Ezekiel Mutua undoubtedly has a knack for self-promotion. When I first met him as Secretary General of the Kenya Union of Journalists more than a decade ago, I could tell he was a man of no small ambition. Today, as head of the Kenya Film Classification Board, he has found a way to insert the previously obscure regulator into the limelight.
However, the way he has gone about it in complete disregard of what the law says about his organization’s mandate. The laws he claims give the KFCB powers to police what Kenya’s media broadcasters carry between 5 a.m. and 10 p.m. (the so-called “watershed”) actually do nothing of the sort.
And this is not the first time the Kenyan Government has tried to use the organisation as a de-facto media regulator. In 2001, the then Minister of Information, Transport and Communications and now opposition luminary, Mr Musalia Mudavadi, published a notice in the Kenya Gazette which purported to place the media under the ambit of the KFCB, then more honestly known as the Kenya Film Censorship Board. This occasioned a six-year court battle with the Nation Media group which ended in a High Court judgement quashing the notice and describing it - and thus Mr Mutua’s current near identical power grab – as “not necessary or justifiable in a democratic society such as Kenya”.
Unfortunately for Kenya, Mr Mutua is more the rule rather than the exception when it comes to the Uhuru Kenyatta administration’s attitude towards the law. He is basically following a script that has been perfected by the Kenyan state which routinely exercises powers it does not have, ignores what the courts have to say when it deems it inconvenient, and appears to consider the constitution more as a set of guidelines rather than actual rules.
This attitude has been on display in the state’s reaction to the death of dozens of Kenyan soldiers in El Adde, Somalia when Al Shabaab militants overran their base two weeks ago. Under the guise of defending the national interest and stopping Al Shabaab propaganda, the government issued a warning against republishing or even retweeting gory images of dead soldiers which the terror group has uploaded online. This appears to have now mutated into a blanket ban on publishing any imagery (except its own) of the aftermath of the battle.
Pursuant to this, several people, including journalists and bloggers, have been arrested for questioning reportedly over images they shared via online platforms. The most prominent of these was Yassin Juma who spent the last weekend in a cell after being arrested for posting images of burning KDF vehicles, and Eddy Reuben Illah who has been arraigned in court for allegedly sharing pictures of dead soldiers with members of a WhatsApp group.
But is doing this actually illegal? Initially, media reports about the government’s warning cited the Penal Code Section 66A which appears to justify the government’s actions. In fact, a widely circulated charge sheet indicated that Mr Illah would be charged under that law. What the media failed to highlight was that the section was part of the controversial Security Laws Amendment Act and had been struck off as unconstitutional by the courts.
In any event, Mr Illah was actually prosecuted for contravening Section 29 of the Kenya Information and Communications Act, a Nyayo-era law that criminalizes using “a licensed telecommunication system” to either send offensive, indecent, obscene and menacing messages; or to annoy, inconvenience and cause “needless anxiety” by means of a false message.
Needless to say, none of these terms are actually defined in the law, giving wide leeway for abuse by the authorities. Even more importantly, the courts, in their ruling throwing out the previously mentioned Section 66A of the Penal Code, already comprehensively dealt with the issue of images of terror attacks.
In court, the Attorney General had justified the introduction of the amendment by arguing that “freedom of expression has been abused by the media in publishing pictures of fatally injured people and of security operations, to the advantage of the publicity sought by terrorists.” However, in rejecting this the court declared:
“This new offence under the Penal Code that seeks to punish 'insulting, threatening, or inciting material or images of dead or injured persons which are likely to cause fear and alarm to the general public or disturb public peace' thus limits the freedom of expression to a level that the Constitution did not contemplate or permit, and in a manner that is so vague and imprecise that the citizen is likely to be in doubt as to what is prohibited.”
The parallels with the aforementioned KICA Section 29 are hard to ignore. Essentially, the government is doing an Ezekiel Mutua, claiming to exercise powers it does not have and ignoring court rulings that say it does not have them. Now, none of this is to say that publishing images of dead KDF soldier is a good idea. However, the government claims it is illegal, which it clearly isn’t and is using the law to intimidate those who present a different narrative from the one it is propagating.
An even more sinister reason is to be found in the words of one of the bloggers hauled in for questioning by the police. Cyprian Nyakundi, who spent two days in police custody before being freed on intervention of the Office of the Director of Public Prosecution, said he was questioned on “the whereabouts of other wanted bloggers and why he was critical of government at large.”
Thus this is a thinly veiled attempt, not to preserve national security, but to stamp out dissent. It fits into a pattern of media intimidation which has seen journalists who did not toe the government line fired from mainstream newspapers reportedly at the behest of State House. That campaign has now reached the shores of Kenya’s vibrant social media scene.
Like Mr Mutua, the Uhuru government has nowadays developed a knack and taste for self-aggrandizement. But we should all be very concerned when it is willing to subvert the law to ensure that its story is the only one that can be told.