FREEDOM OF EXPRESSION — CONSTITUTION OF KENYA ARTICLE 33
Article 33(1) clearly states that each citizen has the right to freedom of expression that includes; the freedom to seek, receive or impact ideas or information. However according Article 33(2) the right to freedom of expression does not extend to incitement to violence, propaganda to war, hate speech, incitement to violence or advocacy of hatred that constitutes ethnic incitement that includes sex, race, marital status, pregnancy or social origin, religion, disability, color, age, dress, culture, birth or language.
Article 33(3) in addition in the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others. However, these rights can be limited when national security, public order, public health or morals are endangered.
Internationally, both the universal declaration of human rightsArticle 19,European convention of human rights Article 10 and the charter of fundamental rights of the European union
(Article 11).All these articles protect the freedom of expression whereby everyone has the right to the freedom of expression that includes: Freedom to hold opinions, receive and impact information or ideas without interference by the public hence the freedom and pluralism of the media shall be highly respected.
FREEDOM OF MEDIA—CONSTITUTION OF KENYA IN ARTICLE 34
The freedom and independence of the of electronic, print and all other types of media is guaranteed but does not extend to incitement to violence, propaganda for war, advocacy of hatred or hate speech that brings ethnic incitement, instatement to cause harm, vilification of others or may be based on any manner of discrimination. In this part the law states that the parliament must enact legislation for the establishment of a body, political interest and independent of the control by commercial interest. The work of the body is to regulate, set media standards with and monitor compliance with the stated standards. The state is not allowed to interfere and control the media operation. The state cannot penalize any individual for any view or opinion or content of any broadcast and publication. The media has freedom of establishment of subject only through well stated procedures that regulate waves and forms of contribution are independent of control.
ACCESS TO INFORMATION ARTICLE 35 OF KENYAN CONSTITUTION
Article 35(1) each citizen can access information which is held by the state and information held by another person and required for the protection of any right.
Article35 (2) gives the individual power to demand the right to the correction or deletion of untrue information that affects the person. Finally the state shall publish and publicize any important information affecting the nation.
KENYA INFORMATION AND COMMUNICATION ACT 2013
In 1990’s the Kenyan media transformed to small number due to political commotion. Some parts of Kenya by 1982 the military mutinied hence the government slowed down the press. Mass publication of newspaper and magazines were cut down therefore some journalist practitioners 0found themselves detained in prison without trial because of their journalistic work. Some politicians demonstrated for independence in media were jailed and others detained. Therefore, this lead to only one broadcasting station which was reduced in powers and freedom because it acted as the state mouthpiece and the presidents speaking trumpet.
There high demand of political independence but the media space was limited, this lead to opening of the waves to allow other voices, a part from Kenyan broadcast corporation being the only station. The growth in technology lead to invention of cell phones but the government hesitated in giving to give a go ahead to start operating the phones.
By 1998 the parliament passed a bill the chapter 411A laws of Kenya which was named the Kenya communication Act then later in 2008 it underwent through clear stipulated amendments to renamed the Kenya information and communication Act. A communication commission was formed under the Act to oversee the radio communication, broadcast service telecommunication and electronic transaction. The commission favored journalist practitioners and prescribed penalties for any offence.
BOOK AND NEWSPAPER ACT
This Act of parliament to make provisions for the registration and deposit of books and newspapers for the printing of books and newspapers for the execution of bolds by printers and publishers of newspaper and matters related to publishing. After the natural resources were covered by the wave’s regulation of electronic media was made. It was perceived that radio and television had greater influence on the audiences but the print managed to be the oldest and was regulated first. Chapter 111 of Kenyan laws that is Newspapers and books Act was among the oldest legislation in the land of Kenya to be applied in print media.
The minister for communication and information was allowed by the law to appoint the Registrar of newspaper and books to perform his duties as per the Registrar the Act. The newspaper’s publisher were required to send two copies to the registrar every day before it was published the Act allowed a delivery of a maximum of three books by the publisher to the registrar in a duration of fourteen days after publication. Moreover school magazines in-house books/newspapers were accepted to deliver their work.
Section 11 of the ACT stated that a publisher should execute a bond of one million for him to start a newspaper production business; failure to this it is an offence that requires legal reputation. A fine of one million or imprisonment of three years was the penalty of the offence.
Section 19 of the Kenyan constitution allows any police officer not below the rank of assistant inspector to stop certain books and search any place suspected to have kept books or newspapers published contravention of the ACT.
Printed documents should bear the name of the printer and the publisher, every book and newspaper printed within: shall be printed legibly in English language then on the first or the last printed page should have the name and the address of the printer and the publisher, in addition to the name of the place, how it was printed and the place it was published.
