If there is something that is so crucial in a democracy is the need to ensure that information freely flows from one person to another. To this point therefore, it is worth noting that the media simply acts as a vessel through which this information is channelled to the citizens and everybody else. Voters are only able to make informed decisions once they have the right information. Given that they elected the leaders into political offices, they expect that they should be well informed on what the leaders are doing with this power that they have donated to them. In case the leaders breach this trust that has been bestowed on them then the voters are within their political rights to vote them out in the subsequent elections.
The role played by the media in ensuring that timely information is disseminated to the people cannot be gainsaid. Jurisprudence, as we are going to see in this article, has always favoured allowing the media to do all that it takes so that it can get to the bottom of the matter. In any case, if there is need to limit the freedom of the media then the limitation should not fall short of the constitutional requirements in Article 24 of the Constitution of Kenya, 2010. The said Article provides that any limitation to a right or fundamental freedom in the Bill of Rights should not be limited not unless the limitation is among other things reasonable and justifiable in an open and democratic society.[1] To bring this into context, both the right to access to information and the freedom of media form part of the Bill of Rights.
Another alternative way of looking at the freedom of media is that it is a form of artistic expression. This alternative view clearly demonstrates that limiting the right to freedom of the media will be limiting three rights in one that is; right to access to information, freedom of media and the right to expression and specifically the right to artistic expression. Caution must therefore be taken and such a right should only be limited in exceptional circumstances. The artistic expression angle of the freedom of media stems from the fact that regardless of the type of media; be it print media or television, creativity is needed for the information to be effectively passed to the people.
A balancing act
The freedom of the media is not an absolute right and therefore it is subject to limitations where circumstances allow. This may be done in order to maintain public morality and public security among other things. It is worth noting that this list is not exclusive and therefore there have been several abuses on the same. But at the same time, fair comments or comments made by media with an honest belief in their truthfulness should not be limited merely because it is likely to offend a certain quota or clique of people. Where there is a conflict between the freedom of media and other rights such as the right to privacy then the freedom of media should reign supreme by the dint of the important role that it plays in facilitating access to information.
I have no intention of portraying the media as a perfect and flawless entity. As a matter of fact, the media has at times openly demonstrated its biasness. The most obvious way in which this outright unfairness has been seen is the manner in which the media reports. The media at times cherry picks the part of the information that it wants to showcase to the public. The net effect of this behaviour is that it leads to misinformation. Caution must therefore be taken by the public so that the media should not overexploit this loophole to their advantage while disadvantaging everyone else. At the same time we cannot ignore the nature of media houses to have catchy headlines so as to boost their viewership and the number of people that flock their pages to read their contents. This at times leads to misrepresentation of facts especially for people that opt to simply skim through news items.
At the same time the court has stated in the past that Kenya is a democratic state with a democratically elected leadership hence the people of Kenya have a democratic right to discuss affairs of their government and leadership because of their right to freedom of expression guaranteed by Article 33 of the constitution.[2] Kenyans cannot be freely expressing themselves if they do not criticize or comment about their leaders and public officers.[3] That goes without saying that the media is not expressly limited from exercising its right to freedom of expression through its agents. At the same time and as earlier stated, the media plays a very important and facilitative role in assisting the citizens to enjoy their right to freedom of expression.
At the same time, we have to be alive to the fact that media houses cannot be used as gossip centres. Therefore, they cannot be engaged in rumour mongering about the private affairs of anybody including politicians without getting punished. As equity rightfully puts it, nobody should suffer harm without a remedy. The court was categorically clear in the case of Chirau Ali Makwere v Royal Media Services Limited [2005] eKLR where it reached a finding that the words published of Chirau Ali Makwere in the absence of their truth being proved, were defamatory on the face of them as they were likely in the time honoured words to bring him into hatred, ridicule and contempt from fair minded members of the public that the right to freedom the media should be exercising in a fair manner.[4]
Contextualizing the freedom of media
This article attempts to make comments concerning the recent bitter exchanges between Moses Kuria, the trade cabinet secretary and Nation Television famously known as NTV. This followed an expose that was carried out by NTV, which belongs to the Nation Media Group, on oil scandal. From the look of things, the trade cabinet secretary did not take the expose lightly as he went on full swing with tweets and comments full of obscene and foul language. The Nation Media group did not lie low as they went out to support NTV in this fight.
The trade CS went further and threatened state officials advertising with Nation Media.[5] This conduct is unbecoming of a public official whose powers and functions are closely monitored by the public. It is good enough that the threats received the ridicule that it deserved from the people who were targeted by it.[6] The trade CS should have taken a better and more mature approach as opposed to resorting to threats and abuses. This is equivalent to an abuse of public office and hence it will only be fair enough for Moses Kuria to offer a public apology.
There are better ways in which this matter could have been handled. Nothing prevented him from moving to court and claiming that NTV had published defamatory statements about him. This way, the issue would have been solved amicably and without attracting much negative attention. However, if this current approach continues then it is highly likely that the media may chicken out and subsequently it will very difficult for the public to access information on how the government is carrying out its duties. We cannot just sit back and wait for that to happen. It is upon us to voice out our concerns in an attempt to ensure that we do not go back to the dark days when the media was simply a puppet of the government.
Conclusion
Much has been said in the past about how the media influences our daily choices. It is healthy to allow the media to carry out its duties without unnecessary interferences. This can only happen when the freedom of the media is given the respect that it deserves. The government and other political players should not view the media just as something whose rights they can limit at whims.
The author is a final year law student at the University of Nairobi. He has a keen interest in legal research and he enjoys writing on legal issues.
[1] Article 24 of the Constitution of Kenya, 2010.
[2] Robert Alai v The Hon Attorney General & another [2017] eKLR.
[3] Ibid.
[4] Ali Makwere v Royal Media Services Limited [2005] eKLR.
[5] Monday, K.N. on and Nyamasyo, K. (2023) CS Kuria threatens Nation Media with dire consequences, Kenyans.co.ke. Available at: https://www.kenyans.co.ke/news/90517-cs-kuria-threatens-nation-media-dire-consequences (Accessed: 21 June 2023).
[6] Citizen, citizen (2023) EACC rubbishes Moses Kuria’s threats to sack gov’t officials who work with NMG, Citizen Digital. Available at: https://www.citizen.digital/news/eacc-rubbishes-moses-kurias-threats-to-sack-govt-officials-who-work-with-nmg-n321969 (Accessed: 21 June 2023).
