Monday, August 06, 2007

When a Journalist is not a Journalist

In the past few weeks, the local media has been beside itself over the passage of the Media Bill 2007. In editorial after howling editorial, parliamentarians have been excoriated (and rightly so) over their attempts to force journalists to reveal their sources. However, the mainstream media is itself far from blameless.

In May, Bankelele wrote a post on the difficulty of obtaining an online copy of the just passed Media Bill 2007. Back then he wrote: "It was disappointing that so far everyone talks about it, but few (member of the public) have seen it. Even media houses have remained selfish with the document, withholding it and only telling us what’s bad about it." The original Media Bill 2007 authored by Information minister Mutahi Kagwe is available online here, though considering the reports of "deals" between "media stakeholders" and the government, it is unlikely that it was passed in this form. And perhaps therein lies the reason why neither the government nor the media houses want you to see it.

One of those "deals" was amending the clause defining who is a journalist. The original definition in Kagwe's bill reads: "'journalist' means any person who 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". According to the Standard, some "media stakeholders" would like to replace this definition with one that includes the provision that a journalist is one who "holds a diploma or degree in mass communication from a recognised institution of higher learning and is recognised by the council as such". Media Owners Association (MOA) chairman, Mr Hannington Gaya thinks, "[The proposed amendment] makes journalism a respected profession as it distinguishes who is a journalist and who is not".

However the effect of such a clause would be to deny many lifelong journalists (including cartoonists such as GADO and MADD) legal recognition on the pretext that they do not possess the requisite academic qualifications. By this definition, Wahome Mutahi would not be considered a journalist. Many self-published individuals such as bloggers would also be denied similar recognition as would members of the so-called "alternative press". Since this is a statutory definition, all of us would lose any protections offered to mainstream "journalists" under the Bill.

Nothing more than a thieves' bargain, this is a crude attempt by the established Media houses who make up the MOA to hog the media space. Far from seeking to bring "respectability" to what Paul Muite calls "a necessary evil", the amendment seeks to place limits on who may or may not practice journalism. It also plays into the hands of politicians who would like nothing more than to limit the avenues through which information can be conveyed to the public. It needs to be opposed by all.


Anonymous said...

Chairman of the Parliamentary Committee on Constitution and Legal Affairs, Mr Paul Muite,and Patrick both make enough points about the proposed bill to effectively kill it. If it is actually on the President's table then the Kenyan public is being dealt a severe blow to any hoped for or demanded transparency in public life.

Why any media committee would sign on to such features (making journalists reveal sources and journalists having to register and have a college education)tells the world that Kenyan media has been either seized by or sold out to government.

bankelele said...

My point was that newspapers should have made the bill public (I even asked one editor to do so) so that the public could understand what was at stake. Instead they only kept telling us what was bad about the bill. The controversial new clause flies in the face of whistleblower legislation passed this year

Gathara said...

And my point was that the media itself has as much reason to keep the Bill secret as does the government. It irks me that evryone is up in arms against the nefarious amendment introduced by the Ol Klou MP while ignoring the equally nefarious amendment negotiated by the Government and so-called "media stakeholders" relating to the definition of a journalist!

Xuxa said...


I'll wade into this cautiously. I read the ammendment that was made to clause 38 of the Bill - “When a story includes unnamed parties who are not disclosed and the same becomes the subject of a legal tussle as to who is meant, then the editor shall be obligated to disclose the identity of the party or parties referred to.”

It seems to me that it refers to the object of the article, the person being referred to not the source of the story. Is this a case of distortion by media houses?

Gathara said...

The mischief is in the wording. The "unnamed parties who are not disclosed" could refer to anyone whose identity is concealed in the story. There is nothing in the wording that exempts confidential sources.

Anonymous said...

@ Xuxa and Gathara,

I think Xuxa point is correct and crucial

If the case is already in the courts, then this same court will determine who this "unnamed parties who are not disclosed" is.

The question becomes, how will a case with "unnamed parties who are not disclosed" even end in a "legal tussle" to begin with?

Anonymous said...

>>There is nothing in the wording that exempts confidential sources.

This by itself is not reason enough for the president not to assent this bill.

The real mischief is NOT in the wording, but with those who seek to bring in "confidential sources" into this.

In any case any constitutional court should rule that since it is reasonable to assume paliament did not intend to contradict itself (with regard to whistleblower legislation) these "unnamed parties who are not disclosed" are as xuxa writes the subjects in news articles not the source

Gathara said...

First of all, the Bill contains other clauses which by themselves render it unacceptable. The gist of my post was to highlight one of these i.e. the requirement for one to hold a diploma/degree in mass communication in order to qualify as a journalist and the requirement for recognition as such from the statutory Media Council of Kenya.

Secondly, the courts do not have recourse to ask the MPs whether or not they intended to contradict themselves. They deal with the laws as written. Here's what Section 40 of the Draft Freedom of Information Bill 2007 says in regard to whistleblower protection (you can find it here):

40. (1) No person shall be penalized in relation to any employment, profession, voluntary work, contract, membership of an organization, the holding of any office or in any other way, as a result of having made or proposed to make a disclosure of information which the person obtained in confidence in the course of that activity if the disclosure is one which is in the public interest.

(2) Subject to sub-section (3), the provisions of sub-section (1) shall only apply where the person believes on reasonable grounds that the information is accurate.

(3) For the purposes of sub-section (2), a disclosure which is made to the police or to an appropriate public authority shall be deemed to be made in the public interest.

(4) For the purpose of this section a person is penalized if the person is dismissed, discriminated against, made the subject of any reprisal or other form of adverse treatment or is denied any appointment, promotion or advantage that otherwise would have been provided; and the imposition of any such penalty in contravention of this section shall be actionable as a tort.

