Kenyatta’s unconstitutional stiffling of media freedoms

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http://www.nation.co.ke/news/Youve-gagged-us-journalists-tell-Uhuru-/-/1056/2093478/-/dmrr6cz/-/index.html

  1. The main task of the first government elected after passage of the new Constitution was to simply implement it.This Kenyatta led Jubilee government is doing the exact opposite – dismantling the popularly endorsed Constitution chapter by chapter!
  2. Take the media freedoms guaranteed under the new Constitution for instance. While Article 34 of the Constitution mandates the government to keep off media, Kenyatta is discombobulating it word by word and replacing it with clauses entrenching repression and censorship. The government must have no business determining media content – any self regulation (not by government) should only regard ethics and professional standards!
  3. In a classic con game, Kenyatta recently deceived the public that he was “changing” the draconian electronic media Bill passed by his Jubilee sycophants in parliament when in fact all he has done is dictate a reworded and still repressive (& unconstitutional) bill back to the same Jubilee-controlled parliament. This conmanship exposes plain presidential dictatorship –which Kenyatta expects to be endorsed by his rubber-stamp parliament.
  4. Through an authoritarian power-grab, Kenyatta has arrogated himself (Presidency) the power to punish unfriendly journalists and media houses via a government-controlled tribunal (that he himself appoints). This is not what Kenyans passed in their new Katiba!
  5. Himself a media owner, and through blatant conflict-of-interest, Kenyatta has also proposed to grab the powers to make policy guidelines to the Communications Authority (the replacement of the former Communications Commission of Kenya). This he intends to do via his hand-picked Information and Communications Cabinet Secretary. This proposal will give Kenyatta – a competitor in the broadcast industry – the powers to singularly issue broadcasting licenses and the power to manage use of airwaves. We are essentially allowing the creation of an Imperial Presidency right in front of our eyes – paradoxically under the brand new Constitution!
  6. How Kenyatta proposes to “weed out” his competitors and unfriendly media houses is by simply having the power to control who sits in the Communications Authority board and the new media ngoroko (police) called the Communications and Multimedia Tribunal. If the Star Newspaper, for instance, reports something Kenyatta does not like, he would simply have someone complain to the Kenyatta-appointed board, which then forwards the complaint to Kenyatta’s tribunal, which then mets out punishment to Star’s reporters and the newspaper itself. Fines for individual journalists are in the range of Shs 500,000 while Kenyatta’s competitor media houses are to be fined 20 million shillings per “offense”. It’s as simple as that – plain censorship and authoritarianism.
  7. There is also a serious anti-trust business element by the Kenyatta family. Like its dominance in the milk sector, Kenyatta is aiming to use his position as president to monopolize media over his competitors.
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15 comments on “Kenyatta’s unconstitutional stiffling of media freedoms

    • Duale: Media Bill to go back for debate

      The controversial media Bill limiting press freedom might find its way back to Parliament after six months.

      Majority leader Aden Duale told the media not to panic as the Bill could be brought back for debate next year after the Jubilee lawmakers consult with President Uhuru Kenyatta.

      “The way forward is that the Bill will be looked at afresh after consultations with the President. If the media have issues, let them wait patiently until the Bill is revisited,” he told journalists on Saturday after presiding over a funds drive in aid of Kathunguri Primary School in Kirinyaga County.

      Mr Duale said law making was a process and the Kenya Information and Communications Bill which was endorsed by MPs, sparking protests across the country, could be debated afresh.

      “It can be brought to Parliament as a miscellaneous amendment Bill. There should be no cause for alarm,” he said.

      Cord

      But Mr Duale accused the Cord leaders of politicising the issue after being defeated in Parliament.

      “For media to be responsible there must be strict regulations. Even in the US and UK the penalty imposed on journalists who commit crimes is heavy,” he said.

      Four Members of Parliament, Gachoki Gitari (Kirinyaga Central), Njogu Barua (Gichugu), Kimani Ichung’wa (Kikuyu) and Rachel Shebesh who were in attendance said President Uhuru Kenyatta was popularly elected and should not be tried in the International Criminal Courts (ICC).

      They argued that the President would not be able to serve Kenyans if he attends trial in the ICC.

      “The President has a lot of work to do and should not go to the ICC to face charges of crime against humanity. This case should be dropped unconditionally,” Mr Gitari said.

      Mr Barua said Kenya would be on trial should Mr Kenyatta be tried at the ICC.

      Ms Shebesh who is the Nairobi women representative and Mr Ichung’wa accused Britain of pushing for the trial of the President at the ICC and told it to stop meddling.

      “Britain trains their soldiers in our country and still wants our President jailed.If it continue we can tell its soldiers who are training in Laikipia to leave,” Mr Ichung’wa said.

      http://www.nation.co.ke/news/politics/Duale-Media-Bill-to-go-back-for-debate/-/1064/2104196/-/4tyiby/-/index.html

    • Lucky Kenya, with a president and his deputy committed to recycling

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      Local newspapers on the streets in Nairobi. PHOTO | FILE

      Almost everywhere you turn these days, you will spot the catchy logo with the legend “Reduce, Reuse, Recycle”.

      You can also turn to dozens of organisations and websites that will teach you how reducing, reusing, and recycling can help your community and the environment by saving money, energy, and natural resources.

      Paper, naturally, is one of the materials that is easiest to recycle. It is thrown away more than any other material, making up 30 to 40 per cent of all waste in most countries. In the United States and Europe, some 60 per cent of all paper used is actually recycled.

