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Cablegate: Protests Over Restrictive Media Bill

DE RUEHNR #2850/01 3541301
O 191301Z DEC 08




E.O. 12958: N/A

Ref: 06 NAIROBI 973


1. Parliament passed a Media Bill on December 10 which, if
signed by President Mwai Kibaki, would potentially subject the
independent media to intrusive government interference. The
Media Bill was presented to Parliament and the public as a
series of amendments to the Communications Act of 1998.
However, the Media Bill is nearly a complete re-write of the
Communications Act, which provides the framework for media
regulation. Problematically, one section of the original act
the Media Bill does not override is a provision granting the
Minister of Internal Security and Provincial Administration
extensive powers to enter media outlets at will and to seize
equipment and/or close such outlets if he determines it
constitutes, "a threat to security and tranquility," terms
which are not defined. The Media Bill would make a new
Communications Commission of Kenya (CCK) the sole regulator of
all information technology and media, and give it the power to
set standards for the manner, time and type of programs to be
broadcast by media. It also gives the CCK the ability to levy
steep fines against broadcasters who violate these putative
standards. The Media Bill allows for extensive political
influence over the CCK by granting the Minister of Information
and Communications the power to appoint CCK commissioners and
to issue binding policy instructions to the CCK.

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2. Media owners and journalists have waged an all-out,
coordinated media blitz against the Media Bill and have made
direct appeals to the President and Prime Minister (PM) to
reject the law. Journalists held peaceful public
demonstrations in Nairobi and other cities on December 12 to
coincide with the Jamhuri (Independence) Day celebrations.
Police arrested several journalists, who were released later
that day without charge. Civil society groups have also
condemned the Media Bill. The Ambassador issued a statement
on December 13 voicing concern that the Media Bill threatens
Kenya's hard-won press freedom and raises questions about the
coalition government's commitment to fundamental reforms (See
text para. 12). Journalists continued to protest and police
again arrested journalists on December 15 as they protested at
Parliament. Reacting to increasing public condemnation of the
Media Bill, several cabinet ministers, including the PM, have
denounced the Media Bill and demanded that it be amended. The
President must now decide whether to sign the bill into law or
whether to reject the Media Bill and return it to Parliament
for revision. The Ambassador sent a note to the President
calling attention to the problematic nature of some provisions
in the Bill and describing how other democratic countries,
like the U.S., regulate the media. End Summary.

The Media Bill

3. The Kenya Communications Amendment Bill (commonly known as
the Media Bill) is a revival of an earlier Media Bill which
lapsed when the Ninth Parliament failed to pass it before
being dismissed in October 2007. The ostensible goal of the
Media Bill is to amend the Kenya Communications Act of 1998.
However, critics contend that the Media Bill is a nearly
complete rewrite of the previous legislation with just a few
key provisions left intact, which is what has spurred the
media/public reaction. When the Grand Coalition Government
was formed in April 2008, the new Minister for Information and
Communications, Samuel Poghisio, consulted with owners of
major media houses of Kenya to draft a new bill that would
incorporate the concerns of both government and media. During
this process, media owners believed that the Media Bill would
repeal Section 88 of the 1998 legislation, which grants the
Minister of Internal Security and Provincial Administration
(the Minister of Internal Security) extensive powers to enter
media outlets at will and to seize equipment and close such
outlets if s/he determines it poses, "a threat to security and
tranquility," terms which are not defined. However, the new
version published in July 2008 did not repeal Section 88. It
also gave the Minister of Information and Communications (the
Minister of Information) the ability to exert political
influence over the media.

