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BACKGROUND PAPER FOR THE WINDHOEK II CONFERENCE THE CASE OF

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BACKGROUND PAPER FOR THE WINDHOEK II CONFERENCE THE CASE OF Powered By Docstoc
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The Windhoek Seminar: “Ten years on: Assessment, Challenges and Prospects” Windhoek, Namibia May 3-5, 2001

EASTERN AFRICA REGIONAL PERSPECTIVES Background paper prepared by Dr. Lewis O. Odhiambo, School of Journalism, University of Nairobi, Kenya

INTRODUCTION The processes and experiences in political liberalisation in Eastern African countries during the 1990s have not been the same in every country. In Kenya, multi-party politics came rather painfully, having been accompanied by violent inter-ethnic conflicts and massive loss of lives in some districts of the Rift Valley Province in the wake of the general elections of 1992 and in parts of the Coast Province in the wake of the 1997 general elections. Nevertheless, both internal and external pressures from human rights groups, politicians, journalists, the donor community and the diplomatic community have prevailed on Kenyan authorities to accept change. In the end, Kenyan leaders have embraced broad principles and practices of liberal democratic governance, even if rather shakily. Tanzania, on the other hand went through political reforms fairly peacefully, having had its constitutional reforms that ushered in multi-party politics in the early 1990s without a hitch. Uganda still practices no-party politics, but presidential elections have been held once in the mid-1990s and are being held again this March, 2001. Thus, democratic governance in Uganda has not been institutionalised; rather it depends entirely on the personality of the head of state. No doubt the mass media have played their role in the process of political liberalization as Windhoek I envisaged they should. In fact, there has been a recursive relationship between media and the political process, with the media influencing the pace of political change and political liberalization, in turn, facilitating media growth, pluralism and relative independence. This is as it should be, as the key pillar of the declarations of Windhoek I was that the maintenance and fostering of an independent, pluralistic and free press was an essential component of the development and maintenance of democracy. Indeed, Eastern African countries have made great efforts to liberalise the mass media sector in tandem with the prevailing spirit of pluralistic politics. This report outlines some of the efforts that

2 were made in Kenya, Tanzania mainland, Zanzibar and Uganda in the 1990s. But the report also identifies obstacles to the full realization of media pluralism and freedom. It demonstrates how legislation alone, though an important first step in media growth, cannot ensure smooth operation of the media sector. Political pressures, judicial inclination toward the enforcement of administrative law rather than encouragement of individual liberties, underdevelopment of the media sector, intrigues among the politically powerful, and the state of the economy are all interlinked in determining the state of journalism and media sector in a country. This report identifies and analyses weaknesses in the constitutional provisions of each country with regard to their protection of fundamental human rights of which freedom of the media is one. It reviews case law to bring out the plight of journalists and their media organizations as they interact with politics and politicians as well as an entrenched administratively inclined judicial system. Other statutory threats to media freedom are identified and analysed in so far as they place journalists and the media in difficult circumstances in the process of carrying out their work. The study also looks at the state of the economy in each country as a background to understanding other constraints to media development and consumption, the status of information technology and prospects for their expansion in the sub-region and, finally, the status of journalists in terms of their opportunities for training and freedom to join voluntary professional and trade associations. The report is divided into four sections. Section A looks at constitutional, legal, political and social obstacles to media freedom; section B discusses the economic climate and how the state of the economy of each country has impacted the structure of ownership and constricted the space for media expansion; section C looks at information technologies that are available in the region and their prospects for further diffusion; and section D reviews the status of journalists in each country and their professional or trade organizations. The final section presents brief conclusions and lessons that may be learnt from the experiences of each country.

SECTION A OBSTACLES TO MEDIA FREEDOM: POLITICAL, SOCIAL AND LEGAL 1. Weaknesses in Constitutional Protections in Kenya

The Kenyan Constitution contains a Bill of Rights providing safeguards guaranteeing a number of individual rights and freedoms. These include freedoms of conscience, expression, assembly, and from arbitrary search or entry, as well as the right to property. However, like in most democratic political systems, these rights are qualified in the interest of public safety, public order, public morality, and public health. They may also be suspended by the wide powers given in other statues to the police and other public officials. In specific terms, section 79 (1) of the Kenyan Constitution states that “Except with his own consent, no person shall be hindered in enjoyment of his freedom of expression, that is to say

3 freedom to hold opinions without interference, freedom to communicate ideas and information without interference…and freedom from interference with his correspondence.”1 Section 79(2)(a) limits these freedoms, however, to protect the reputations, rights and freedoms of other persons or the private lives of persons involved in legal proceedings and prohibits disclosure of information received in confidence, among other things. Section 79(2)(b) provides that restrictions so imposed on freedom of expression must be reasonably justifiable in a democratic society. There is no specific reference to freedom of media, but it is generally believed that media freedoms derive from such individual freedoms, i.e., that even though the media have no specific institutional protection, in their day-to-day work the media will be treated as private persons with regard to enjoyment of such freedoms. However, case law in Kenya suggest two interpretations as to whether Section 79 protects freedom of the media, each of which reveals shortcomings in constitutional protections of media freedom and independence in the country. The first interpretation was offered by a former Chief Justice of Kenya, F.K. Apaloo, to the effect that though the Kenya Constitution confers the freedom of speech, which includes oral and written expression, it does not specifically expressly carter for freedom and independence of the media. Hence, the media are ultimately open to official and unofficial interference, controls and regulation. On the other hand a Court of Appeal Judge, S.E. Omolo, expressed what has come to be the most dominant view in Kenyan case law, i.e., that the Kenya Constitution “merely recognizes freedom of expression; it does not create it. The right to speak was given to man by God himself.” Hence, media freedom resides in a legal and policy netherworld where it is precariously exposed to political machinations and predatory practices of capitalist competition. The most often expressed criticism of the constitutional guarantees (Bill of Rights protections) is that they are often ignored in the process of administration of the law, particularly with respect to matters pertaining to the mass media as institutions. Hence, while individual journalists may enjoy their rights and freedoms, the media institutions in which they work are expected to play their role as public watchdogs without any legally acknowledged rights other than those conferred under the Companies Act. Moreover, in contrast to the provisions of Article 19 of the International Covenant on Civil and Political Rights (ICCPR), freedom of expression as provided for under the Kenyan Constitution does not include the right to seek or receive information. Yet, to play a watchdog role, the mass media as institutions have a perceived duty to seek, receive and disseminate information to the public. Consequently, media institutions may not be able to operate freely and independently and, as has been pointed out by others, Kenya now needs constitutional prohibition against promulgation of laws that derogate from the independence and freedom of the media, as well as protection against private enterprise interests that deny the widest access to media products by members of the public. 2. Judicial Reticence in Kenya: Protection of the Politically Connected

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Constitution of Kenya, Section 79.

4 The absence of constitutional protection against the promulgation of laws that derogate the spirit of freedom of the media has in turn led to reluctance of the judiciary to protect journalists and the media from those who would want to muzzle the media as essential components of democratic governance. The courts have not unequivocally established the supremacy of the Constitution over statutes that contradict its provisions. By virtue of Section 84(1) of the Kenyan Constitution, the High Court is vested with the jurisdiction of enforcing the guaranteed rights. Hence, complaints by those who fear that their rights and freedoms that are protected under sections 70 to 83 (the Bill of Rights) are being or are likely to be contravened may be referred to the High Court. Also, the High Court has jurisdiction over questions of interpretation of the Constitution that may arise. Yet it has not always been clear that the High Court has been keen to question the powers and actions of state authorities when these contravene Bill of Rights guarantees of private individuals, journalists and media institutions. For instance, in January 1992, Kenya’s Attorney General moved to the High Court to stop the editors of Society magazine from publishing, distributing or selling an issue of the magazine whose cover had the portrait of the president holding his chin and the words “The Cost of Killing Ouko” and “Kibaki Wants Moi Out.” The Attorney General submitted that the issue was replete with falsehoods and distortions aimed at bringing hatred or contempt or to excite disaffection against the person of the president and the Government of Kenya as by law established. He submitted that the magazine’s cover page sought to portray the president as a rejected and dejected leader and, therefore, sought relief of a permanent injunction. The editors of the magazine denied the accusations citing justification and freedom of expression as defence. In granting the Attorney General’s prayer, the High Court argued that the words published in Society were seditious and, hence, did not constitute an exception of freedom of expression as guaranteed under the Bill of Rights. In the process, the High Court in effect legitimised the use of a civil remedy of injunction for an alleged criminal offence of sedition, a move that has been criticized as demonstrating extreme deference of Kenyan courts to state authority. Other recent case law decisions as illustrated by the following cases tend to reinforce the charge of deference to state authority—or judicial reticence, in effect, purchasing patronage by obsequious deference to the politically connected and the powerful: 1. In 1993 publishers and printers of three Kenyan publications, Society, Economic Review and Finance moved to the High Court to stop the Attorney General and the Commissioner of Police from interfering with their businesses and operations, entering their premises without search warrants or lawful justification, and infringing and contravening their rights under sections 75 to 82 of the Constitution of Kenya (i.e., under Bill of Rights protections). The Attorney General and the Commissioner of Police denied contravening the rights of the plaintiffs and justified their actions on the grounds that they were investigating a criminal offence whose trial was pending in a lower court against some of the plaintiffs, among other defences. The court ruled that defendants (the A.G. and Police Commissioner) were justified under various provisions of the laws of Kenya and refused to grant an injunction as requested by

