Partly to scuttle the pro-reform lobby but also to appease public opinion, the government moved fast to stave off growing discontent and brought leaders across the political divide to discuss pressing issues in need of urgent reform. This effort snowballed into the formation of the Inter Party Parliamentary Group (IPPG), an erstwhile plenary of Members of Parliament from both the ruling party KANU and the opposition. Among other issues considered by the IPPG was a look at legislation inhibiting freedom of expression and assembly in Kenya. It was an attempt to level the playing field for all parties in the run up to the general election by agreeing on a minimum reform package.
The IPPG deal resulted in the amendment and/or repeal of several laws through the enactment of the Statute Law (Repeals and Miscellaneous Amendments) Act, 1997. The act amended the Public Order Act (Chapter 56 of the Laws of Kenya) by substituting a notification requirement for the requirement to obtain a license before holding a public rally or procession. It also laid 'clear and present danger' as the standard for stopping rallies. This opened up the space somewhat for political parties to hold rallies without interference. Hitherto, the Provincial Administration had been in charge of licensing rallies, a task it had carried out in a shamelessly partisan manner ensuring that government critics never had the opportunity to take their case to the people.
The Act also introduced far-reaching reform to the law of sedition by amending s 52, and repealing sections 56, 57 and 58, of the Penal Code (Chapter 63 of the Law of Kenya). Section 52 gave the minister wide powers to proscribe publications which he deemed prejudicial to the interests of the state. It was amended to require the minister to have reasonable grounds before he could exercise his powers. More importantly, the exercise of powers would now be subject to the important limitation of being "reasonably justifiable in a democratic society." The amendment also established a Prohibited Publications Review Board to review all publications previously prohibited under s 52 and advise the minister as to whether such prohibition should be lifted; and to advise the minister generally on the exercise of his powers under s 52. The advice given to the minister by the Board is binding.
S 56 provided the definition of seditious intention and seditious publication. It was a wide definition indeed encompassing such things as bringing into hatred or contempt or to excite disaffection against the person of the President or the government. It also provided that in a prosecution under this section, an accused would be deemed to intend the consequences of his conduct. S 57 provided for the punishments for sedition, including imprisonment for 10 years and the granting to the police of draconian powers of confiscating or dismantling any printing machine suspected of being used to print or reproduce a seditious publication. This section was often used to disable printing presses of government critics and paralyze their operations. The amendments to the Penal Code should go a long way in enhancing freedom of the press in Kenya. Indeed there is already evidence of this on the streets of Nairobi with the proliferation of the so-called 'alternative press' which is highly critical of the government.
But if the government has shown a tolerance of the printed word, it has completely refused to loosen its grip over the spoken word. For while the IPPG package had recommended that all pending applications for radio and TV licenses be processed within 30 days, the government reneged on its undertaking to give practical effect to this recommendation.
As a result, a host of applicants keen to join the broadcast media, now in excess of 100, remain unlicensed in a sector where only persons considered the government's blue boys have been granted licenses (with the notable exception of the BBC which was granted rights to operate an FM radio wave last year.) As things stand, the licensing of broadcast stations in Kenya is still a controversial issue guided by a government policy devoid of any cognizable criteria in the award of broadcast frequencies. The recent cancellation of broadcast frequencies awarded to the East African Television Network (EATN) after the Nation Newspapers bought into the company and got a controlling influence, has emphasized the government's reluctance to free the airwaves to persons considered critical of its policies. While the EATN dispute has since been referred to court, there is outright unanimity that the matter illustrates the government's brazen attempt to censor public opinion through a selective and sloppy grant of broadcast licenses, a blatant travesty of free speech values. And despite the fact that the IPPG specifically recommended that s 8 of the Kenya Broadcasting Act (Chapter 221 of the Law of Kenya) be amended to provide that" the corporation shall keep a fair balance in all respects in allocation of broadcasting hours as between different political view points", this aspiration has continued to be honoured more in the breach than in the observance. The national broadcaster continues to be unashamedly slanted in favour of the ruling party KANU.
Kenyans are currently embarking upon a national exercise of comprehensive constitutional reform. The process is already fraught with difficulty as the old guard seeks ways to cling onto power. And despite the considerable gains on paper brought about by the IPPG reforms, the police continue to forcefully break up opposition rallies with impunity, sending the signal once more that the battle for basic freedoms taken so much for granted elsewhere, is far from over here.
Gichinga Ndirangu
Legal Correspondent
'The East African'
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