      From the garbage bin paper is recovered and used to make new paper products, thus realising great savings on the trees annually cut down to make “fresh” paper. There is no telling how much recycling can contribute to saving our forests if we aim at the ratios achieved in the developed world.

      Tissues, cardboard, books, packaging materials, magazines, newspapers, wrappers, and all kinds of paper products can nowadays be made from recycled paper.

      Recycling is the way of the future and in Kenya we are lucky to have a president and deputy president who are champions of the Reduce, Reuse, Recycle philosophy.

      President Uhuru Kenyatta and his deputy, William Ruto, have both recently revealed that even before the recycling mill is called into action, they find their used newspapers ideal for wrapping meat.

      In this age when infernal non-biodegradable plastic is clogging up every nook and cranny, it is indeed gratifying that we have leaders conscious of the need to reuse newspapers as part of the effort to promote environmentally-friendly, cost-effective packaging solutions.

      That is why we in the newspaper industry must ensure that President Kenyatta and Deputy President Ruto will never run out of wrapping paper for their meat, takeaway chicken, and chips aka chips funga, fresh fruits and vegetables, and all other various wrapping needs.

      In fact, the President is so committed to promoting newspapers as wrapping paper that he still subscribes to his daily copies, though, he confesses, he does not read them. His deputy has the chore of reading for him.

      And it is not just buying newspapers purely for their meat-wrapping utility. President Kenyatta’s family, I am unreliably informed, has invested substantially in a media group that counts in its stable a daily newspaper.

      He would, thus, qualify as a member of the Media Owners’ Association even if he finds nothing worth reading in The People, but values the title for its myriad other uses.

      To further keep the newspaper reuse campaign going, I would suggest he borrows a great idea from his bossom-buddy, President Paul Kagame of Rwanda, and push legislation banning plastic wrapping and packaging materials.

      On our part as the Kenyan media, we will continue to churn out tonnes and tonnes of reusable newspapers so that there need never be fear of wrapping paper shortages.

      I understand some blogger-types at State House have been trying to persuade the President that newspapers are going the way of the dinosaur in the digital age.

      Not yet. The fellows are only trying to justify more funds for the muckraking online gutter publications they throw good money at to no avail.
      And in any case, you cannot swat a fly with an iPad. Or wrap meat in it.

      And just one more thing. The President wonders why the Kenyan media is afraid of the fines stipulated in the contested new media laws if it does not intend to commit any offences.

      I also wonder why anybody would be so afraid to face a court of law if confident in his innocence.

      http://www.nation.co.ke/oped/Opinion/Lucky-Kenya–with-a-president-deputy-recycling/-/440808/2105358/-/xkifsu/-/index.html

    • Hi there Einstein

      This narrative that both Uhuru and Ruto have used regarding newspapers, that they are only useful to wrap meat is intriguing

      a) First I think its great in that it achieves what we have always wanted but lacked capacity i.e. coming from these two, they are indirectly telling their supporters to stop buying local newspapers.

      b) Considering that the local media went out of its way to tacitly campaign for and endorse the two through omission and commission, and in fact celebrate the victory of Jubilee over CORD, then this is therefore a strange turn of events where victor turns on one of its stooges

      c) Third, the media is awash with Jubilee stories, from victory, to projects and other similar news. The media reports at least 70% if not more, on what the Jubilee government is doing or intends to. So if reporting this is considered trash, what exactly are we saying?

      d) Fourth and this for me is more disturbing and serious than the previous points, a head of state is a unifying factor. He serves all the people fairly. Prisoners, suspects, law officers, doctors, patients, judges, lawyers, scientists, journalists, ordinary civilians etc. Even if he does not agree with content or presentation etc, as long as they obey the law, he cannot show preferential treatment or bias. To stand on a platform and declare an open “hate” or distaste for any industry or business, goes against the core principle of being a unifying factor. He and his deputy are not fit to lead if they so openly hate certain sectors or communities within the republic. It is in fact these selective discrimination that have had them placed at the ICC for crimes against humanity. They cannot help themselves, once they hate something and will scheme all day and night to get even. THey absolutely lack any form of tolerance

      e) Lastly, if someone (public figure) is doing things right, then obviously the more that is said about it (publicity), the better, however if someone is trying to conceal some mischief from the public, then its obvious that they will be discomfort anytime there is a public spotlight even if its on something else. i.e the guilty are always afraid. The pair have so much to hide, that they do not know when or where it will come from, and therefore prefer to have a gagged media or media on leash so as to control what is published, so that no information leaks that highlights any mischief

  1. I had been looking for the actual text of the memorandum and finally found it here

    http://olivermathenge.wordpress.com/2013/11/28/uhuru-kenyatta-refusal-to-assent-to-the-kenya-information-and-communications-bill/

    UHURU KENYATTA: REFUSAL TO ASSENT TO THE KENYA INFORMATION AND COMMUNICATIONS
    THE CONSTITUTION OF KENYA

    REFUSAL TO ASSENT TO THE KENYA

    INFORMATION AND COMMUNICATIONS

    (AMENDMENT) BILL, 2013

    MEMORANDUM

    By His Excellency Honourable Uhuru Kenyatta, President and Commander-in-Chief of the Kenya Defence Forces.

    Submitted to the Honourable Speaker of the National Assembly.