5 the applicants. It argued that even though the court had jurisdiction provided for in the Constitution that no other statute could limit, the absence of rules in the relevant section of the Constitution (section 84) created a gap that could only create further hardships of interpretation. Hence, it was more convenient to rely on existing legislation, in this case on section 16(2) of the Government’s Proceedings Act dealing with circumstances under which injunctions may be granted as relief. It has been argued that this ruling effectively denied three of the respondents the enjoyment of their freedom of expression. Moreover, the court put more weight on upholding general legislation rather than the supremacy of the Constitution and, hence, failed to provide much needed guidance on how to proceed when constitutional rights protections are contradicted by other legislation, i.e., when fundamental rights clash with ordinary rights. The publications in question were known irritants to the political establishment in Kenya. 2. In 1996 East African Televisions Limited (EATN) was granted a license to operate radio and television services by the Minister of Information and Broadcasting following which in 1997 the Kenya Posts and Telecommunications Corporation (KPTC) granted it frequencies that were then held by Kenya Television Network (KTN) which EATN had acquired. At the same time, the Nation Media Group (NMG) was trying to obtain broadcasting frequencies for both radio and television. One of the shareholders of EATN would appear to have transferred his shareholding in EATN to his partner who in turn sold the whole to a company owned by Nation Media Group called Africa Broadcasting Limited (ABL). A dispute ensued between the two shareholders of EATN over the share transfers, causing the Minister of Information and Broadcasting to cancel EATN’s broadcasting license on the grounds that there was uncertainty over its ownership. The minister also urged KPTC to withhold broadcasting frequencies, which the corporation did. The matter went to court in 1998 and the minister argued that EATN had an ownership dispute and had also contravened one of the conditions under which it was grated a license in the first place, namely, the transfer of shares to a subsidiary of NMG thereby violating relevant legislation on monopolies and mergers. A number of suits followed in the High Court seeking judicial review of the decisions of the minister and KPTC, many of which are yet to be determined. What seems clear, however, is that this saga had more to do with personalities and parties behind the various companies and their relationships with and connections to powerful people in the government. It is a case of the way political connections can influence how scarce national resources, in this case broadcast licences and frequencies, are allocated in Kenya—with grave consequences for media development and freedom. 3. In 1994 the Attorney General sought and obtained leave from the Court of Appeal to institute contempt proceedings against a reporter, the editor and publishers of The People for the contempt of scandalising the court. The case arose out of another one at the time before the Court of Appeal involving university lecturers who had moved to court seeking injunctions against some actions of their employer and about which the president had adversely commented at a public rally. The reporter of The People published a story headlined “Court of Appeal Ruling on Dons’ Case Reeked of State Interference” and in

6 which the court ruling was linked to the president’s speech. The Attorney General sought committal to jail of the reporter and editor for scandalizing the court, which the court granted, even though the article in question quoted several leading lawyers who acknowledged that the president’s public utterances over a matter that was awaiting judgement before the court were calculated to influence the court’s decision and was illegal under the sub judice rule. 4. In a similar case, the Attorney General in 1999 moved to the Court of Appeal against the proprietor and editor of The Post on Sunday seeking to commit him to jail for scandalizing the court. This arose from a so-called grand expose in which the editor claimed that one of the parties who were involved in litigation before the same judges in another case had bribed one of them. The Attorney General also argued that the journalist had contravened the sub judice rule, which prohibits commentary on cases that are yet to be determined by court, and that the report was a scurrilous and an unjustified attack on the court and was calculated to bring into disrepute the administration of justice in Kenya. The journalist was convicted and jailed, with one of the judges warning that “it is the duty of the court to punish for contempt so as to prevent the interference with or obstruction of justice.”2 The other argued that “when someone, particularly a journalist, without proof and guided by motives other than fair, attacks the very integrity of the court, the power of contempt is the only weapon at the disposal of the court to put matters right.”3 5. In 1991 four people were charged with the criminal offence of sedition after they were found in a Nairobi suburb bar at night in possession of three publications entitled Kenya: Security Home Boys, Financial Review, and Beyond. The last two magazines had been prohibited earlier. The prosecution argued that the accused had seditious intentions because of the time and place of their meeting, even though they did not know the subject under discussion. All four were given long jail sentences, and the case has been cited as an attempt to give judicial respectability to political persecution and to curtail freedom of association. These cases and more have been cited to show that the Kenyan judiciary is overly conservative and deferent to the state and leading politicians. Of late, however, critical observers of case law in Kenya have pointed out that there have been instances when some judges have stood up for fundamental rights of citizens, including freedom of expression. For instance, in 1998 a Kenya government minister filed a plaint in court4 seeking damages against Star Publishers Limited and its editor on the grounds that the editor had published an article to the effect that the minister had incited his ethnic group to take up arms; that the words published meant that he (the minister) was a tribalist, war monger, criminal, rascal and sectionalist. The minister also sought an injunction against sale, distribution or otherwise disseminating the said issue of The Star. The defendants admitted publishing the offending article but argued that the words published were true and not malicious. They also raised the defence of qualified privilege in that the publication
2 3

Criminal Application No. 4 of 1999, Judgement of Tonui JA, p. 5. Criminal Application No. 4 of 1999, Judgement of Shah JA, p. 8. 4 HCCC No. 883 of 1998.

7 was made on a matter of public importance and interest. Thus, the judge’s task was to balance private against public interests with regard to media freedom. He ruled against granting an injunction to the minister thereby affirming the supremacy of public interest, a most heartening decision from the point of view of journalists and their editors. 3. Statutory Limitations to Freedom of Expression in Kenya

As in many countries, Kenya retains in its statute books laws that restrict speech for various reasons. The most invidious of these statutes are: 1. The Books and Newspapers Act of 19625 that provides for the registration and deposit of books and newspapers and the execution of bonds by printers and publishers. It requires all publishers in Kenya to submit two copies of their newspapers to a registrar and make annual returns, and execute, register and deliver to the registrar a bond of Ksh. 10,000 (US$ 200) along with one or more sureties as security for any monetary penalty that may at any time be adjudged against the registrar. The Act further grants the police wide powers to seize any newspaper published in contravention of the Act without any search warrant or court order. In the process of executing such powers the police may also seize any other evidence of the commission of the offence under the Act. 2. The Defamation Act of 19726 as amended in 19927 introduced exceedingly high minimum amounts of damages that must be awarded for certain types of libel. For instance, for libel relating to offences punishable by death, the amount assessed shall not be less than Ksh. 1 million (US$ 20,000); where libel is in respect of an offence punishable by imprisonment, the penalty shall be a three-year jail term and a fine of Ksh. 400,000 (US$ 5,000). The fact that the amendment was introduced in 1992 just before multi-party elections has been interpreted to mean that they were politically motivated and intended to muzzle the media. Already a number of newspapers have suffered heavy fines under this law during the 1990s. 3. The Official Secrets Act of 1970, whose purpose is the preservation of state secrets and security, makes it an offence to obtain or retain government documents, sketches, notes, photographs or papers for purposes of communication to a foreign power or for any unauthorised purposes that may endanger the security interests of the state. Thus, the media are restricted in terms of which official documents they may access in their role as public watchdogs so as to ensure transparency and accountability in governance. 4. The Preservation of Public Security Act was enacted in 1987 under authority conferred upon the president by section 85 of the Kenya Constitution. It gives the president powers to censor, control or prohibit the communication of any ideas or information and dissemination of false reports. For instance, the Act was invoked from September 1993 to March 1994 to establish security zones in some parts of the Rift Valley Province of Kenya

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Laws of Kenya (1962) Chapter 111 Chapter 36 of the Laws of Kenya. 7 The amended statute is called “The Statute Law (Miscellaneous Amendmant) Act No. 12 of 1992.”

8 in the wake of ethnic conflicts. 8 This move prohibited the publication of news and information from the security zones as and when the minister in charge of internal security deemed fit. 5. A number of public order statutes, such as The Public Order Act9 and Chief’s Authority Act 10 confer wide powers on administrative officials to license public gatherings and monitor the attendance and conduct of such gatherings. Such powers are often used to justify the harassment of journalists who cover the meetings. 6. Incitement to disobedience: It is an offence in Kenya for anyone to utter or publish anything that indicates or implies that it is desirable to do or omit to do anything whose purpose is to defeat or prevent by violence or other unlawful means the execution or enforcement of any written law, or leads to disobedience of any law or lawful authority. Thus, under this provision, civil disobedience as an aspect of freedom of expression is outlawed. 7. Under the law on rumour mongering/publishing false statements, 11 publication of any statement, rumour or report that maw cause fear and alarm to the public or disturb peace is outlawed. Such publication can only be made when one can show that he/she took all reasonable measures to ascertain the truth of the statement, rumour, or report. 8. The Film and Stage Plays Act prohibits the making of a film in Kenya for public exhibition or sale except so far as it accords with the terms and conditions of a licence issued by a licensing officer appointed by the minister in charge of information and broadcasting. Such an officer has the powers to refuse to grant a license. And under sections 11, 12, 16 and 17 of the Act, a film must be approved by a Board of Censors before public exhibition. At the same time, posters advertising a film must be approved by the Board, which has powers to alter or refuse public display of such posters. With regard to stage plays, it is an offence under the Act to present, direct, produce, take part in, assist in the direction or production of any public performance of a stage play without a license from a licensing officer, who may deny such a license. 9. Section 52 of the Penal Code empowers the minister in charge of information to prohibit the importation of any publication or past and future issues of a publication or all past and future publications by any person in the interest of public order, health or morality, the security of Kenya, the administration of justice, or the maintenance of the authority and impartiality of the judiciary. By granting the minister such wide powers, this law has been cited in case law as inherently capricious as it allows the prohibition for an alleged offence in a current issue of past and future issues of a publication thus denying freedom of the press.