THE PENAL CODE ACT CAP 56 OF THE KENYAN CONSTITUTION
This Act shall affect the liability, trial and punishment of a person for an offence against the law, this Act favours the journalist practitioners because it clearly stipulates any offence that might be committed during their duties and responsibilities. This offence lies under the category of minor offences that deserves a jail term of below three years.
Section 194 of the penal code makes the offence of the criminal libel, whereby libel is described as unlawful publishing of any defamatory issue concerning another individual.
Section 195 defines defamatory as something likely to interfere with the reputation of any individual by destroying the profession of that person.
Section 196 defines publication; a person publishes a libel if he causes the print, writing and painting that can convey defamatory matters dealt with through reading, exhibition, description and delivery.
OFFICIAL SECRETS ACT CAP 187
This Act provides for the preservation of the state secrets and state security and it started being used 1968.
Section 3(2) clearly stipulates that any person who takes a photography of a restricted place without permission of the relevant authority should be guilty of an offence hence should be jailed for fourteen days.
Anybody who records publishes and communicates to other individual in any code word, information, plan or document that is spread and disaffects an individual, shall be guilty of an offence then imprisoned for about five years. The Act denies anybody from spreading information to foreign power treated as a state secret.
A prosecution for an offence under the Act shall not be instituted except by the consent of the Attorney general.
Internationally, the United Kingdom, Singapore, New Zealand, India, Canada, Hong Kong and Malaysia, all these prohibit the disclosure of official documents and information that is considered to be sensitive. People working with sensitive information are required to sign a statement to the effect that they agree to abide by the restrictions of the official secret Act period.
PRESERVATION AND PUBLIC SECURITY ACT, CAP 57
The Act was started 1960 and is concerned with public security preservation. This Act gives the state powers and responsibility. The Act puts limits to the freedom of expression in Kenya e.g. 2018 when the NASA leader Raila Odinga was sworn in in kasarani as the people’s president but the media could not Air live broadcast and the channels were closed down. Therefore, any procession, meeting and association without the consent of relevant authorities are prohibited.
The regulation for the preservation of public security may make provisions; deleted by Act no. 10 of 1997 and the registration or restriction of movement of persons including the imposition of curfews.
Expenses, there shall certain amount of money provided by the parliament for any expense incurred by the government while passing this Act.
PUBLIC ORDER ACT, CAP 56
This Act makes provision for the maintenance of public order and for purposes connected with order. The Act started on 13th June 1960 and it permits police commissioner to apply curfew to restrict movement of people for some time to maintain public order in some parts of the country.
The commissioner of police is guaranteed power to prohibit the holding of race- meetings and entertainments. Also it bans the political meetings, demonstration and gatherings that encourage freedom of expression.
The Act only allows any meeting held and convened for the lawful purposes of any public body, any meeting of the members of any registered organization and trade union that is convened in accordance with the constitution of the organization and held entirely for lawful purposes of that organization and lastly any meeting convened for educational, charitable, cultural, social, commercial and industrial purposes.
MEDIA COUNCIL ACT, 2013
Article 34(5) of the effects Act in the Kenyan constitution by establishing commission, complaints and other purposes connected. This Act applies mainly to journalist practitioners, media enterprises, media practitioners, foreign journalists accredited under this Act and all consumers of media services.
Powers of the media councils are; to promote and protect the freedom and independence of media. Reviews and conducts annual performance, To promote professional standards and enhance journalists ethics, set standards for professional education and training for journalists, settle disputes between the government and the media, to ensure the rights and privileges of journalists are protected when carrying out their duties and lastly prescription of standards of journalists, media enterprise and media practitioners.
There is an established complaints commission that performs its functions or exercising its powers, shall be independent in its operation and shall be guided by the provisions of Article 159 of the constitution. These are the functions of the complaints commission; ensure the adherence to the standard of journalism as stipulated in the code of conduct, achieve impartial, speedy and cost effective settlement of complaints against journalists and media enterprises, without fear or favor in relation to this Act.
DEFAMATION ACT, CAP 36
This Act gives protections against reputation among media and other communication departments that exercise rights like the freedom of expression, public rights and freedom and independence of media. The Act has several media defenses that include; section 20 has limitation of actions that deals with filling of cases that shall be in less than two months from the date the defamatory was published. The section 16A deals with compensation to the defendant by setting certain amount when the court declares the defendant liable.
The section 7A states that people have right to reply to allegations made against them by deforming their reputation. Section 15 has fair comments – this ensures that any person cannot be accused with libel and slander after clearly showing the honest opinion in public matters, mostly uses critic Cases and other cases dealing with performance for comedians and cartoons Section 14 contains justification and truth, people can only make remarks that have truth in them then the justification of the defendants allegations the communication is declared true when there is no evidence.
Qualified privilege of newspaper found in section 7, defamation is categorized in slander –refers to the defamatory word that is either spoken or published while libel deals with broadcasting or publishing word that destroys individuals name.