(5) Any term of any settlement arising from a claim under this section, insofar as it purports to impose an obligation of confidentiality on any party to the settlement in respect of information which is not inaccurate and which was or was proposed to be disclosed, shall be unenforceable.

(6) In any proceedings for an offence for contravention of any statutory prohibition or restriction on the disclosure of information it shall be a defence to show that in the circumstances the disclosure was in the public interest, and where the offence is alleged to have been committed by a public servant or Government contractor and involves the disclosure of information obtained by the person in the person’s position as such, that the defendant had before making the disclosure complied with the provisions of sub-section (2).

Nowhere does it guarantee the confidentiality of the whistleblower or that of any journalist's source for that matter.

Anonymous said...

@ Gathara

Thanks for the clarification. I must confess i have not had the time to follow the details in these two laws

Having read the original Media Bill 2007, i think that as written it recognizes the "public interest" in protecting the media and sources "whistleblowers".

Of course these might be a different from other "confidential sources" where there is no "public interest".

What i meant to say is that when faced with a case with these seemingly ( to some )contradictory laws, a reasonable judge should apply Section 40 of the Draft Freedom of Information Bill 2007

This law is deliberately loose/vague about what legal tussle is and what "obligated" mean.

Should it have been more firm? I prefer it this way, so that real people can have room to implement it

Gathara said...

The main ambiguity rests on who the "unnamed and undisclosed parties" refers to. Section 40 of the Draft Freedom of Information Bill 2007 says nothing about protecting the confidentiality of news sources; it only shields those sources from recriminations after they are identified.

In that sense there is no contradiction with the amendment made to clause 38 of the Media Council Bill. Even though the latter acknowledges that "in general, journalists have a professional obligation to protect confidential sources of information", a journalist can still be compelled under clause 38 to reveal his/her source.

The only way to change this state of affairs is for the President to return the Bill back to Parliament so the necessary clarifications and amendments can be made.

Xuxa said...

I think there're as many interpretations as there're lawyers but I do agree that it needs to be taken back to Parliament for clarification.

Anonymous said...

I personally do not support a blanket shield for leakers ("confidential sources" ) for 2 reasons.
first, for the economy to function, confidentiality agreements must be seen to function

second, there are good leakers and bad leakers (scooter libby case!!)-- even "deep throat" of the Nixon era turned out to be the FBI No. 2 who instead of solving this crime was leaking it to the press

I think paliament should allow enough flexibility for lawyers to argue these cases on a case by case basis

Gathara said...

First, the "blanket" shield for sources seems to have done little appreciable harm to the US economy. I have nothing against maintaining confidentiality in business. However when deals are cut against the public interest, we have every right to be informed of them. What you are suggesting though would require a court case every time a journalist quotes an unnamed source. That is not only needlessly cumbersome, it is a deterrent against people coming forward. You chose to err on the side of the establishment. I would chose to err on the side of public interest and that requires an unfettered Press that doesn't have to look over its shoulder every time they publish something.

Secondly, are you arguing that the media should never have been allowed to publish the leaks from Deep Throat? Or that they should have been compelled to reveal his identity? In either case, how would that have served the public interest?

Anonymous said...

Actually the US does NOT have any shield for sources at Federal level, although some states have tried enacted similar laws at state level

If "deals are cut against the public interest" as a matter of public policy, I dont think the press, which are businesses with a profit motive, are the appropriate entity to handle the matter

As you can imagine, the situation is even more dire with the use confidential sources ( result of infighting among thieves??)

If certain individuals are making serious allegations, then they should have the fortitude to reveal themsevles

Gathara said...

Yo are right that the US does not currently have any protection for sources at the Federal level. However, some form of "reporter's privilege," either through laws or court decisions, already exists in 49 states and the District of Columbia.

And both the House of Representatives and the Senate are currently considering legislation to put such a shield in place.

In fact, two weeks ago a congressional panel voted, against the Bush administration's wishes, to shield journalists including advertising-supported bloggers from having to reveal their confidential sources in many situations.

Though journalists could still be forced to reveal their sources (when necessary to prevent an "act of terrorism" against the United States or its allies, when it's clear that crimes have been committed, when "significant specified harm" to national security could occur, or when trade secrets, nonpublic personal information or health records are compromised in violation of existing laws) there is recognition of the need to protect sources. The legislation requires the person seeking to compel the journalist to turn over the information to have exhausted "all reasonable alternative sources."

If we were to adopt your standard that "individuals making serious allegations should have the fortitude to reveal themselves", do you imagine that we would have ever heard of Goldenberg, the Artur Saga, Anglo Leasing or any of the other scandals that have been exposed by confidential informants?

Anonymous said...

@ Gathara
I would prefer a set up in kenya that is similar to that of the US

We have a problem with corruption in our country, "confidential sources" in the media is NOT the solution---its like a short cut. Is the end is supposed to justify the means?

On shady deals, the government should be (i think it is) required to publish (and BTW not in the nation or standard) details of ALL its transactions, deliberations and dealings.

On "Goldenberg, the Artur Saga, Anglo Leasing" these we not broken by confidential sources

I think the PAC and Raila did most the work

Gathara said...

No one is suggesting that the media will solve the corruption problem. But since we cannot realistically expect government officials to suddenly start committing hara-kiri, I submit that it would be wiser to allow those who may be in the know to spill the beans albeit anonymously.

BTW, David Munyakei was the secret source behind Goldenberg, and Raila claimed to harbour a confidential informant in the Artur Saga. You may be right about Anglo-Leasing though I suspect that many a secret source was employed.

Anonymous said...

Ok, and in the first place why do we need a media bill ?