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The Preservation of Public Security (Molo, Burnt Forest and Londiani Areas) Regulations, 1993, Kenya Gazette Supplement, September 17, 1993. 9 Chapter 56 of the Laws of Kenya. 10 Chapter 128 of the Laws of Kenya. 11 Section 66 of the Penal Code.

9 10. Kenyan law provides for two kinds of contempt of court: criminal contempt and civil contempt. Civil contempt occurs when someone disobeys a court order. On the other hand, there are three types of criminal contempt of court, namely, publishing anything that may prejudice a pending trial, scandalising the court, and interfering with judicial proceedings or refusing to reveal sources of information to a court or tribunal. Many journalists and editors have come to grief in Kenya under the provisions of this law. 4. Other Obstacles to Freedom of the Media in Kenya

Other obstacles to freedom of the media in Kenya are associated with political interference, patronage, and bribery of journalists by powerful personalities. To these may be added inadequate training and experience of many journalists. In fact, recent surveys have shown that up to 75 per cent of domestic news in Kenya’s three largest dailies are supplied by untrained and often unemployed correspondents that are paid by column inch. This practice, though economically facile for newspaper publishers, encourages sensationalism and inaccuracy and has landed some of the publishers and editors in expensive defamation suits in recent times. On the whole, Kenyan Journalists enjoy considerable freedom to practice their profession without official interference. However, some journalists have come to grief in some areas of the country where political violence is endemic, e.g., North Rift, North Eastern Province, and parts of the Rift Valley. Violence against journalists also tends to be associated with police actions against unauthorised public gatherings organized by government critics and activists. Following political pluralism since the 1992 general elections, hundreds of what have come to be called “alternative” publications have mushroomed in the streets of Nairobi and other towns. These publications are all privately owned, are relatively restricted in their outreach, concentrate mainly on political coverage (though many are religion or sex focussed), and tend to champion mainly the political causes of the ethnic groups to which their proprietors belong. They also take mainly the form of weekly or monthly newspapers or magazines. A recent content analysis of three such publications12 found ethnic slanting of political stories to be their most salient characteristic. Moreover, national issues such as conflicts, public appointments, political debate, or the manner in which security forces handle crime were unnecessarily “tribe-tagged,” thereby creating the impression that there was always an ethnic motivation behind these events. These findings are consistent with another study13 which content analysed the nature of coverage of the 1997 general elections and found the managerial composition of Kenya’s three leading newspapers to be the most important determinant of the quality and quantity of coverage of presidential candidates and their political parties. The other important factor was the extent to which politicians were able to purchase personal influence among journalists working for these newspapers.
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Barsito, K. and A.J. Onditi (1998), “Do the Alternative Media Enhance Political Dialogue or Promote Sectarian Politics? A Content Analysis of The Star, Kenya Confidential and Finance.” Mimeo. School of Journalism, University of Nairobi. 13 Odhiambo, Lewis Omwanda (1998), “Mass Media and the Political Process: Kenya Elections ’97,” A Consultancy report submitted to United States Agency for International Development.

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In view of such widespread unprofessional conduct, the government in 1993 established a Task Force on Press Law to inter alia: “make recommendations on Press Law providing for a comprehensive legal framework for the exercise of the freedom of the Press and the development of dynamic and responsible print and electronic media, making provision, inter alia, for free access to information and its dissemination; a code of professional and ethical standards; and ownership, development and licensing of the media.”14 But even as the task force was going on with its work, the Minister for Information and Broadcasting announced that the government had completed a Press Council Bill that was soon to be tabled in Parliament. In 1995 the Bills, respectively called Kenya Mass Media Commission Bill (1995) and Press Council Bill (1995), were leaked to the media and the Attorney General hastily withdrew them. But not before the true intent of the bills became clear to the public, i.e., the control of the media. For instance, the Press Council of Kenya Bill (1995) provided for the establishment of a Press Council “for the conduct and discipline of journalists (sic) and the mass media.” The Bill also provided for the “registering and disciplining of journalists.” Moreover, membership of the Press Council was to be dominated by government appointees. The Bill made it an offence punishable by a fine of Ksh. 20,000 (US$ 250) or 12 months imprisonment to practice journalism without registration, which was to be renewed annually on payment of a fee; registration could also be denied. It has been suggested that the mere prospect of denial of registration is enough to force journalists into self-censorship.15 Clause 23 of The Kenya Mass Media Commission Bill (1995) empowered it to deregister a newspaper on the recommendation of the Press Council if its proprietor was found guilty of contravening the code of conduct set out in the schedule of the Press Council Bill. This notwithstanding the fact that the code of conduct was largely an ethical code setting out standards for the practice of journalism in Kenya. Eventually the Task Force on Media Law submitted its report to the Attorney General in November 1998. The report recommended the creation of the Kenya Media Commission which would, among other functions, issue broadcast licences, allocate broadcast frequencies, and make regulations on issuance of licences and allocations of frequencies. The Commission was to be composed of 13 members appointed by the president after nomination through an “electoral college” composed of people picked by members of the public. The Task Force was particularly keen that neither media owners nor the government should dominate the Commission. Finally, the report contained a code of conduct for media and media practitioners (sic). The government has not acted on the report of the Task Force, nor has it indicated whether the shelved Bills would be revised in accordance with the recommendations of the Task Force. Nonetheless, the media fraternity and civil society groups fear that Kenya will not remain without some form of media regulatory body or another for long. Indeed, it is feared that government may ambush Parliament with another Bill before the next general elections due in 2002.

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Through legal Notice No. 6889 of December 24, 1993. Wachira Maina and Kathurima M’Inoti in The Nairobi Law Monthly No. 60, January 1996, p. 19.

11 Such apprehension has generated a flurry of activities among journalists and their organizations. For instance, the Kenya Union of Journalists in 1996 worked on a draft media bill, which they presented to the Attorney General for incorporation into any future legislation that the latter may contemplate. On their part, the Editors’ Guild of Kenya has published “The Code of Conduct and Practice of Journalism in Kenya” to be launched mid-March. The Guild is also working in collaboration with the Kenya Union of Journalists and Media Owners Association under the guidance of the School of Journalism at the University of Nairobi on a self-regulating media council to be announced soon thereafter. It is hoped that these efforts will discourage the government from introducing in Parliament legislation that will adulterate freedom of expression and media. 5. Weaknesses in Constitutional Protections in Tanzania

Although mainland Tanzania’s constitution did not have a Bill of Rights at independence, amendments were introduced in 1984 that incorporated a Bill of Rights in the Constitution of the United Republic of Tanzania.16 Article 18(1) of the Constitution gives everyone “the right to freedom of opinion and expression and to seek, receive and impart or disseminate information and ideas through any media regardless of national frontiers, and also the right of freedom from interference with his communications.” Article 18(2) gives every citizen the “right to be informed at all times of various events in the country and the world at large which are of importance to the lives and activities of the people and also of issues of importance to society.” The enjoyment of these rights is, however, granted on condition that they do not conflict with other laws, since the Bill of Rights contains the phrase “without prejudice to the laws of the land.” In addition, although Tanzania is a signatory to the International Convention on Civil and Political Rights as well as the African Charter on Human and People’s Rights, their applicability in Tanzanian courts is not automatic. This is because such international conventions have first to be incorporated into local legislation—which has not been done. Hence, the provisions of these conventions cannot guide Tanzanian courts. This, together with the primacy of the laws of the land makes the Tanzanian environment less than ideal for the promotion of the freedom of the media. Also, the Tanzanian Bill of Rights, while having a general provision guaranteeing freedom of opinion and expression, does not provide specific guarantees for key aspects of media rights, e.g., media freedom, right to editorial independence of the media, and the right to confidentiality of journalists’ sources. Article 30(4) of the Constitution provides that the determination for enforcement of basic rights lies with the High Court. Yet regular High Court sittings happen in only 8 out of 20 major urban centres in the mainland, implying that this recourse is practically unavailable to vast numbers of citizens. Moreover, Tanzania has just about 20 judges while such petitions, according to the Basic Rights and Duties Enforcement Act of 1994, must be heard by three judges, a state of affairs that seriously dims the prospects for successful litigation. Moreover, Article 30(1) provides that

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Introduced by Act No. 15 of 1984.