Any action of slander by words that undervalue the plaintiff in any office, profession, calling trade or business carried out by him at the time of publication, it shall not be necessary to prove special damage whether the words were spoken to the complaint.
In any civil proceedings for libel, the court unless it is of the opinion that any reply under this section just irrelevant in all the circumstances of the case, shall be at liberty to an additional amount of damage together with the damages for defamation where the publisher has failed to publish a correction.
THE COPYRIGHT ACT, CAP 130
This Act of parliament makes provision for copy right in literally, musical and artistic works, audio –visual works, sound recordings, broadcasts and connected purposes under the Kenya copyright board.
Section 26 of the Act grants the producer more rights over the distribution by rental, sale, lease, communication to public and broadcasting hence the production in Kenya.
This copy right was enacted in 2001 but came in use by 2003 then it is found in chapter 130 of Kenyan constitution. The Act protects literary work (poetic work, plays, novels, stories, reports, stage directory, treaties, film sceneries, biographies, letters, histories, charts and tables, computer programs, addresses and sermons, biographies, encyclopedia and dictionaries and memoranda) but does not include written law, artistes work, musical works, sound recording and broadcasting.
Provisions that apply with respect to publication are;
Work shall be taken to have been published if; only copies have been issued in sufficient quantities to meet the demands of the public. In addition where the first part of the work is only published that part shall be treated as a separate work for the purpose of the Act.
The copy right Act prevents any material from being copied without the consent of the owner hence it both protects and restricts maws media. However, the media has some exception where a copyrighted material can be used in public interest when the original copy is not available.
Lastly, ideas and facts cannot be copyrighted by any person because they are too individual.
THE FILMS AND STAGE PLAYS ACT CAP 222(1962)
The Act deals with the charge for controlling the making and exhibitions of cinematograph films, cinemas, theatres and licensing of stage plays.
These are the restrictions on the exhibitions; No any person shall exhibit any film at a cost which the public are distributed unless the person is registered as exhibitor and No distribution of a film or class of films unless the board has examined and issued a certificate.
Subsection (1) any person who exhibits any film shall be guilty of an offence. When a film is made in contravention of the provisions of this section the person responsible for the making the film shall b e guilty of an offence.
The Kenya film classification board shall be responsible to regulate the creation, broadcasting, possession, distribution and exhibition of films, by examining every film and poster submitted under this Act for purposes of classification, imposing age restriction on viewership and giving consumer advice and protection of women and children against sexual exploitation in cinematograph, films and on internet. In conclusion, the Board gives license and issue certificate to distributors and exhibitors of films.
Films unsuitable for children or general exhibition the board should record its ruling like; suitable for adults only and unsuitable for children under age of sixteen or ten years.
THE CHIEF’S AUTHORITY ACT, CAP 128
This Act deals with provision of power and duties of chiefs. The chief is given mandate maintain order in the area of his/ her appointment by exercising the jurisdiction and the power as stipulated in the Act. The chief may appoint someone to assist them in carrying out duties.
The Act also provides penalties for disobeying order by any individual hence they shall be guilty of an offence therefore powers of chief in the prevention of crime in their localities shall be put in consideration.
Powers of chief and assistant to issue order for certain purposes and residing within his jurisdiction are prohibition are prohibition of liquor and drinking bouts, restricting cultivation of noxious plants, prohibiting carrying arms, prohibiting any act that might cause riot, preventing water pollution, regulating cutting of timber and preventing spread of disease for both animals and human beings.
THE POLICE ACT, CAP 84
This Act provides for the organization, functions and discipline of the Kenya police reserve and Kenya police force.
Main function of the police force is to maintain law and order, protect life and property, preservation of peace and enforce all the laws which are charged. The police force is entitled to perform its functions under the supervision and the control of commissioner of police.
No police officer other a reserve police officer shall engage in any business, trade or employment, or take part in any commercial or agricultural undertaking, that is outside the scope of his duties as an officer of the force except with the authority of the commissioner. The police force prevents impediments on the occasions of procession on public roads, streets, assemblies and place of worships.
A police officer may use arms against any person in lawful custody and charged with or convicted of a felony attempting to escape, any person by force who rescues another from lawful custody and any person who by force prevents a lawful arrest of himself.
In conclusion the police force has the power to control and regulate traffics and maintains order in public places. Any police who joins any mutiny shall be guilty for an offence and liable to imprisonment for life.
THE ARMED FORCE ACT, CAP 199
This Act provides for the establishment, government and the discipline of the Kenya Air Force, The Kenya Navy and their reserves, Kenya Army and makes provisions to related personnel and forces.
The Act is charged with defense of the public and support civil power in the maintenance of law of order. The establishment and command of arme