    WHEREAS a Bill entitled “A Bill for An Act of Parliament to amend the Kenya Information and Communications Act, 1998 and for connected purposes,” the short title of which is “The Kenya Information and Communications (Amendment) Act, 2013”, was passed by the National Assembly on the 31st October, 2013;

    AND WHEREAS the Kenya Information and Communications (Amendment) Bill, 2013, was presented to me for assent, in accordance with the provisions of the Constitution, on the 26th November 2013;

    NOW THEREFORE, in exercise of the powers conferred on me by Article 115 (1) (b) of the Constitution, I refuse to assent to the Kenya Information and Communications (Amendment) Bill, 2013, for the reasons set out hereunder:

    1. CLAUSE 5:

    Clause 5 of the Bill published on the 22nd July, 2013 proposed to insert a new section 5C. The proposal which was not agreed to by the National Assembly read as follows:

    Policy
    Guidelines

    by the Cabinet Secretary.

    5C. (1) The Cabinet Secretary may issue to the Authority, policy guidelines of a general nature relating to the provisions of this Act.
    (2)The guidelines referred to under subsection (1) shall be in writing and shall be published in the Kenya Gazette.

    The provision aimed to clarify the role of the Cabinet Secretary in issuing policy guidelines of a general nature relating to the provisions of the Act in accordance with the provision of paragraph 18 of the Fourth Schedule of the Constitution.

    RECOMMENDATION:

    In view of the foregoing, I recommend that clause 5 be amended by inserting the following new section:

    Policy Guidelines by the the Cabinet Secretary. 5C. (1) The Cabinet Secretary may issue to the Authority, policy guidelines of a general nature relating to the provisions of this Act.
    (2)The guidelines referred to under subsection (1) shall be in writing and shall be published in the Kenya Gazette.

    2. CLAUSE 7:

    (A) PROPOSED SECTION 6B

    Clause 7 of the Bill proposes the insertion of a new section 6B into the Act, which sets out the procedure for the appointment of the members of the Board of the Communications Authority of Kenya. The section provides for the shortlisting of applicants by the Cabinet Secretary, the vetting of the shortlisted applicants by the National Assembly and the subsequent appointment of the chairperson and members of the Board by the President and the Cabinet Secretary respectively.

    The proposed section 6B, as currently worded, maybe construed to be contrary to Article 34 (3) (b) of the Constitution, which provides for a media that is independent of control by government, political and commercial interests. The appointment of the members of the Board by the Executive and the National Assembly exclusively may be seen to erode the independence of the media as envisaged under Article 34 of the Constitution.

    RECOMMENDATION:

    In view of the foregoing, I recommend that the proposed section 6B be deleted and replaced with the following new section:

    Appointment procedures. 6B.(1) Within fourteen days of the occurrence of a vacancy in the office of chairperson or member, the President or the Cabinet Secretary, as the case may be, shall –
    (a) by notice in the Gazette and on the official website of the Ministry, declare a vacancy in the Board, and invite applications from qualified persons; and
    (b) convene a selection panel for the purpose of selecting suitable candidates for appointment as the chairperson or member of the Board.
    (2) The selection panel referred to under subsection (1), shall comprise of persons drawn from the following organizations –
    (a) Media Council of Kenya;
    (b) Kenya Private Sector Alliance;

    (c) Law Society of Kenya;

    (d) Institute of Engineers of Kenya;

    (e) Public Relations Society of Kenya;

    (f) Kenya National Union of Teachers;

    (g) Consumers Federation of Kenya; and

    (h) the Ministry responsible for matters relating to media.

    (3) At their first meeting the panel shall appoint a Chairperson and a Vice-Chairperson who shall be of opposite gender.
    (4) An application in respect of a vacancy declared under subsection (1), shall be forwarded to the selection panel within seven days of the publication of the notice and may be made by –
    (a) any qualified person; or
    (b) any, person, organization or group of persons proposing the nomination of any qualified person.

    (5) The selection panel shall, subject to this section, determine its own procedure and the Cabinet Secretary shall provide it with such facilities and other support as it may require for the discharge of its functions under this section.
    (6) The selection panel shall consider the applications, shortlist and publish the names and qualifications of all the applicants and those shortlisted by the panel in the Gazette and on the official website of the Ministry, within seven days from the expiry of the deadline of receipt of applications under subsection (4).
    (7) The selection panel shall interview the shortlisted applicants within fourteen days from the date of publication of the list of shortlisted applicants under subsection (6).
    (8) Upon carrying out the interviews, the selection panel shall select—
    (a) three persons qualified to be appointed as chairperson; and

    (b) two persons, in relation to each vacancy, qualified to be appointed as members of the Board,

    and shall forward the names to the President or the Cabinet Secretary, as the case may be.

    (9) The President or the Cabinet Secretary, shall within fourteen days of receipt of the names under subsection (8) appoint the chairperson and the members, respectively.
    (10) In selecting, shortlisting and appointing the chairperson and members of the Board, the President and the Cabinet Secretary shall –
    (a) ensure that the appointees to the Board, reflect the interests of all sections of society;
    (b) ensure equal opportunities for persons with disabilities and other marginalised groups; and

    (c) ensure that not more than two thirds of the members are of the same gender.

    (11) Every appointment made under this section shall be published in the Kenya Gazette.
    (B) PROPOSED SECTION 6C (2)

    Clause 7 also introduces a new section 6C into the Act which provides for the appointment of the members of the Board of the Communications Authority of Kenya for a term of three years with the approval of the National Assembly, which may be renewed for one further term. Subsection (2) thereof provides as follows:

    (2) The renewal of the term of office of the chairperson or member of the Board under subsection (1) shall not take effect unless that chairperson or member has been vetted and approved by the National Assembly prior to taking office for another term.