12 enjoyment of one’s human rights and freedoms must not interfere with the freedoms and rights of other people or the public interest. Article 30(2) says that the provision setting out the basic human rights and freedoms does not invalidate any existing legislation, prohibit the enactment of any new legislation or any lawful act aimed at: (a) ensuring defence, public safety, public order, public health, etc.; (b) protecting the reputation, rights and freedoms of others or the privacy of persons involved in court proceedings, prohibiting the disclosure of confidential information, or safeguarding the dignity, authority and independence of the courts; and (c) enabling any other thing to be done which promotes or preserves the national interest in general. The article also authorises restriction of individual rights and freedoms during a state of emergency “provided that they are necessary and justifiable.” Clearly phrases such as “any other thing to be done which promotes the public interest” and “the national interest in general” allow the state and its functionaries a wide latitude for actions that can seriously limit media freedom. 6. 1. Other Statutory Limitations in Tanzania

The Newspapers Act (1976) imposes a fine and imprisonment for up to four years on any person who publishes a newspaper without registration with the Registrar of Newspapers, or who furnishes the Registrar with false information about the newspaper’s particulars. The Registrar is an appointee of the minister in charge of information and enjoys wide discretionary powers over the registration process, including the power to refuse to register a newspaper which he/she thinks may be used for any purpose prejudicial to, or incompatible with, the maintenance of peace, order and good government.17 The Act also empowers the minister to require that a publisher deposits a bond of an unspecified amount against any possible monetary penalties or damages which the newspaper may incur. Non-payment of such a bond may result in a fine or imprisonment for up to two years. The Act requires that publishers keep copies of all materials they publish for up to six moths or risk being fined or imprisoned for up to one year or both. Section 22 permits any police officer to seize any newspaper, wherever found, which has been printed or published in contravention of the Act. A magistrate can also authorise police officers of specified rank to enter and search “any place where it is reasonably suspected that any newspaper printed or published in contravention of this Act is being kept. The Act further gives the minister wide discretionary powers to ban or close down newspapers “in the public interest” or “in the interest of good order.” 18 Failure to obey a ministerial ban on a newspaper is subject to a fine or imprisonment for up to four years or both. Part V of the Act, entitled “Offences Against the Republic,” empowers the president to prohibit the importation of any publication deemed “contrary to the public interest” into Tanzania.19 The Act also provides for the offences of sedition, false news and defamation (see below). Finally section 52 of the Act removes the right of anyone to prosecute any

17 18

Sections 6, 10, and 12 of the Act and regulation 12(1) of Newspaper Regulations (1977). Section 26 of the Newspaper Act (1976). 19 Section 27 of the Newspaper Act (1976).

13 public officer for anything done or omitted to be done under this Act, provided it was done “in good faith.” This Act was extensively applied during the 1990s. For instance, between 1993-99 at least 12 newspapers were temporarily banned by the government for reasons ranging from publication of obscene cartoons and pictures to using profane and obscene language. In June 1998 the printing, publication and circulation of Chombeza, Arusha Leo, and Kasheshia was proscribed for publishing insulting cartoons. Although the ban on Chombeza was lifted four months later, it was banned again after two months for publishing lewd material. Other papers that were banned in the 1990s were Michapo, Cheka, Nyundo, Kombora, Majira, Watu, and Tingisha. 2. Tanzania News Agency Act (1976) granted the agency powers to control the collection, distribution and dissemination of news in Tanzania, but in April 2000 the Act was repealed and the powers and functions of the Tanzania News Agency were transferred to the Government Information Services which retains virtually the same powers. The government drafted a Bill in 1993 that proposed to establish the Tanzania Media Council under the authority of the minister responsible for information with powers to register journalists and set standards of conduct and activities for media professionals. Following widespread outcry and protests, the Bill was withdrawn. To forestall future government legislation, media professionals and workers formed an independent and self-regulating Media Council of Tanzania that was formally registered on May 22, 1997. The council grew in popularity following wide publication and distribution of its Rules of Procedure. Its Ethics Committee that hears complaints about the media has diverted numerous potential libel cases from courts. In fact, senior government officials, including the vice-president of Tanzania, have brought complaints against the media to the Ethics Committee for mediation. The Broadcasting Services Act (1993) established the state-owned Tanzania Broadcasting Services, but does not provide for its independence in management and editorial decisions. The Act also established the Tanzania Broadcasting Commission whose main functions are to license private broadcasters and supervise broadcast content and lay down licensing conditions. Radio and television licenses are issued for between three and five years duration. The criteria for granting licenses include safeguards against media concentration and promotion of community radio. The commission has a right, when granting a license, to attach conditions regarding “the broadcasting or non-broadcasting of reports, announcements, news or other information which is required to be broadcast in the public interest. The Act provides for appeal to the minister in case of denial of a license, but not to the courts. A criticism of the Act is that the manner in which the Tanzania Broadcasting Commission goes about granting licenses is not transparent. In addition, the Commission restricts a private broadcast licensee not to broadcast in more than 25 percent of the geographical area of Tanzania, making exception only for the public broadcaster, Tanzania Broadcasting Corporation. This provision is being challenged in court by a Dar es Salaam law firm on behalf of the Media Institute of Southern Africa—Tanzania Chapter.

3.

4.

14

5.

The National Security Act (1970) gives government absolute powers to define what may be disclosed or withheld from the public. Thus, nobody may obtain, investigate, possess, comment on, pass on or publish any document or information that the government considers classified. Included are documents relating to any public corporation, company, organization or any other body connected with the government and the ruling party, CCM. It is an offence to receive or communicate any such information, and infringement is punishable by imprisonment for up to 20 years. Also, anyone who accesses or is suspected of having accessed a “protected place” can be charged with espionage. A protected place is anywhere designated so by the president or government. The Act further threatens freedom of expression by criminalizing contact with outside bodies, which conceivably may include information agencies, trade unions or international organizations. It provides for sweeping powers to search, seize, arrest and detain anyone without warrant on mere suspicion. The offence of sedition is provided for in the Newspaper Act (1976). An act, speech or publication is seditious if it aims to bring lawful authority into hatred or contempt, or excites disaffection or promotes feelings of ill will and hostility between different population groups. Sedition has become a common charge against opposition politicians and journalists in Tanzania since the advent of multi-party politics in the 1990s. For instance, in December 1999 the chairperson of the Tanzania Labour Party was arrested along with six other persons and charged with sedition for uttering disparaging remarks against top government officials and leaders of the ruling party. Section 89(1)(a) of the Tanganyika Penal Code (1945) criminalizes the use of abusive language likely to cause a breach of the peace, while section 114(1)(b) provides that non-disclosure by the media of a source in court may lead to contempt proceedings, with the possibility of a fine or imprisonment for up to six months. Also in conflict with the principle of protection of journalists’ sources is section 15(2) of the National Security Act (1970) that provides for trial in camera with no right to bail and a maximum sentence of five years for anyone who refuses to supply information about any suspected offence under the Act. Hence, the media in Tanzania cannot effectively perform their function of ensuring freedom of expression, which is essential in a democratic society, if people in possession of information which they believe should be brought into public domain are at risk of being identified and penalised for disclosing such information to the media. The offence of defamation is covered under the Newspaper Act (1976) which defines it as a written, printed or other act, except for the spoken word, which concerns “another person, with intent to defame the other person.” Defamatory matter is something likely to injure the reputation of a person by exposing them to hatred, contempt or ridicule. While the Act provides for some protection of defamatory matter (absolute privilege20), such protections

6.

7.

8.

20

Section 42 of the Newspapers Act (1976) provides that absolute privilege will apply: if the matter is published in the union House of Representatives in any official document or proceeding; if the matter is published in the House of Representatives by any member of parliament or the speaker; if the matter is published in the course of any judicial proceedings; if the matter is published concerning a person subject to military or naval discipline; and if the matter is published in a fair report of anything said, done or published in the House of Representatives.

15 do not extend to the conduct of public figures and government officials—the very people whose actions fall within legitimate public interest. Under the Act, the onus is on the defendant to prove his or her innocence rather than on the plaintiff to prove him/her guilty thus clearly reversing a fundamental tenet of justice in common law systems. Section 43 of the Act provides that some defamatory matter may be published provided their publication is done in good faith (conditional privilege21). Section 46 sates that anybody who defames a foreign dignitary “with intent to disturb the peace and friendship between the United Republic of Tanzania and the country to which such a ruler, ambassador or dignitary belongs” will be guilty of defamation. The offence of defamation carries a fine or a jail term of two years or both. Tanzanian courts have tended to find for the defamed persons with the consequence that investigative journalism has not developed in the country, even with the proliferation of private media in recent years. 9. The offence of publication of false news is provided for in the Newspapers Act (1976) that defines false news as “any false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace.” The Act also provides that defence for this offence is proof that, prior to publication, the accused had reason to believe that the statement, rumour or report was true. Section 37 prohibits publication or declaration to a group of more than three people that it would be desirable to take action which would cause the death or physical injury of another person or community, or lead to damage or destruction of property The Prisons Act (1967) restricts comment by media or members of the public on the prison system or conditions under which prisoners are being kept, regardless of whether this is done in the public interest or not. Section 83 of the Act disallows communication with a prisoner and forbids making sketches or taking photographs of a prisoner within or outside a prison. Thus, this Act imposes blanket restriction on the right to freedom of expression of prisoners and freedom of the media to report or comment on matters of national interest in a way that cannot be justified in a democratic society.

10.

7.