Government Interference Allowed

NAIROBI 00002850 002 OF 004


4. The Media Bill retains or creates provisions that will
permit extensive government interference with freedom of the
media. By maintaining Section 88 powers to raid media
outlets, the Minister of Internal Security can perpetrate
raids like that made on the Standard newspaper in 2006
(Reftel). The Media Bill would also establish a new
Communications Commission of Kenya (CCK) as the licenser of
information technology service providers and media outlets.
The CCK would be empowered to prescribe standards related to
time, type, and mode of programs to be aired. It would also
mediate disputes arising from implementation of the Media Bill
and would be empowered to impose steep fines for violations
with no requirement that the fines be proportionate to the
nature of the infraction. Such an expansive role for the CCK
would not necessarily be problematic if it were an independent
body, insulated from economic and political pressures.
However, the Media Bill directly subjects the CCK to political
influence by allowing the Minister of Information to appoint
the CCK commissioners and to issue binding policy directives
to the body. Some critics complain that the Media Bill makes
no mention of, and so effectively abolishes, the recently-
established Media Council, composed of media owners and
practitioners, which was aimed at providing for media self-

No Sense of Irony - and Maybe History

5. Kenya's media has become increasingly free since 2002,
when the then-newly elected President Kibaki loosened the
severe media restrictions of the government of former
President Daniel arap Moi. Broadcast media has expanded
exponentially since then: from one and a half TV stations (the
state-owned Kenya Broadcasting Corporation (KBC) and the semi-
independent Kenya Television Network, which only reached
Nairobi viewers) and one government radio station to half a
dozen TV channels and countless FM radio stations blanketing
the country in English and vernacular programming. As media
has expanded, so has its political strength. Media has at
times been used by local and national politicians to enhance
their own images with their constituents in their bids for
elective office, particularly in the 2007 general elections.
Politicians, having won their seats in Parliament and the
Cabinet, now resent the power of the media to run negative
stories on them. Enjoying greater independence, the media has
exposed, for example, excessive foreign travel of Members of
Parliament (MPs), personal scandals related to MPs, and other
political shenanigans. The media's recent campaign to
publicize MPs' refusal to pay taxes on their approximately USD
10,000 monthly allowances - at a time when ordinary Kenyans
have been hit by spiraling food costs - have resonated with
the public and caused resentment among many MPs, who now feel
that they need to bring the media to heel. This created the
atmosphere in which the Media Bill was passed.

Parliament Adopts the Media Bill

6. Media owners recognized the threat the Media Bill posed
to their hard-won freedom and unsuccessfully mounted a
campaign to undo the sections they had previously objected to
before the Media Bill was presented to Parliament. However,
despite protests by Kenyans both in and outside the media, the
Media Bill was passed by Parliament on December 10. Out of a
sitting parliament of 222 members, only 25 MPs voted for the
Bill and three against, which is less than the required quorum
that 30 MPs be present for a vote. Procedurally, if no one
alerts the Speaker to a lack of quorum, Parliament can
continue debate and take votes, which in this case it did.
Ironically, many MPs not present at the vote have since
criticized some provisions of the Bill as unconstitutional.
They have subsequently been criticized by the public for
failing to do their jobs appropriately.

Next Steps

7. The Media Bill is now with the Office of Attorney General
for fine tuning, after which it will be sent to the President,
who must sign it into Law within 21 days of receipt, or send

NAIROBI 00002850 003 OF 004

it back to Parliament with a memorandum explaining his
objections. Parliament may then either revise the Bill in
line with the President's objections or it may override the
President's objections with the approval of 65 percent of the
222 MPs.

Media Protests: Journalists Arrested

8. When the Media Bill was passed despite the courting of MPs
and Cabinet members by media owners, the print and electronic
media pursued a coordinated public campaign to paint it as
draconian and a clear attack not only on the independence of
the press but on the freedom of speech. From December 11 to
date all media outlets except the state-run KBC carried
extensive news reports and commentary against the Media Bill,
and they have called on the President to reject it.

9. Journalists have also organized public protests. For
example, on December 12 - Jamhuri Day - which celebrates
Kenya's independence, media personalities from radio and
television went to Nyayo Stadium where the President and many
VIPs were commemorating the holiday. Several wore tee-shirts
that read "No Taxes for MPS; No Taxes for Us," and were
promptly arrested for unlawful assembly before they could
enter the stadium, others carried placards and one wearing a
prison uniform carried a petition for the President. All were
carted away, some violently. All save two civil liberties
activists were released that evening without charge (see
septel). (Note: These protests coincided with civil society
protests over spiraling food prices and the refusal of MPs to
pay tax on their allowances. These demonstrations were in
parallel but not related to the media efforts. End Note.)

