H.E. Daniel Arap Moi
President
Nairobi
Kenya

Vienna, 17 December 2001

Your Excellency,

The International Press Institute (IPI), the global network of editors, media executives and leading journalists from newspapers, magazines, broadcasting organisations and news agencies in over 115 countries, is deeply concerned about proposals for media law amendments that would have an adverse effect on media freedom in Kenya.

According to IPI’s sources, the Statutes Law (Miscellaneous Amendments) Bill includes measures that will create the office of a government censor with specific oversight of media content and will require registration of publications through the execution of an exorbitant bond. Non-compliance with the new measures would lead to huge penalties, including the imprisonment of editors, the de-registration of newspapers and a ban on publishing.

The amendments to the Film and Stage Plays Act will require prior government licensing of the production of television programmes and advertisements. Also needed will be the granting of permission to alterations and additions made to a film that has already received a license. This amounts to pre-publication censorship of content. Furthermore, there would be no appeal to the judiciary to entertain grievances that may arise against enforcement of the Film and Stage Plays Act. The licensing officer – whose qualifications are not specified by the Act – would be vested with absolute discretion. The officer would be under no duty to give reasons for the revocation of licenses. On the other hand, some applicants may be allowed to operate without licenses or on preferential terms and conditions.

The Books and Newspapers Act will in IPI’s opinion unfairly apply with strict liability to vendors and distributors of printed material. Even if they do not know that a publication is unlicensed they could be punished severely for merely possessing it.

The new security bond, moreover, has increased one hundred times, from 10,000 Kenyan shillings to one million Kenyan Shillings (US$ 12,500). In IPI’s opinion, this is an exorbitant and unnecessary amount, which only comes at the cost of a cardinal tenet of justice, the presumption of innocence. Publishers, editors and journalists will be expected by the government to defame and libel persons and will therefore be treated as de facto habitual offenders by the Act. State power is thus abused to create “funds” for successful plaintiffs. Similar to the Film and Stage Plays Act, the Books and Newspapers Act will also unfairly exclude government-owned or government-printed publications from licensing.

Rather than amending the above mentioned legislation, it would be necessary to repeal some of the discriminatory clauses completely. Historically, these laws were enacted just before independence in Kenya, to ensure that the newly formed political authorities would have the necessary legal means against political radicalism. After this period of transition, the Kenyan Constitution came into being and the compatibility of several of the provisions of these Acts with the fundamental rights and freedoms granted by the Kenyan Constitution (Section 79) is to be questioned.

IPI regards censorship, jail sentences against publishers as well as journalists and threats of suspension of media outlets as gross violations of everyone’s right to “seek, receive and impart information and ideas through any media and regardless of frontiers” as guaranteed by Article 19 of the UN Universal Declaration of Human Rights.

We therefore urge Your Excellency to ensure that the Statutes Law (Miscellaneous Amendments) Bill is dropped and that the Books and Newspapers Act and the Film and Stage Plays Act are replaced by Acts that do not contradict Kenya’s Constitutional freedom of expression guarantees.

We thank you for your attention.

Yours sincerely,

Johann P. Fritz
Director

Cc: H.E. Amos Wako, Attorney General
H.E. Francis Ole Kaparo, Speaker of the House