Weaknesses in Constitutional Protections in Zanzibar: The Case of No Protections

Zanzibar introduced a Bill of Rights into its Constitution in 1984 which states, inter alia, that “subject to any law for the time being in force, every person shall have the enjoyment of his freedom of expression, that is to say, freedom to hold opinion without interference, freedom to receive ideas and information without interference, and freedom from interference with his correspondence.”22 It further states that “every citizen shall be entitled to receive information at any time in respect of national and international events which are important to the lives and functions of the people and also matters of national interest.”23
21

Conditional privilege applies when: the matter was untrue but the person publishing them believed them to be true; the matter was untrue and the person publishing them took reasonable care to ascertain their truth or falsity; the matter was untrue but it was not published with intent to injure the defamed person. 22 Chapter Three, Article 18(1) of Zanzibar Constitution of 1984. 23 Article 18(2) of Zanzibar Constitution of 1984

16

It is clear that these Bill of Rights provisions do not explicitly provide for freedom of the mass media though journalists may draw their professional rights from them. More ominously, however, is the fact that such rights may be enjoyed only “subject to any law for the time being in force.” And there are many laws in Zanzibar statute books that can be used to override these rights. 1. The most sweeping laws that are routinely used to control the print media in Zanzibar derive from the Registration of News Agents, Newspapers and Books Act (1988). In fact, it has been suggested that it is due to this Act’s draconian provisions that there is no single privately owned newspaper or news magazine in Zanzibar to this day. Its key provisions that unduly restrict print journalism are: 2. The Advisory Board appointed by the government and mandated to exercise “disciplinary control over journalists, editors and publishers,” arbitrate disputes between the public and the media on the one hand, and the state and the media on the other, and regulate “the conduct of and (promote) good ethical standards and discipline of journalists.”24 3. Registration provisions that make it illegal for the existence of Newspapers in Zanzibar without registration by the government. Moreover, a newspaper publisher must execute a bond of an amount to be determined by the minister in charge of information as “security for or towards the payment of any monetary penalty which may at any time be imposed upon or adjudged against … any person … on conviction of an offence under this Act.”25 4. Section 27(1) of the Act grants police officers above the rank of inspector powers to enter premises and seize publications that such officers suspect have been printed or published in contravention of the Act without a warrant. Section 43 (2) grants police power to (a) enter any place, premises or vehicle or aircraft within which he has reason to believe that news material intended for dissemination is being or about to be prepared, conveyed or otherwise dealt with for the purpose of collection or distribution with a view to ascertaining whether or not the provisions of this Act … have been complied with; (b) inspect any process or operation which is or appears to be carried on in any place or premises in connection with the collection or distribution of any news or news material intended for dissemination; (c) require from any person the production of any book, newspaper or other publication or document which is in the possession or custody or under the control of that person or any other person on his behalf; (d) examine and copy part of any book, record, newspaper or other publications which appears to him to have relevance to his inquiry, and require any person to give an explanation of any entry in the book, record, newspaper or other publication or document, and take possession of all or any one of those documents or document if he believes that the documents or document so taken may afford evidence of an offence under this Act. 5. Section 36(1, 2) gives government powers to suspend or ban publications and to prohibit banned publications. Such powers can be invoked “in the public interest of peace and good order.” It also gives government the right to licence journalists. Thus, under the Act, anyone not licensed cannot “(a) collect or cause to be collected in Zanzibar any news or news material for the purpose of dissemination; or (b) distribute or cause to be distributed,
24 25

Sections 4 and 5 of the Registration of News Agents, Newspapers and Books Act (1988) as amended in 1998. Section 8 of the Registration of News Agents, Newspapers and Books Act (1988).

17 whether within or outside Zanzibar, any news or news material intended for dissemination collected within Zanzibar.” The Minister of Information is also grated the power to revoke a license “if in his opinion such revocation would be in the interest of the public or would be in the interest of peace and good order.” 6. Section 42 provides that licenses will be grated only on condition that news gatherers “Shall be bound by government policy and in particular shall have regard to (a) the need to promote national policies and the aspirations of the people of Zanzibar, Tanzania and the Government; (b) the need to promote and maintain harmony in the society.” 7. The Act empowers the Minister of Information to authorise the existence of an “All Zanzibar Journalists Association” (which) shall be confined to … persons who are holders of valid authorisation issued under … this Act.” That is, Zanzibar journalists must not only be registered by the government, they can only belong to a national association authorized by government. 8. The Zanzibar Broadcasting Act (1997) establishes the Zanzibar Broadcasting Commission and the Zanzibar Broadcasting Services, the state-owned radio and television operator. There are no private broadcasters in Zanzibar. All members of the Broadcasting Commission are appointed by the government, and there being no safeguards for the independence of the Commission, it is reasonable to assume that it operates under complete government influence and control. Its main functions are issuance of broadcast licenses to private broadcasters (none of which has been licensed), regulate the activities of broadcasters and the conduct of broadcasting, and to “protect the policy, security, culture and tradition of Zanzibar.” 26 In issuing licenses, the Commission is expected to guard against concentration in media ownership and to promote community radio; it is also expected to promote “national development broadcasting.” It is further expected to assist people to have the right of reply whenever they object to anything that has been broadcast, a function that would have been better performed by an independent and self-regulating media council. 9. The offence of defamation is provided for in the Registration of News Agents, Newspapers and Books Act (1988), which provides for tougher criminal sanctions than the mainland Tanzania law. Defamation is defined as “matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule or likely to damage any person in his professional trade and by injury to his reputation.” It is further “immaterial whether at the time of the publication of the defamatory matter the person concerning whom such matter is published is living or dead.”27 With reference to the media, the defamation law states that “a person publishes libel if he causes the printing, writing, painting, effigy or any other means by which the defamatory matter is conveyed to be dealt with by exhibition, reading, recitation, description, delivery or otherwise, so that the defamatory meaning thereof becomes known or is likely to become known to the person defamed or any other person.” Moreover, “it is not necessary for libel that defamatory meaning should be directly or completely expressed.”28 Section 61 of the Act gives
26 27

Section 17 of Zanzibar Broadcasting Commission Act of 1997. Section 54 of The Registration of News Agents, Newspapers and Books Act of 1988. 28 Section 55 of Section 54 of The Registration of News Agents, Newspapers and Books Act of 1988.

18 the defamation law a political application by extending it to sovereign foreign rulers, ambassadors or other foreign dignitaries. Section 62 (as amended in 1997) extends the offence to corporate bodies such as media institutions whose director or head at the time the defamatory matter was published shall be charged with defamation. 10. The Registration of News Agents, Newspapers and Books Act (1988) also covers the offences of sedition and false news. Conviction for the offence of sedition carries a fine of US$ 1,250 or jail term of five years or both. It is a patently political offence and covers “intention” to do any of the following: (a) bring contempt or to excite disaffection against lawful authority … (b); excite any of the inhabitants of Zanzibar to attempt to procure alteration otherwise than by lawful means … (c); bring to hatred or contempt or to excite disaffection against the administration of justice in Zanzibar … (d); raise discontent or disaffection among any of the inhabitants …(e); or promote a feeling of ill will and hostility between different categories of the population of Zanzibar. The Act also makes it an offence to be in possession of seditious material. Hence, printing machines may be seized on mere suspicion of being used for printing such material “pending trial and acquittal;” on conviction, however, the machines shall be forfeited to government whether the person printing was the owner of the machines or not. This law, which effectively says that it is wrong to criticise the state and, hence, leaders, is perhaps the most pernicious tool used against journalists, publishers and media houses in many African countries and should be done against with. 11. The National Security Act (1970) gives the government absolute scope to define what the public needs to know. It is the same legislation in Zanzibar as in mainland Tanzania (see 2 (e) above for its description and discussion). 12. The Registration of News Agents, Newspapers and Books Act (1988) establishes a government-appointed Censorship Board with powers to censor artists and artistic expression. Section 63 of the Act prohibits anyone from directing, taking part or assisting in the making of a film of any kind without the permission of the director of information. Where a permit is granted, the director of information may appoint an official to be present during the making of the film who, when necessary may intervene to stop the making of such scenes that in his/her opinion are objectionable to the people of Zanzibar or Tanzania. The Act further outlaws importation or sale of or otherwise trade in films without licensure by the Ministry of Information. 8. Constitutional Protections in Uganda: Where the Supreme Law is Simply Ignored

Although Uganda retains many laws from the past in its statute books, it adopted in 1995 a new constitution that contains a Bill of Rights that expressly recognizes freedoms of expression and the media as fundamental human rights “not granted by the state.”29 Article 29(1) of the Uganda Constitution, for instance, provides that “every person shall have the right to (a) freedom of speech
29

Article 20(1) of the Constitution of Uganda of 1995.

19 and expression which shall include freedom of the press and other media.” This is a clear improvement on the constitutions of Kenya, Tanzania and Zanzibar that do not explicitly mention the press or media in their Bill of Rights provisions so that these institutions derive their rights indirectly rather than directly. In another departure from the position in the other East African countries, Uganda has a right of access to information statute, grated under the National Environmental Statute of 1995. This was entrenched in the Constitution which provides that “every citizen has a right to access to information in possession of the State or any other organ or agency of the State except where the release of the information is likely to prejudice the security or sovereignty of the State or interfere with the right to privacy of any other person.”30 But section 41(2) empowers Parliament to make laws prescribing the classes of information that can be accessed and procedures for accessing such information. To-date, however, no legislation has been enacted to put the provision of section 41(1) into effect, and the Supreme Court has upheld that citizens have a right to access to information from Parliament which had been restricted before.31 In practice, however, accessing information is difficult: officials deny having information requested or authority to release the information. On grounds of “security,” access to such places as military barracks and to areas where there is insurgency is practically barred. The Constitution contains provisions curtailing the enjoyment of rights and freedoms listed under the Bill of Rights provisions. For instance, Article 43 (1) provides that in the enjoyment of such rights and freedoms, no person shall prejudice the fundamental or other rights and freedoms of others or the public interest. But it is also clearly stated that the public interest in this article shall not permit political persecution, detention without trial, or any limitation of the enjoyment of the rights and freedoms prescribed beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided for in the Constitution.32 Yet detention of journalists and their prosecution under one statutory provision or another for what is believed to be politically motivated charges is commonplace. The following examples illustrate intimidation of journalists in Uganda in the 1990s even though it has one of the best constitutional provisions on freedom of expression and media in East Africa. It is a case where Constitutional guarantees are simply set aside by political fiat. 1. Haruna Kanabi, the editor of Shariat newspaper, was convicted of treason by a magistrate’s court for having alleged that the president had gone to visit Rwanda, “Uganda’s 40th district,” and that Rwanda’s President Bizimungu was Uganda’s resident district commissioner in the district of Rwanda. His conviction was upheld by the High Court. A constitutional petition challenging the conviction and sentence on the grounds that the charge was unconstitutional as it derogated constitutional guarantees of the right to freedoms of expression and media was quashed on technical grounds.33

30 31

Article 41(1) of the Constitution of Uganda of 1995. In Ssemwogerere & Alum vs A.G., Constitutional Appeal Case No. 1 of 2000. 32 Article 43(2) of the Constitution of Uganda (1995). 33 See Haruna Kanabi vs. A.G. (Constitution Petition No 6 of 1997).