    This requirement of vetting by the National Assembly interferes with the discretionary powers of the appointing authority in renewing the term of appointment of the chairperson or members of the Board of the Authority. In view of the fact that the National Assembly is no longer involved in the appointment process proposed herein, this section is therefore superfluous. The process of subjecting the renewal of the appointment of the members of the Board to Parliamentary approval would also fetter the independence of the Authority in the performance of its functions under the Act.

    RECOMMENDATION:

    In view of the foregoing, I recommend that the proposed section 6C (2) be deleted.

    (C) PROPOSED SECTION 6D (2) AND (3)

    Clause 7 further proposes the introduction of a new section 6D into the Act which provides for the grounds on which the office of the chairperson or member may become vacant and the procedure for removal of the chairperson or member by the National Assembly. Subsections (2) and (3) of that section provide as follows:

    (2) A person desiring the removal of the chairperson or a member of the Board on any ground specified in subsection (1)(c) may present a complaint under oath to the National Assembly setting out the alleged facts constituting that ground.

    (3) The National Assembly shall, within seven days, consider the complaint and if satisfied that it discloses a ground under subsection (1)(c) —

    (a) submit the complaint together with its recommendations to the President in the case of a chairperson; and

    (b) submit the resolution of the National Assembly to the Cabinet Secretary in the case of a member of the Board.

    These subsections may be viewed as impeding the independence conferred by Article 34 of the Constitution on the Authority by vesting the removal of the board members on the National Assembly. Further, the proposed appointment procedure in provided under section 6B hereinabove no longer includes the National Assembly.

    RECOMMENDATION:

    In view of the foregoing, I recommend that the proposed section 6D (2) and (3) be deleted and replaced with the following new provisions:

    (2) A person desiring the removal of a member of the Board of the Authority on the ground specified in subsection 1 (c) may present a complaint under oath to the Cabinet Secretary, setting out the alleged facts constituting that ground.

    (3) The Cabinet Secretary shall consider the complaint and, if satisfied that it discloses a ground under subsection (1) (c), shall send the complaint to the President.

    (4) On considering a complaint under subsection (1) or on receiving a complaint under subsection (3), the President —

    (a) may suspend the chairperson or member pending the outcome of the complaint; and

    (b) shall appoint a tribunal in accordance with subsection (5).

    (5) The tribunal appointed under subsection (4)(b) shall consist of—

    (a) a person who holds or has held office as a Judge of a superior court, who shall be the chairperson;

    (b) at least two persons who are qualified to be appointed as Judges of the High Court; and

    (c) one other member who is qualified to assess the facts in respect of the particular ground for removal.

    (6) The tribunal shall investigate the matter expeditiously, report on the facts and make a recommendation to the President, who shall act in accordance with the recommendation within thirty days.

    2. CLAUSE 17:

    Clause 17 of the Bill proposes to amend section 46I of the Act which sets out the minimum local content of programmes which a broadcaster should broadcast on radio or television. The proposed subsections (3), (4) and (5) of that section provide as follows:

    (3) A broadcaster licensed to distribute radio or television programme services shall ensure that at least forty-five percent of the programmes broadcast on radio or television on any given day comprise local content.

    (4) The programmes containing local content referred to in subsection (3) shall be broadcast between 6 a.m. and 10 p.m. on any given day.

    (5) The provisions of subsections (3) and (4) shall take effect not later than eighteen months from the date of coming into effect of this Act.

    As the entity envisaged under Article 34 the Authority is the institution best placed to regulate content as opposed to statutory prescription by the National Assembly.

    RECOMMENDATION:

    In view of the foregoing, I recommend that the proposed section 46I be amended by deleting subsections (3), (4) and (5) and replacing them with the following new provision:

    (3) A broadcaster licensed to distribute radio or television programme shall broadcast on radio or television such percentage of Kenyan programme as shall be prescribed by the Authority.

    3. CLAUSE 37:

    (A) PROPOSED SECTION 102 (3)

    Clause 37 of the Bill further introduces a new section 102 which provides for the establishment of the Communications and Multimedia Appeals Tribunal. Subsection (3) of that section, which sets out the membership of the selection panel responsible for appointing the members of the Tribunal, provides as follows:

    (3) The selection panel referred to in subsection (2) shall consist of five members drawn from the following organisations—

    (a) the Ministry for the time being responsible for information, communication and technology;

    (b) the Media Council;

    (c) the Telecommunications Service Providers Organisation of Kenya;

    (d) the Courier Industry Association of Kenya; and

    (e) the Authority.

    The membership of the selection panel as set out under the proposed provision is drawn from the media players and the government exclusively. This provision maybe seen as fettering the objective shortlisting and recruitment of members of the Tribunal as it may subject the process to interference by interested stakeholders in the government and media.

    RECOMMENDATION:

    In view of the foregoing, I recommend that the proposed section 102 (3) of the Bill be deleted and replaced with the following:

    (2) The selection panel referred to under subsection (2), shall comprise of persons drawn from the following organizations—

    (a) Media Council of Kenya;

    (b) Kenya Private Sector Alliance;

    (c) Law Society of Kenya;

    (d) Institute of Engineers of Kenya;

    (e) Public Relations Society of Kenya;

    (f) Kenya National Union of Teachers;

    (g) Consumers Federation of Kenya; and

    (h) the Ministry responsible for matters relating to media.

    (B) PROPOSED SECTION 102 (16) (c)

    Clause 37 of the Bill further introduces a new section 102 (16) which provides for the vacation of the office of a member of the Communications and Multimedia Appeals Tribunal. Paragraph (c) of that subsection provides for the removal of a member of the Tribunal by the Cabinet Secretary on the recommendation of a selection panel, where such member fails to discharge his functions whether arising from infirmity of body or mind or from any other cause or for misbehaviour. The selection panel is comprised of representatives of the media and government institutions.