10. Following the events on Jamhuri Day, the Media Owners
Association coordinated programming on all channels to raise
public awareness of the issue. Media owners also on December
15 met with the PM, who supported their demands that the
President not sign the Media Bill. Martha Karua, the Minister
of Justice, National Cohesion, and Constitutional Affairs,
also announced that her office was reworking the clauses of
the Media Bill to delete the negative references, an unusual
move by the Minister of Justice which appears to have a
political, not a legal, basis. Meanwhile a small group of
journalists who paraded near Parliament on December 15 were
arrested. They were released after being charged with
unlawful assembly.

Mission Efforts

11. The Mission has been working to make clear our concerns
about the negative provisions of the bill. We have been in
close contact with senior government officials, including the
Minister of Foreign Affairs, Minister of Information, and
Prime Minister. The Ambassador also sent a note to the
President touching on these concerns and providing information
about how other democratic countries, particularly the U.S.,
handle regulation of the media. On December 13 the Ambassador
joined his German colleague with the media to discuss the
bill. The Ambassador has met with the media owners to hear
their concerns. While indicating that we share concerns, he
also made clear that the media must also act responsibility
and avoid the temptation to depict this as a "crisis." Should
the President sign the bill, there will be opportunities in
Parliament to amend it subsequently. It is also important to
put the current situation in context. While we need to
address the problems in the media bill, the heated debate
regarding the media bill comes at a time when the coalition
government's reform agenda is moving forward in a positive

12. On December 13, the Ambassador issued the following
statement regarding the Media Bill and government reaction to
peaceful protests. Begin text:

The United States is very concerned about recent actions which
potentially threaten freedom of the media in Kenya. The
partnership between the United States and Kenya is based on
shared democratic values. Freedom of the media is central to
those values and the maintenance of a strong democracy.

NAIROBI 00002850 004 OF 004

Specifically, the United States is concerned that the Media
Bill passed by Parliament gives excessive power to the
government over the media. As passed, the Media Bill, among
other provisions, gives the government authority to close down
and dismantle media outlets by declaring a state of emergency
or by citing security concerns. It will also give the
Minister of Information undue influence over media content
through the government-appointed Communications Commission.

The passage of the Media Bill runs counter to the coalition
government's commitment to carry out fundamental reforms in
order to strengthen democratic institutions and to promote the
well-being of all Kenyans. Unrestricted access of the public
to information provided by professional and independent media
is vital to the successful functioning of the democratic
process. It is, therefore, understandable that Kenyans across
political, social, and ethnic lines are demonstrating their
democratic spirit by speaking out to voice concerns about the
Media Bill.

We are encouraged by the commitment shown by President Kibaki
and Prime Minister Odinga, the leaders of the coalition
government, to carry out the reform agenda. As the
representatives of the Kenyan people, Parliament must play a
responsible role to help implement the reform agenda. The
Media Bill runs counter to that agenda. As drafted, it is a
step backwards, and not a step towards the brighter future
that Kenyans want their leaders to pursue.
End Text.


13. There are legitimate concerns that the mushrooming
vernacular FM stations, with their often lax editorial
policies, can incite public violence -- as happened in the
run-up to, and the aftermath of, the December 2007 election --
potentially threatening national security. The Media Bill as
passed, however, overreaches by retaining the Minister of
Internal Security's unbridled power to raid media outlets and
by granting the Minister of Information the ability to exert
political influence over a nominally independent CCK.

14. (Cont'd) Media owners and journalists are unlikely to
desist from their efforts to fight the Media Bill, and their
efforts appear to be making some headway among the public.
Civil society groups have adopted the media's cause and have
included it in their parallel protests over high food prices
and the MPs' refusal to pay taxes. Civil society efforts
appear to have made headway among the political class; besides
the PM and Martha Karua, several ministers and MPs have called
for the Media Bill to be reworked to remove the offending
clauses. However, a number of MPs and the leadership of
Ministry of Information are equally adamant that the Media
Bill be implemented as passed. The hard decision now falls on
President Kibaki. We will continue to follow the issue
closely and weigh in at the highest levels of government as
necessary to support Kenya's hard-won press freedom. End


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