20 2. Musa Njuki, a journalist with Asallam newsletter was arrested for similar claims. He died in custody. 3. T.S. Cheeye, the editor of the anti-corruption newsletter, Uganda Confidential, was charged with treason for alleging that the wife of Uganda’s president had ordered the murder of a university student from her home area. The charge was dismissed with the magistrate holding that Mrs. Museveni was not a president and the charge of treason could only be sustained in respect of the president. 4. Charles Onyango-Obbo, and Wafula Ogutu and a number of other journalists with The Monitor newspaper have been in and out of detention for numerous alleged offences ranging from sedition to publication of false and alarming news from 1990 to-date. 5. Charles Onyango-Obbo and Andrew Mwenda were charged with publishing false news. They have petitioned the High Court34 alleging that section 50 of the Penal Code under which they were charged is unconstitutional as it derogated the right to freedom of expression and media as spelled out in the Constitution. The High Court on July 20, 2000 upheld the false news laws as provided in the Penal Code to be constitutional. 6. Three editors of Uganda’s independent daily newspaper, The Monitor, were acquitted in early March 2001 of sedition and publishing false news after a Kampala court ruled that a picture of men in army uniforms shaving the pubic hair of a woman that was published in the newspaper in May 1999 was not seditious. 35 The prosecution had argued that the publication was malicious and intended to incite the public against the president. But the magistrate said he could not find the said intention and the state was not synonymous with the president. Moreover, the magistrate argued, the editors did not publish false news because they said the contents of the picture were fact. Thus, there are a number of laws in Uganda’s Penal Code Act that clearly derogate the fundamental right to freedom of expression, free press and access to information as provided for in the Uganda Constitution. For instance, sections 41, 42 and 50 provide for the offence of sedition in such vague and general terms that they can only have a chilling effect on media practitioners. The sections prevent the media from freely commenting on or criticising the government and curtail people’s right to freely access information in the custody of government officials. On the whole, even though Uganda’s case law has upheld the unconstitutionality of many of the provisions of the Penal Code Act such as sedition and the offence of publishing false news,36 they are still widely applied against journalists and politicians and upheld as constitutional by some judges.37 In 1995 the Ugandan Parliament passed the Press and Journalists Statute (1995) “to ensure the freedom of the press, to provide for a Council responsible for the regulation of mass media, to establish an Institute of Journalists of Uganda, and repeal the Newspaper and Publications Act and Press Censorship and Correction Act.” On the whole, the intent of the legislation was to assure that
34 35

Charles Onyango-Obbo and another vs. A.G. (Constitution Petition No. 15 of 1997). Daily Nation, March 7, 2001. The three were Managing editor, Wafula Ogutu, Deputy editor-in chief, Charles Onyango-Obbo, and journalist, Balinkowa. 36 See, for instance: Major General David Tinyefuza vs. A.G. (Constitutional Petition No. 1of 1997), appealed as Appeal No. 1 of 1997 in the Supreme Court of Uganda; Zachary Olum and another vs. A.G. (Constitutional Petition No. 6 of 1999); and Dr. James Rwanyarare vs. A.G. (Constitutional Petition No. 5 of 1999). 37 See, for instance, Charles Onyango Obbo and another vs. A.G. (Constitutional Petition No. 15 of 1997.)

21 the enjoyment of freedom of the media was done in accordance with constitutional provisions. For instance, section 3(1) of the statute provides that “A person may, subject to the provisions of this statute, publish newspapers; sections 3(2) sates that “No person or authority shall, on ground of the content of a publication, take any action not authorised under this statute or any other law to prevent (a) printing, (b) publication (c) circulation of a newspaper.” Section 5 says that “A person may have access to official information subject to the provisions of any law in force relating to national security, secrecy or confidentiality of information.” But the net effect of this Statute has been exactly opposite. For instance, though section 39 states that no journalist shall be compelled to disclose the source of his/her information, there is the claw back proviso that if the person who gave the information consents or a court of law so orders, then the information source must be revealed. The statute also provides for the licensing of journalists and appointment of members of a Media Council and Disciplinary Committee.38 It also gives the minister in charge of information wide powers to intervene in decisions of the Council and Committee by virtue of sections 11(2), 41(3) and 47. Sections 16-18 and 29 of the Statute require that anyone who wishes to practice journalism in Uganda must possess a formal qualification in journalism, while sections 17, 27 and 28 set out the licensing procedure for journalists. Among other things, a journalist must apply for full membership of the Uganda Journalists Association and, if accepted, pay a prescribed fee, be registered, and issued with a certificate of enrolment. Finally, he/she must apply to the Media Council to be entered into the roll of journalists before being permitted to work in Uganda. Thus, a Ugandan journalist is at risk of arrest any time he/she sets out to work without a practice license or certificate. This amounts to prior restraint because such a journalist is unlikely to seek information as aggressively as one who needs no licensure. Worse, the license must be renewed annually on payment of a fee with the implication that journalists who fall out of favour with authorities may have their careers cut short by mere denial of a license. Moreover, the requirement that all journalists in Uganda must become members of Uganda Journalists Association flagrantly derogates the right to freedom of association under the country’s constitution. SECTION B ECONOMIC CLIMATE AND THE CHALLENGES OF MEDIA OWNERSHIP, DIVERSITY AND PLURALISM IN EAST AFRICA It is an acknowledged reality that the economy plays a crucial role in the development of the media in any society. So, of immediate interest in this section are two questions: (a) how have the economies of East African countries performed in the 1990’s in terms of structure and growth or decline? and (b) how have their performance been reflected in the growth and diversification of the media industry? These questions are important because they point to a number of other sub-themes such as audience segmentation, diversity, and ability to consume media products.39

38 39

Sections 9, 12 and 31 of The Press and Journalists Statute of 1995. Odhiambo, Lewis O. (1991), “Development Journalism in Africa: Capitulation of the Fourth Estate?” Africa Media Review Vol. 5 No. 2, pp. 17-29.

22 Regional comparative data on key variables are scanty, but the World Bank 40 has recently published some data that, even though crude, have the advantage of being comparative. The data have other limitations in that in some variables of interest they don’t give us trends in economic performance throughout the 1990s. The largest economy in the sub-region was Kenya’s with a gross national product (GNP) of US$10.6 billion in the late 1990s compared to Uganda’s US$ 6.8 billion and Tanzania’s US$ 8.0 billion. However, Kenya’s economy all but stagnated during the 1990s, having recorded negative growth in the mid-1990s and closing the decade at an annual growth rate of only 0.5 per cent for the year 1998-99. In comparison, Uganda’s and Tanzania’s economies recorded impressive expansion with the former registering an annual growth of 7.7 per cent and the latter 5.6 per cent for the year 1998-99. But these figures mask the relative poverty of these countries. Whereas Kenya’s per capita gross national product stood at US$ 360 ranking it 83rd among world economies listed in the World Bank report, Uganda’s and Tanzania’s per capita GNPs stood at US$ 320 and US$ 24041, respectively, ranking them 99th and 94th. So, while the Kenyan economy, for all intents and purposes, practically stagnated throughout the 1990s, showing a growth rate of just .01 per cent in 1998-99, those of Uganda and Tanzania showed impressive overall growth at 4.8 per cent and 3.1 per cent, respectively, though such growth happened at such dismally low levels that they made virtually no difference to the lives of the people of the two countries. In fact, poverty indices clearly reflect this. While the proportion of the Kenyan population living below the national poverty line was 42.0 per cent, similar proportions for Uganda (55.0%) and Tanzania (51.1%) were significantly higher. That is not to say, though, that Kenyans were substantially well off. When these figures are standardized by defining the proportion of national populations in terms of those living below US$ 1 per day, then Tanzanians would appear to have been better off with 19.1 per cent of them compared to 26.5 per cent of Kenyans and 36.7 per cent of Ugandans living on only US$ 1 a day. Data for the distribution of income and consumption also show that overall, the economies of the three East African countries were considerably similar, with Kenya having an average Gini index of 35.4 compared to Uganda’s 39.2 and Tanzania’s 38.2 during the decade of the 1990s. Moreover, income and consumption in the three countries was heavily skewed in favour of the richest 20 percent of the population. Thus, the percentage share of income and consumption for the poorest 20 per cent of the population of Kenya was a mere 6.7 per cent compared to Uganda’s 6.6 per cent and Tanzania’s 6.7 per cent, while that of the richest Kenyans was 42.3 per cent as Uganda’s stood at 46.1 per cent and Tanzania’s at 45.5 per cent. Perhaps one of the most important factors that influence media consumption is education. Kenya’s public expenditure on education as a percentage of GNP declined from 6.8 per cent in 1980 to 6.5 per cent in 1997. In fact, even though the country’s annual population growth rate was over 3 per cent during the decade, the net primary school enrolment ratio (i.e., the percentage of the relevant age group attending school) declined from 91 per cent in 1980 to 65 per cent in 1997; for secondary school the ratio remained practically the same at about 60 per cent over the same period. That is to say that a very large proportion of Kenyan children who should have been in school were not
40

The World Bank (2001), World Development Report 2000/2001: Attacking Poverty. Washington D.C.: The World Bank. 41 The data are for mainland Tanzania only.