    Subjecting the removal of the members of the Tribunal to a process that is steered by a panel that is comprised of members of the media and government institutions and who would therefore have an interest in the matter may render the process partial or be viewed as lacking in independence.

    RECOMMENDATION:

    In view of the foregoing, I recommend that the proposed section 102 be further amended:

    (i) in subsection (16), by deleting and replacing paragraph (c) with the following new provision:

    (c) if he or she is removed from the membership of the Tribunal by the Cabinet Secretary on the recommendation of a Tribunal set up for that purpose under subsection (17); and

    (ii) by inserting the following new subsections immediately after subsection (16):

    (17) A person desiring the removal of a member of the tribunal on the ground specified in subsection 16 (c) may present a complaint under oath to the Cabinet Secretary, setting out the alleged facts constituting that ground.

    (18) The Cabinet Secretary shall consider the complaint and, if satisfied that it discloses a ground under subsection (16) (c)—

    (a) may suspend the member pending the outcome of the complaint; and

    (b) shall appoint a tribunal in accordance with subsection (20).

    (19) The tribunal appointed under subsection (18) shall consist of —

    (a) a person who holds or has held office as a Judge of a superior court, who shall be the chairperson;

    (b) at least two persons who are qualified to be appointed as Judge of the High Court; and

    (c) one other member who is qualified to assess the facts in respect of the particular ground for removal.

    (20) The tribunal shall investigate the matter expeditiously, report on the facts and make a recommendation to the Cabinet Secretary, who shall act in accordance with the recommendation within thirty days.

    (C) PROPOSED SECTION 102A

    Clause 37 of the Bill also proposes the introduction of a new section 102A into the Act which provides for the complaints which the Tribunal may receive. Subsection (1) of that section provides as follows:

    Complaints. 102A. (l) A person aggrieved by —

    (a) any publication by or conduct of a journalist or media enterprise; or

    (b) anything done against a journalist or media enterprise that limits or interferes with the constitutional freedom of expression of such journalist or media enterprise,

    may make a written complaint to the Tribunal setting out the grounds for the complaint, nature of the injury or damage suffered and the remedy sought.

    The jurisdiction of the Tribunal is confined to complaints relating to the media enterprises and journalists. It does not deal with any matters relating to telecommunications, courier or postal services, information, communication and technology and other matters which fall within the ambit of the Act.

    RECOMMENDATION:

    In view of the foregoing, I recommend that the proposed section 102A (1) be amended by inserting the following new paragraph immediately after paragraph (b):

    (c) any action taken, any omission made or any decision made by any person under this Act,

    (D) PROPOSED SECTION 102E

    Clause 37 of the Bill further introduces a new section 102E which provides for the decisions that the tribunal may make. Subsection (1) (f) thereof contains penal consequences, including a fine of not more than twenty million shillings, that can be meted by the Tribunal including those relating to breach of code of conduct.

    The code of conduct deals with ethical issues and matters relating to misconduct in relation to media practitioners and may not, therefore, require penal consequences. Such matters are best dealt with in a disciplinary or other similar processes. A cardinal principle of justice in criminal law is that a person should be penalised for offences whose particulars can be established with specifity and clarity. The code of conduct may not meet this threshold so as to attract penal consequences. Further the ceiling of one million shillings for individual journalist may be onerous.

    RECOMMENDATION:

    In view of the foregoing, I recommend that the proposed subsection (1) (f) of section 102E in be amended to read as follows:

    (f) impose a fine of not more than twenty million shillings on any respondent media enterprise and a fine of not more than five hundred thousand shillings on any journalist adjudged to have violated this Act.

    4. CLAUSE 39

    Clause 39 of the Bill proposes to amend section 102A of the Act (now renumbered as 102K) which provides for the establishment of the Universal Service Advisory Council. The clause introduces subsections (6) to (15) which set out the procedure for the appointment of the members of the Universal Service Advisory Council. They provide for the shortlisting of the applicants by the Cabinet Secretary and the vetting of the shortlisted applicants by the National Assembly and the subsequent appointment of the chairperson and members of the Council by the Cabinet Secretary.

    The appointment of members of the Universal Service Advisory Council ought not require the involvement of the National Assembly.

    RECOMMENDATION:

    In view of the foregoing, I recommend that the proposed subsections (6) to (15) be deleted and replaced with the following new subsections:

    (6) The Council shall consist of a chairperson and eight other members appointed by the Cabinet Secretary in accordance with this section.

    (7) Within fourteen days of the occurrence of a vacancy in the office of chairperson or member, the Public Service Commission, shall by notice in the Gazette and on the official website of the Public Service Commission, declare vacancies in the Council, and invite applications from qualified persons.

    (8) An application in respect of a vacancy declared under subsection (7), shall be forwarded to the Public Service Commission within seven days of the publication of the notice and may be made by –

    (a) any qualified person; or

    (b) any, person, organization or group of persons proposing the nomination of any qualified person.

    (9) The Public Service Commission shall consider the applications, shortlist and publish the names and qualifications of all the applicants and shortlisted applicants in the Gazette and on the official website of the Commission, within seven days from the expiry of the deadline of receipt of applications under subsection (8).

    (10) The Public Service Commission shall interview the shortlisted applicants within fourteen days from the date of publication of the list of shortlisted applicants under subsection (9).

