Press Freedoms Under Threat In Kenya

The arrest and detention of two Kenyan bloggers, Robert Alai and Patrick Safari over pictures of dead Kenyan security officers that shared on their Twitter timelines has once again shone the spotlight on government threats to media freedom in the East African country.

The pictures posted by the two showed some of the bodies of 12 police officers killed when their vehicle ran over a landmine suspected to have been planted by members of the Somalia-based Al Shabaab terror group. The bodies had been piled in the back of a government pick-up in a disrespectful manner.

The government, perhaps predictably, took a dim view of his actions, with the National Police Service and the National Cohesion and Integration Commission both urging the photos to be taken down the pictures. The police declared in a statement that the bloggers had chosen to “callously disregard common decency of showing respect to the departed and their families”. The NCIC chimed in claiming that the pictures would cause despondency among the country's armed forces and could be construed as “propaganda for war which is not protected under the constitution”.

Both institutions seem apparently oblivious to the irony of claiming that it is not the actual treatment accorded to the officers’ bodies that showed disrespect but rather the reporting of it that was the problem. It is however not surprising. Such attempts at shaming Kenyans into silence are always employed whenever the government wishes to hush up criticism of its apparent lack of regard for officers and troops.

In January 2016, after nearly 200 Kenyan soldiers were killed in an Al Shabaab attack on their base near the Somali town of El Adde, the government also attempted to suppress any images that would highlight the scale of the failure, even going as far as to arrest and question a number of bloggers and journalists who posted pictures of the attack (though not necessarily of the dead) on his Twitter timeline. The government-sponsored hashtag #HonourOurHeroes was deployed to suggest that those demanding the truth about how many people died and for senior officers to held to account were somehow the ones dishonouring the troops, not the clumsy attempt at a cover up.

Earlier this year, on the third anniversary of that massacre, Al Shabaab militants attacked the DusitD2 hotel complex in Nairobi, killing at least 21 people. The New York Times published pictures which showed bodies of some of the dead, sparking a wave of online outrage from Kenyans on Twitter, calls for the deportation of their incoming bureau chief and threats of deregistration by the Media Council of Kenya – a state-funded body which regulates media in Kenya. At the time, while agreeing with the general consensus that the NYT was wrong to publish the pictures, some, including me, warned that allowing, and even encouraging, the government to get involved would establish dangerous precedents.

Today, those chickens are coming home to roost. The legitimization of the use of state power to intimidate and threaten the media has further emboldened those who are wont to shut down dissent. It is worth remembering that the Kenya government has had a long-standing ambition to censor the publication of pictures from terrorist attack. One attempt in 2014 sought to amend security laws to criminalize the publication of photographs of the bodies of terrorism victims without the consent of the police. It was fortunately declared unconstitutional for violating the guarantees of freedom of expression and of the media.

The government is well aware that the High Court in that judgment clearly disagreed with the idea that “images of dead or injured persons” even those “likely to cause fear and alarm to the general public or disturb public peace” amounted to propaganda for war. Though it is yet to state what laws the two bloggers are supposed to have broken, following a court appearance, they will however be jailed without charge or trial for at least two weeks while the police apparently investigate “claims they might have received the photos from an Al Shabaab sympathizer”. This despite the fact that a police officer has reportedly been arrested on suspicion of being the source of the images. The point of all this seems less to secure convictions than to harass and intimidate citizens and journalists into silence. It is little more than an abuse of both police powers of arrest and of the court process. In addition, the whole saga may also be a ruse to distract from uncomfortable questions regarding the whereabouts and quality of armored and mine-resistant vehicles that the government procured for the police three years ago to protect officers form exactly this sort of attack.

The media in Kenya should be very afraid. In essence, the government is looking to punish reporting that paints it in a bad light. If this sort of harassment is allowed to stand, it will not be long before regular journalists find themselves similarly treated when their stories rub the government the wrong way.

Ezekiel Mutua, Bloggers And The Dangers Of GoK's Single Story

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.