23 attending school. Though comparative data for Uganda were unavailable, the country’s public expenditure on education as a percentage of GNP was much lower than Kenya’s, standing at 1.3 per cent in 1980 and 2.6 per cent in 1997. Tanzania also had an inferior primary school net enrolment ratio with only 68 per cent of children who should have been in school actually attending, a figure that had declined to a mere 48 per cent by 1997. With such low government expenditures on education, it can be assumed that school enrolment was similarly low in both countries. Two key indicators of the quality of life of a nation’s population are infant mortality rate and life expectancy at birth. Overall, child mortality has declined worldwide over the last decade, but declines in Eastern Africa have been significantly slowed by general poverty, which undermines government’s ability to invest in the health sector, and the advent of HIV/AIDS. For instance, Kenya’s average annual expenditure on health as a percentage of GDP during the period 1980-89 was 2.2 per cent and its child mortality rate was 75 child deaths per 1000 live births in 1980 and 76 in 1998. Uganda’s expenditure on health for the same period averaged 1.8 per cent whereas its child mortality rate declined from 116 to 101 children per 1000 live births, while Tanzania’s average expenditure on health was 1.3 per cent during the period 1980-98 and its child mortality rate declined from 108 to 85 child deaths per 1000 live births during the period 1980-98. At the same time, the proportion of Kenyan children who died before attaining age five increased from 115 per 1000 in 1980 to 124 per 1000 in 1998. Comparable figures for Uganda were 180 in 1980 and 170 in 1998, while for Tanzania they were 176 and 136 for the respective years. This comes as no surprise since the proportion of children under five years of age who were classified as malnourished during the period 1992-98 were 23 per cent in Kenya, 26 per cent in Uganda and 31 per cent in Tanzania. Meanwhile, in 1998, Kenyans could expect to live for an average of 51 years from birth in 1998 (having declined from 57 years in the late 1980s mainly due to the effects of HIV/AIDS), Ugandans 41.5 years and Tanzanians 47 years. It is often argued that most of the expenditure on media products and communication gadgets come from disposable household incomes. A rough indicator of the availability of such income is per capita growth in private consumption. During the period 1980-98, the annual per capita growth in private consumption in Kenya was only 0.2 per cent, i.e., virtually non-existent. While Uganda fared better during the period with an annual per capita private consumption growth rate of 1.2 per cent, Tanzania recorded zero in this index. The average per capita growth rate for low-income countries was 1.4 per cent. Thus, only Ugandans seem to have had disposable incomes they could spend on communication gadgets and mass media products in the 1980s and 1990s. Table 1: Communications, Information and Related Technology.
Daily Television Newspapers/ Radios/ Sets/ 1000 1000 1000 Country People People People 1996 1998 1998 Kenya 9 104 21 Uganda 2 128 27 Tanzania 4 279 21 Source: Compiled from The World Bank, 2001. Telephone Mainlines/ 1000 People 1998 9 3 4 Mobile Phones/ 1000 People 1998 0.0 1.5 1.0 Internet Hosts/ 10,000 People Jan., 2000 0.20 0.06 0.06 Personal Computers/ 1000 People 1998 2.5 1.5 1.6

24

In fact, in 1996, there were only 9 newspapers for every 1000 people in Kenya, two in Uganda and four in Tanzania. Two years later (1998) there were 104 radios in Kenya for every 1000 people, 128 in Uganda and 279 in Tanzania. Meanwhile, Tanzania and Kenya had 21 television sets for every 1000 people in 1998 while Uganda had slightly more (27). Conventionally, the development of communications infrastructure, particularly in terms of telephone mainlines, has preceded the growth of other communication networks such as personal computers and the Internet. Kenya with a significantly higher concentration of telephone mainlines maintained a slight edge over her neighbours by having more Internet hosts per 10,000 population and more personal computers. But Uganda had relatively more mobile telephones. That Tanzania had more than double the number of radios per 1000 population than Kenya and Uganda is significant and may be an outcome of history and linguistic homogeneity (Kiswahili). In addition, the fact that it has caught up with Kenya42 in the number of television sets per 1000 population speaks to the fast growth of media of mass communications in this country with one dominant indigenous language, Tanzania mainland having introduced domestic television services only in the late 1990s. Given the performance of the economies of East African countries as outlined above, a number of implications arise with regard to challenges of media ownership. For a start, the general poverty of the population and the size and sluggishness of the economies implies that the state must play a much higher role in the development of the media than would otherwise be called for. In fact, to-date, only state-owned corporations are in a position to offer nationwide broadcast coverage in the three countries, although in Kenya the potential is there for the Nation Media Group to do so. That it has not been given nationwide broadcast frequencies is a matter of politics and the political economy of the mass media in Kenya. Politics because there is perception in ruling circles that the Nation Media Group, dominated as it is by members of one ethnic group, and having demonstrated clear anti-government inclinations in their newspaper columns and broadcasts (both television and radio), as crusaders for anti-government groups, should not be granted official frequencies for their crusades. Similar difficulties have, however, faced other pro-establishment broadcasters, e.g., Royal Media Group, whose VHF and FM radio licences that were grated in 1997 and later revoked for unclear reasons have remained controversial. It is clear that much of the difficulties facing new entrants into the broadcast sector have to do with unclear and undeveloped regulatory policies in the broadcast sector. Whereas the sector has been significantly liberalized in the region as a whole, other than in Zanzibar where rules of entry have not changed and where media regulation and obstacles to freedom of expression are most stiff (see above), no clear policy guidelines have been put in place to manage such liberalized media and communications sector. This has left the sector chaotic and open to manipulation by politicians and large investors who would wish to establish oligopolies. On the other hand, many applicants for broadcast licenses appear to do so simply for speculative purposes. In Kenya, over 24 licenses for FM radio broadcasting have been issued (all but two based in Nairobi), but only a dozen or so are operational. While some applicants have sold their licenses to religious groups for religious broadcasts, others have attempted to sell theirs to established media houses, a practice that

42

Television was introduced in Tanzania only in the 1990s in contrast to Kenya where it was introduced in 1964.

25 contravenes anti-monopoly laws. Meanwhile, 15 television stations have been licensed, all of them based in Nairobi, though the majority are still unoperational. On the whole, without the development of appropriate policies and regulatory mechanisms in the Eastern Africa region, there will be limited diversity and true pluralism in the broadcast sector, since economies of scale will dictate that capital cities such as Nairobi, Dar es Salaam and Kampala and, to a lesser extent, other larger towns will attract most of the private sector investments in the media indstry. What is clearly emerging from liberalization of the media and communications markets is a rapid incursion of multinational and other broadcast networks into local markets, notably by European and South African companies. In addition, many FM radio stations are emerging that merely rebroadcast programs from foreign stations, a trend that is also being increasingly replicated by state-owned national broadcasters in their bid to compete with the more glitzy small private broadcasters. On the whole, no true community radios have emerged in this region as envisaged by Windhoek I. The position is, however, radically different in the print media sector where the advent of political pluralism in the region in the 1990s has seen hundreds of new entrants into the newspaper and magazine market. Such entrants range from political news magazines to religious and sex (quasi-pornographic) publications of all kinds. There is also more diversity in terms of ownership, from community newspapers published in rural areas to church-based house magazines that openly double in political discussions, as well as political publications sponsored by politicians and political parties. Except in Zanzibar where no single privately-owned newspaper or magazine exists, the proliferation of these types of publications is similar in Kenya, Uganda and Tanzania mainland, the latter having relatively more publications with national coverage because of the universality with which Kiswahili language is understood and spoken. A characteristic of many of these magazines is, however, their unprofessional approach to issues and design. Most of them are overtly sensational, even reckless, in their coverage of issues; many are outright seditious (according to existing laws in the countries of this region) and often defamatory. Thus, while the print sector is truly diverse and pluralistic, it is threatened by the ruthlessness and unprofessionalism of the so-called alternative press that has so incensed governments that attempts to legislate controls have been made, albeit unsuccessfully so far. SECTGION C INFORMATION TECHNOLOGY, PUBLIC SERVICE BROADCASTING, INTERNET AND LIBERALISATION In the broadcast sector, radio is still the most dominant medium, covering 90 per cent of the population of Kenya and virtually the entire populations of Tanzania and Uganda. In fact, according to the most recent survey,43 there were 6 million radios in Kenya in 1998, with 172,000 radios being sold in 1997 alone44 as the prices of radio sets continued to fall in recent years. It is common knowledge that these figures are underestimates since perhaps as much of one-third of
43 44

Government of Kenya (1998), Statistical Abstracts; Government of Kenya (1999), Economic Survey. Government of Kenya (1999), Economic Survey.