    (11) Upon carrying out the interviews, the Public Service Commission shall select three persons qualified to be appointed as chairperson and sixteen persons qualified to be appointed as members of the Council, and shall forward the names to the Cabinet Secretary.

    (12) The Cabinet Secretary, shall within fourteen days of receipt of the names under subsection (11) appoint the chairperson and the members of the Council, respectively.

    (13) In selecting, short listing and appointing the chairperson and members of the Council, the Cabinet Secretary shall-

    (a) ensure that the appointees to the Council, reflect the interests of all sections of the society;

    (b) ensure equal opportunities for persons with disabilities and other marginalised groups; and

    (c) ensure that not more than two thirds of the members are of the same gender.

    (14) Every appointment made under this section shall be published in the Kenya Gazette.

    5. CLAUSE 41

    Clause 41 of the Bill provides for transitional provisions. Paragraph (b) and (c) of that clause saves the unexpired term of the members of the former commission and council Clause 41 provides as follows—

    41.(1) On the commencement of this Act-

    (a) any person who was an employee of the former Commission immediately before the commencement of this Act shall be deemed to be an employee of the Authority on the same terms and conditions of service;

    (b) a person who was a member of the Board of Directors of the former Commission shall be deemed to be a member of the Board of the Authority for the unexpired term of that person;

    (c) a person who was a member of the Universal Service Advisory Council shall remain a member of the Council for the unexpired term of that person.

    (d) all property, assets, rights, liabilities, obligations, agreements licences and other arrangements existing at the commencement of this Act and vested in, acquired, incurred or entered into by or on behalf of the former Commission, shall, be deemed to have vested in or to have been acquired, incurred or entered into by or on behalf of the Authority to the same extent as they were enforceable by or against the former Commission before the commencement of the Act;

    (e) where the transfer of any property transferred to or vested in the Authority under subsection (1) is required by any written law to be registered, the Authority shall, within six months from the date of commencement of this Act and amendments thereto or within such other period as any relevant law may prescribe, apply to the appropriate registering authority for the registration of the transfer and thereupon the registering authority shall, at no cost to the Authority or any person by way of registration fees, stamp or other duties—

    (i) make such entries in the appropriate register as shall give effect to the transfer;

    (ii) where appropriate, issue to the Authority a certificate of title or other statutory evidence of ownership of the property or make such amendments on such certificates or in the appropriate register as may be necessary; and

    (iii) make any necessary endorsements on such deeds or other documents as may be presented to such registering authority relating to the title, right or obligation concerned.

    The body envisaged under Article 34(5) of the Constitution is required to be in place within three years after the effective date. The Former Commission has been restructured and its membership reconstituted in order to comply with the provisions of Article 34(5) of the Constitution which requires the body to be independent of control by government, political or commercial interests and to reflect the interests of all sections of the society. Therefore saving the unexpired term of the members of the former Commission and the members of the former Council will fetter the implementation of Article 34(5) of the Constitution. The proposed amendment also does not provide for the transitional provisions for the Appeals Tribunal which has been repealed and replaced with the Communications and Multimedia Appeals Tribunal.

    RECOMMENDATION:

    In view of the foregoing, I recommend that the clause 41 be amended as follows—

    41. (1) A person who was a member of the board of the former body shall continue to hold office for a period not exceeding ninety days or until the appointment of the members of the Authority or Tribunal, whichever comes first.

    (2) On the commencement of this Act-

    (a) any person who was an employee of the former body immediately before the commencement of this Act shall be deemed to be an employee of the Authority or Tribunal on the same terms and conditions of service;

    (b) all property, assets, rights, liabilities, obligations, agreements licences and other arrangements existing at the commencement of this Act and vested in, acquired, incurred or entered into by or on behalf of the former body, shall, be deemed to have vested in or to have been acquired, incurred or entered into by or on behalf of the Authority or Tribunal to the same extent as they were enforceable by or against the former body before the commencement of the Act;

    (c) where the transfer of any property transferred to or vested in the Authority or the Tribunal under subsection (1) is required by any written law to be registered, the Authority or the Tribunal shall, within six months from the date of commencement of this Act and amendments thereto or within such other period as any relevant law may prescribe, apply to the appropriate registering authority for the registration of the transfer and thereupon the registering authority shall, at no cost to the Authority or the Tribunal or any person by way of registration fees, stamp or other duties—

    (i) make such entries in the appropriate register as shall give effect to the transfer;

    (ii) where appropriate, issue to the Authority or the Tribunal a certificate of title or other statutory evidence of ownership of the property or make such amendments on such certificates or in the appropriate register as may be necessary; and

    (iii) make any necessary endorsements on such deeds or other documents as may be presented to such registering authority relating to the title, right or obligation concerned.

    (3) In this section —

    “former body” means the Commission and the Appeals Tribunal.

    Dated the ………………………..…………., 2013.

    UHURU KENYATTA,

    President.

    • From the foregoing its clear that the choice of amendment will be between a rock and a hard place, whichever bill parliament passes whether its Uhuru’s or the parliament draft, its a question of whether parliament or executive control the media.

      Serves media right since what they did with the freedom that Kenyans fought so hard for, was to prostitute that freedom to the executive and that roundly gets them to where we are now.

      Not forgetting that they can, and have been kicked out of or let in to parliamentary sessions at the whims of the current speaker.

