kenya Information and Communication (Amendment) Bill, 2013 and the Media Council of Kenya Bill, 2013 were signed into law at the end of last year by President Kenyatta and though it establishes a self-regulatory mechanism for the media, it puts the government-control tribunal on top of it.

While the legislation is ostensibly targeted at print and broadcast media houses and the journalists they employ, citizen journalists, bloggers, and micro-bloggers, or those who are active on Twitter, fear the loosely defined terminology masks an attempt to bring the unregulated online space into prosecutable reach.

In the last year, bloggers have shrugged off multiple attempts to bring them under the influence of the Media Council, including requiring them to undertake diploma and degree courses in mass communications, and gain accreditation. Currently, they occupy a legal “grey area” which makes it difficult for the government to prosecute bloggers, and the move to formally declare them “journalists” would change that.

Patrick Gathara, a columnist, cartoonist, and blogger, said that the lack of clarity around the definition of journalist does give cause for concern, and that it would have the effect of making writers and bloggers “think twice” about writing something that could define them as a journalist.

“The ambiguity around the definition is an issue,” said Mr. Gathara. “If it is the case that the mode of dissemination is judged, then Facebook, email, Twitter will all make you a target and the aim is therefore to get people to tone down criticism of the government and stifle opposition. It will have a dampening effect.”

Increasingly, he predicted, social media will be targeted by the government in the same way that mainstream media in Kenya has historically been, as it wields increasing influence on public discourse. “I don’t see [the government] leaving [social media] alone. When you have the Media Council saying that bloggers should have qualifications, it is essentially so that they can be prosecuted,” added Mr. Gathara.

However, concerns surrounding the ambiguity of the definition were dismissed by a senior member of the Media Council of Kenya, who declined to be named as he was not officially authorized to speak on the record. He insisted that the legislation was “limited to journalists working for media houses, that supported online and traditional platforms.” He added that bloggers, who wrote their own blogs, “would not fall under the remit” of the Media Council of Kenya. He continued: “It is difficult to regulate bloggers because if they have not subscribed to the code of ethics then they are not a journalist. This is the case anywhere in the world.” The chief executive of the Media Council of Kenya was not available for comment.

Social media users, bloggers, and Kenyans on Twitter, played an active role in stirring up debate during key events through 2013, including the general elections in March. Where the mainstream media chose silence in place of investigating and asking critical questions, a loose coalition of online bloggers, citizen journalists, and micro-bloggers stepped into the breach in a sometimes chaotic, but vocal examination of the official version of events. Among Kenya’s blogging community, the coverage of the Westgate terror attacks by bloggers and Kenyans on Twitter is seen as a turning point for social media in the war over control of information. Traditional media houses also incurred the wrath of the authorities following the attacks, after a channel broadcast footage of security troops who had been sent in to end the siege, purportedly looting the mall.

Irungu Houghton, a blogger and activist who recently worked to beat back a piece of legislation that would have restricted funding to NGOs from foreign donors, said that in the absence of the state capacity to inform its citizens, people had turned to Twitter for answers and the coverage there showed potential for social media to improve the standards of media as a whole in Kenya.

“In mature democracies people recognize if someone is lying, and there is no need to legislate against lies,” said Mr. Houghton. “There is a growing attempt to switch from self to direct regulation by the state, and this government does not see self-regulation is desirable or effective.”

He added: “The fines and penalties are completely excessive and punitive. As people are pushed into corners, they will find ways to get around it. That is the history of Kenya.”

The definition of "journalist" in the Media Council of Kenya Bill of 2013 is “any person who engages in the practice of journalism,” while that of “journalism” is “the collecting, writing, editing and presenting of news or news articles in newspapers and magazines, radio and television broadcasts, in the internet or any other manner as may be prescribed.” Finally, the definition of “publication” is “the dissemination to the public of any written, audio or video material, and includes materials disseminated through the internet.”

It marks a steep change from the Media Act of 2007 definition, where “journalist” was any person “who holds a diploma or a degree in mass communication from a recognized institution of higher learning and is recognized as such by the Council, or any other person who was practicing as a journalist immediately before the commencement by the Council, and earns a living from the practice of journalism, or any person who habitually engages in the practice of journalism and is recognized as such by the Council.”

A senior member of Kenya’s journalistic corps, who declined to be named, said he believed that the ambiguity was aimed at the blogging and online community, which unlike traditional media, lacked a structure and “address” where its members can be reached. He said that it was likely that the online community would be made an example of, and this in turn would set the stage for a confrontation between the government, and the media and online communities.

Mr. Gathara, who has called out Kenyan media in the past for brushing sensitive issues under the carpet, gives warning that if there is no resistance and the media legislation is accepted unquestioningly, there is a danger that it will erode freedoms, and that the laws will then acquire their own legitimacy.

“We need to ask questions but no one does and as these stories are repeated they become truth and established fact. We saw this with the demonization of civil society which started a few years ago, and that was allowed to take root. If the media asked the hard questions, then the government would find it harder to move,” said Mr. Gathara.

Neelam Verjee is a Nairobi-based writer. She has worked as a journalist in Mumbai and London.

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