  2. Job,

    It has been a long time since I commented on this forum. Although I have next to no respect to most of the local media, I will still stand for their rights. If there is a single institution that failed Kenya on the elections, it is the local media. As Clay Muganda recently said in an interview, the media was “in bed” with the powers that be. Just look at their behaviour during the media breakfast, other than John Allan Namu, no one was willing to ask the hard questions. They were instead campaigning (without much subtlety) for state jobs!

    Let us take the latest case. The ICC fiasco. I said that they were busy spinning falsehoods on the strength of the Kenyan case and wondered how they are going to “un spin” their garbage when the case gets thrown out of the UNSC. Well, they said nothing. Fast forward to the Assembly of State Parties. All the major papers without exception claimed the amendment of Article 134 as a Kenyan victory or an AU victory with some going to the extent of claiming that it was Kenya (or the AU) that moved the amendment. First the AU didn’t move anything and Kenya’s amendments weren’t the ones that were passed. The motion to amend article 134 was moved by Greece & Guatemala, both countries were critical of Kenya’s moves to support presidential immunity. Anyway, right now they are feeding the country the truth in drops. Some housed are now acknowledging that it was neither Kenya nor the AU moved the amendments, others have gone the extra step to explain that the victory was a hollow one but this new info is coming tucked in some obscure sections of the paper. When they were announcing the victory we had triumphant headlines. As things stand, most Kenyans are of the opinion that the victory is presidential immunity dressed in another cloak.

    What the president is trying to do is to re-create the 80s and early to mid 90s when all that people heard was the government mouthpieces. When the media was liberalised, it was largely in Nairobi, most people would simply get the official government position and that was all. As we came to see at that time, whoever controls the media will inevitably control public sentiment. The media in Nairobi was vibrant and we had the correct information, Kanu didn’t have a single MP in Nairobi. What was happening in the rural areas? As late as 2002 we were seeing footage from the grassroots of people saying that they didn’t know a single candidate and that they will ask the chiefs for help in identifying suitable candidates. The same tactics may not have been employed this time round but the aim is the same, to control public sentiment.

    The CCK issued a strange directive last week. That all Kenyan websites should be hosted in Kenya. That is despite the CCK’s own website being hosted in Philadelphia! The excuse they gave was that it will help them combat cyber crime. They were assuming that the Kenyan IT fraternity is made up of complete morons to buy that explanation. The issues with hosting of sites in Kenya revolve around quality of service & the expense involved. What the CCK didn’t say is that when the web servers are in Kenya then it becomes very easy to turn off an offending website, which is what they are trying to do and will not succeed at. All I can see is that there is nothing that the government doesn’t want to control. There may be a glimmer of hope though, URP MPs have started questioning the inflated cost of building the new railway. Building 1 KM is $2 million by international standards, for the Kenyan railway, it is going to cost $ 6 million per KM. I hope CORD will not squander this opportunity.

  3. Dismantling institutions that put Jubilee into power makes perfect sense when all that matters is retaining all state controls and functions for the foreseeable future
    Or to achieve the primary goal of avoiding any ICC judicial action…ever.
    Jubilee has never been about entrenching any of the 2010 constitutional reforms
    nor building state instructions of governance that are independent of transient
    personalities or even political parties. It’s just about power for the few; the ICC merely provides a convenient cover to camouflage the reality that the more things
    change in Kenya the more they stay the same…at least for an out of touch elite and
    self-serving foreigners.
    March 4 , 2013 General Elections: One person, one vote, one time! So much for
    the new constitutional dispensation.


  4. The timing of these unconstitutional edicts (dismantling the brand new Constitution) coming in multiple fronts –media, Nyumba Kumi (civil rights and police/security), judiciary (JSC suspension), and land (emasculation of the National Land Commission by Kenyatta/Ngilu) — are all happening while the nation’s eyes are firmly glued on the ICC fiasco.

    • This government is well on the way to becoming a major disaster. Domestically, Kenya seems to be regressing to the past but doing it in a way that can be called stealthy since the crude, outright repression of the past has been replaced by a newer form. At the international level, there is no foreign policy as such. The only thing the relevant minister seems concerned with is ICC.

      The Salary Commission gives huge raises to MCAs while at the very same time the government plans to lay off civil servants and keeps complaining on the high public wage bill. The TJRC report is long forgotten. Westgate is also forgotten. Crime is on the rise, with increasing involvement by the police. Preventable road deaths continue. A real mess that may not get better soon.

    • Job/John

      Am equally surprised at the strange turn or twist of events. Uhuru is systematically dismantling the very institutions that helped propel him into power. The media has belatedly learnt that contrary to what they believed, Uhuru did not assent to the media bill but instead ammended it to an even more draconian edict. Talk about “ahsante ya punda ni mateke”. Ditto the Judiciary which rubber stamped his election in a well choreographed script starring Ahmednassir and his puppets, the CJ and SCOK

      The amazing thing in the case of JSC as well as IEBC, even though the court cases or investigations are yet to be completed, the officers are removed or suspended from office while the due process is followed ostensibly due to chapter 6. This chapter 6 however maintains a loud silence over the president and his deputy who face charges far much worse. What a charade/sham

      Its pretty evident as John states above, the jubilee regime is basically hostage by MPs and MCAs adn are therefore bending over backwards to accommodate their demands, but at the expense and to the detriment of civil service and other public institutions. Doctors issues are yet to be resolved, teachers, police reforms etc.

      I hope we hear from Adongo soon who last I heard is on the ground attending to past atrocities.

      The country is going to the dogs

      • einstein,

        I am back in Toronto since yesterday, Dec 17, 2013. My battle in court was fine. I had a chance to present my case to the court and everything went well. Now my lawyer Mr. Juma with Rachier and Amolo Advocates will make final written submissions on January 22, 2013 and the verdict will be delivered within a month or so. When the time comes I will review the whole story as it happened.

        In terms of stuff on the ground there are a lot of things to talk about. I will just point out a few things.

        1. Nobody seems to know what the damn government is doing. Uhuru has the government in his pocket and Ruto seems to be sniffing around to find out where it is. Word out is that Ruto was given big money by Ngina and co and he has been told he was bought and paid and that is all there is to it.

        2. Uhuru’s cabinet is primarily a bunch of clueless individuals most of them with personal ties to the ICC boys. For example the big flop messing with devolution has got some stuff going with Uhuru which I am hesitant to talk about.

        3. The attempt to suffocate the media is going to flop because ultimately it will end up in the courts and the bumbling sycophants in parliament just went too far. There is a science to dictatorship in this day and age. You just can’t screw things too much. This could end up ih the Supreme Court and Uhuru will not get his wish this time.

        4. The strike by the medics is a clear indicator that things are headed down big time. My young nephew a pharmacist by training who runs the show in one of the districts told me wnen the strike started that they are in this battle for the long haul. The bullies running the counties have no idea what is going on. Their useless statements of intimidation are making things worse. The problem is that the devolution process is stillborn. The health secretary working with the devolution secretary and the TA should by now have prepared detailed legislation on how health services will be devolved and who will be responsible for what. You cannnot run health services like running a nyama choma kiosk. It is a very complex business.

        The constitution says health services will be run by the counties and provides no specifics on how that is to be done. If we had a sensible government they would have started by taking full stock of all health facilities and resources in the country and in each county. Determine all the health service providers and how much money they are being paid. Where for example is the the health budget. You cannot just ask counties to pay doctors and medics without a detailed budget to go with that. Where is the overall health policy.

        Let me give an example here in Canada. All health services are provided by the provinces but they are all governed by the Canadian Health Act which stipulates that the federal government allocates a specific amount of money to the provinces to pay for medical services. Under the Canadian Health Act no penny allocated to finance health services can be used by the provinces for any other purpose. The feds also set up the national standards to ensure that all the provinces provide same good services to all Canadians. Uhuru’s Jubilee nutcases want to just dump health services to the counties and wash their hands off it. Guess what, citizens pay taxes to the national government and that is where the money for medical services come from.

        It is funny listening to the governors talking nonsense about firing doctors and getting others. It is rubbish. There are about 3,300 doctors in public hospitals and clinics in the whole country. We need 40,000. Where the hell are the governors going to get doctors and pharmacists from. Somalia or China.

        If this matter is not addressed smartly we will soon see an exodus of Kenyan doctors to places like South Africa, Botswana, Lesotho etc. It happened before when the doctors got sick of Moi’s foolishness. Kenyan doctors are well trained and respected. They have choices and if needs be they will take their chances outside the country.

        There is also a very high chance that many doctors will resign and go into private practise. This thing needs real and serious leadership and there is none in the country to speak of.

        http://www.nation.co.ke/news/Public-health-crisis-looms-as-doctors-quit-over-devolution-/-/1056/2086088/-/67e2qvz/-/index.html

        5.Down in my neighbourhood things are not so bad. Siaya folks are willing to give Rasanga a chance. The joke is that Rasanga calls Oburu everyday he wakes up. Those Siaya folks do not like Oburu at all even though he is said to have done some good things as an M.P. Siaya has progressed a great deal. There is electricity just about everywhere. It is at everybody’s door step. You just need a few poles to link it to your house. Pretty much most of the schools are connected. Water system is getting reworked everywhere with African Development Bank money.

        For once a sewage system is under way financed by the UN. It is great for a place like Bondo town which has a booming construction business going on. Bondo University is a beauty with 3,000 student capacity as of right now. My buddy Prof. Asembo who is the DVC in charge of Finance and Admin is doing a wonderful job.

        The myth that Siaya folks are wallowing in mass poverty and misery is fictional rubbish. There are problems like everywhere else but folks are busy working like horses and they are on to something. Watch this space. Those with money to invest should look at places like Bondo and Kisumu to put their money in. Forget the mad real estate in Nairobi. The PEV mayhem seems to have convinced many Nairobians and others from back in places like Bondo to invets their money in their neighbourhoods. Things are kicking.

        Just a footnote about Nairobi. I spent quite some time in Gachie township just at the end Peponi road. Gachie is in Kiambu county and some people I know bought land there sometimes back and built their homes there near the township. Gachie is pretty much 30 minutes from Westlands and it has the potential for some serious real estate investment. It is amazing how few people have picked this up yet. The Kabogo guy is a real joke.

      • adongo

        thanks for the update – good to hear your court case is coming along just fine. appreciate the sacrifices that you guys made to push kenya along the path of more freedoms, freedoms and struggles which have now been hijacked by the very homeguards and their scions but i guess that is life.

        one item that stands out from your post above is that you say kenyans are largely aware that Ruto was bought by the Kenyatta outfit and is fully paid for. and must therefore remain the sidekick until otherwise released from bondage.

        poor Ruto. I wonder, was he bought for 10 years, 5 years or forever? can he make comeback or is he forever bound to the Kenyatta’s? when will his dumb RV flock discover that the man is a political cripple and has no agenda of his own? will he spin the Moi story of lying in the shadows waiting to pounce when finally he is released from bondage?

        interestingly enough its the younger and not bound by some Omerta code MPs from RV who are lighting the flame under his chair, such as Alfred Keter. Lets wait and see how that pans out.

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