26 radio set purchases are not registered with the commercial department of the Kenya Broadcasting Corporation which issues radio permits. As reported above, altogether about 24 FM radio stations have been licensed but not all are operational, particularly those situated away from the capital city, Nairobi. At the moment, only the Kenya Broadcasting Corporation broadcasts on AM, having changed from short wave broadcasting a number of years ago. At the same time, television broadcasting and viewership is fast expanding in Kenya as new stations are registered. According to a recent Kenya Broadcasting Corporation study, there were 600,000 television sets in 1998, but again this is probably an underestimate as not all sets are licensed by the corporation. But even with this number, the implication is that household television penetration is about 10 per cent. This is impressive given that poor infrastructure such as electricity supply and co-axial cable connectivity in rural areas seriously impede access to television services. As a result many households use solar power and lead acid batteries to power their sets. Although data for Uganda and Tanzania were not available for this report, there is indication that broadcast media saturation is higher in these two countries than in Kenya, the reason being that Tanzania developed more powerful radio broadcasting infrastructure much earlier (in the 1970s, in fact). On the other hand, Uganda had a much earlier head start in the liberation of the broadcast sector than its neighbours, while its regulatory framework is also more private sector-friendly. The first full Internet service was launched in Kenya by the African Regional Computing Centre (ARCC) in the last quarter of 1995, but since then about 28 more Internet Service Providers (IPSs) have been licensed with 17 other applicants on the waiting list. As a result of the competition generated, Internet prices have steeply declined, and points of presence in most major towns and some rural areas have rapidly increased awareness of the technology. Typically, ISPs offer service packages that include dial-up and leased line services, web design and hosting as well as training and consultancy. Telkom Kenya Ltd has implemented a national Internet backbone, Jambonet, which, if fully implemented, will place 90 per cent of the Kenyan population within reach of Internet services at local rates. At the same time, international connectivity is also the responsibility of Telkom Kenya whose pricing structure, however, makes Internet services relatively much more expensive than in neighbouring countries. Current discussions between government and South African investors for the latter to buy 49 per cent of Telkom Kenya shareholding is expected to radically lower charges for international calls. Connectivity charges are much lower in Uganda though dial-up traffic is relatively lower than in Kenya. On the other hand, the development of Internet services in Tanzania mainland is not too far behind those of Kenya and Uganda but is practically nonexistent in Zanzibar. On the whole, Internet service is expanding rapidly in East Africa and now has close to 200,000 users in Kenya, most of them in Nairobi and other larger towns. The Kenya Government has concluded discussions with the Leland Initiative of USAID to roll out Internet services to the education sector through a project code-named Kenet under which 6000 schools are to be connected.

27 Some mass media houses in Kenya are already using the Internet to distribute both audio and print products. For instance, the Nation Media Group has both its newspapers—Daily Nation and Sunday Nation—as well as its FM radio services on the Internet. The East African Standard has an Internet edition, while other media using the service are The Market Analyst and Capital FM. In Uganda, The Monitor is online as well as a number of FM stations. Other information technologies that have entered the Kenyan market are datacasting services, telex, paging services, cable television, digital broadcasting, and webcasting, some of which are also in Tanzanian and Ugandan markets. Datacasting is a fast, efficient and low cost means of information dissemination for unlimited numbers of users. It uses already existing communication infrastructures such radio and television outlets either by terrestrial or via satellite. In East Africa, however, this technology is not yet being commercially exploited, though its potential for use in rural areas where switched telecommunications are not available has been recognized. Telex services are plenty in the East African countries, but only one operator is currently providing paging services over broadcast signal in each of the three countries. Cable Television Network (CTN-TV) was the pioneer and to-date the only cable company operating in Kenya where it has firmly established itself in Nairobi City. It aims to progressively penetrate the television market through co-axial cable distribution network from broadcast programming received via satellite. Meanwhile, the era of digital broadcasting began in East Africa with the establishment of Worldspace digital audio broadcasting (DAB) in Nairobi in the late 1990s to cover the Eastern Africa region, following the launching of their own satellite off the Kenyan coast in the mid-1990s. At the same time, leading streaming media companies have formed the International Webcasting Association (IWA), which is the forum for companies that are involved in the delivery of multimedia services to customers via the Internet or other networks. Public broadcasting in Kenya is the exclusive prerogative of the quasi-governmental Kenya Broadcasting Corporation (KBC), established by an Act of Parliament in 1989.45 It is the successor to the Voice of Kenya, which was a department of the then Ministry of Information and Broadcasting. The official reason for transferring broadcasting in Kenya to a parastatal was economic and consistent with government policies that called for, among other things, reductions in government expenditures through budget rationalization and personnel retrenchment,46 as well as divestiture in inefficient state corporations. But it was also in accord with public expectations of improved services and impartial coverage of national and international affairs. Section 38 of the KBC Act requires the corporation to “conduct its business according to commercial principles.” The corporation is governed by a Board of Directors whose chair is appointed by the president and other members by the minister responsible for broadcasting. To this extent, the board is hardly independent of government influence. Also, section 14 of the Act requires of the corporation that it makes “announcements or programmes of national importance, whether by sound or television,” although the corporation “may at its own discretion announce or refrain from announcing that it is broadcast at the request of the Minister.”

45 46

Broadcasting Corporation Act, Chapter 22 of the Laws of Kenya. Government of Kenya, Development Plan 1989-1993; Government of Kenya, Economic Survey, 1989.

28 The Act also empowers the KBC to levy fees for radio and television licenses as a way of raising revenue and, in August 1989, the corporation decreed that such licenses must be renewed every year. This naturally limits access to broadcast services and derogates the right to receive information. Further, the corporation is exempted from the provisions of the Kenya Communications Act 47 which provides that licensees for broadcasting are “subject to terms, conditions and limitations which the Commission may think fit” from time to time. One of the conditions limits the private licensee who wants to build a broadcast station with respect to the position and nature of the station, the purposes for which it is to be built and the persons by whom the station may be used, as well as the apparatus that may be installed in it. On the other hand, KBC was granted oversight powers over its competitors and the responsibility of advising “the government on all matters relating to broadcasting” as well as ensuring “the observation of standards of broadcasting and commercial advertisement.”48 Thus, as public broadcaster in radio and television, KBC enjoys rights which private broadcasters are denied—having its own Act of Parliament establishing it while its competitors are regulated through the Kenya Communications Act, and being exempt from rules and conditions that must be fulfilled before licensing or renewal of licence. In effect, even though the broadcast sector in Kenya has been fully liberalized, regulatory instruments are seriously skewed and retain elements of monopolistic advantages to the public broadcaster who is hardly independent of government manipulation and control. As reported earlier in this report, the broadcast sector in mainland Tanzania is regulated by the Broadcasting Act of 1993 which also establishes the Tanzania Broadcasting Services (TBS) as the sole public broadcaster providing both radio and television services nationwide. The Act also establishes the Tanzania Broadcasting Commission (TBC) which, as a regulator, also issues licences to private entrants in the sector. In Zanzibar, the sole Broadcaster is the Zanzibar Broadcasting Services (ZBS), which provides both television and radio services. ZBS was established by the Zanzibar Broadcasting Commission Act of 1997 that also regulates broadcasting as a whole on the islands. Its restrictive provisions, as indicated earlier in this report, have prevented any private broadcasters from entering the Zanzibar market. In fact, ZBS was established as the only broadcaster, and its brief is to provide “national development broadcasting” and “protect the policy, security, culture and tradition of Zanzibar.”49 Of all the East African countries covered in this report, Zanzibar has the least liberalized mass media sector and, indeed, the most restrictive media laws and regulations. On the other hand, Uganda has the most explicit protections for freedoms of expression and media. The broadcast sector is regulated by a statute enacted in 199650 with the aim of providing for the setting up of a Broadcasting Council that regulates radio and television broadcasting. In comparison with the regulatory bodies of the sister countries, the Ugandan statute is the most liberal. It requires only that any resident of Uganda who wishes to operate a radio or television station prove possession of adequate technical facilities and provide the social and cultural values of the station; no political values need to be stated. The only other requirement is that the station be
47 48

The Kenya Communications Act No. 2 of 1998. Sections 8(d) and (g) of the Kenya Broadcasting Corporation Act of 1998. 49 Section 17 of the Zanzibar Broadcasting Commission Act of 1997. 50 Electronic Media Statute No. 17 of 1996.

29 registered with the Media Council of Uganda under section 9 of the Press and Journalists Statute of 1995. SECTION D THE STATUS OF JOURNALISTS AND ORGANIZATION OF MEDIA PROFESSIONALS Perhaps the most intractable problems facing media freedom in the East African region is the level of technical skills and professionalism of media practitioners. If anything, recent political liberalization has brought to the fore what was hitherto latent, i.e., the degree of recklessness and unprofessional behaviour that some participants in this sector can display. It has been suggested that two overarching factors explain such behaviour, namely, lack of technical skills and professional commitment, and the low social status of the profession of journalism itself. This section will briefly address some of these issues. In Kenya and Tanzania (and until recently in Uganda), entry into the journalism profession does not require any formal training. A good command of language (mostly English but sometimes Kiswahili) and a knack for writing and a job in a newspaper outfit or broadcast newsroom is all that one needs to call oneself a journalist. In fact, a vast majority of journalists from the region received their skills on the job in newsrooms without any formal training although this practice is changing rapidly. Formal training in journalism in Kenya is provided at the graduate School of Journalism in the University of Nairobi where students must possess a first degree in any discipline before they can be admitted for a one-year programme leading to a postgraduate qualification in mass communication. The School is soon to launch two masters degrees, one in communication studies and another in journalism, as well as a Bachelors degree in communication studies. The other major institution for mass media training is the government-run Kenya Institute of Mass Communication (KIMC). Here entrants come with high school certificates and are awarded undergraduate certificates in print or electronic media journalism. Degree holders are also admitted for up to six-month courses leading to postgraduate certificates in mass communication. Several new entrants have also joined the field of journalism education, all of them associated with private universities that are mushrooming in Kenya. These include United States International University in Nairobi which has began a Bachelors degree programme with journalism major, Daystar University that offers a Bachelors degree programme in Christian religious communication, Catholic University and Nazarene University, both of which offer some journalism courses to undergraduate students in their liberal arts departments. The All Africa Conference of Churches runs short courses leading to various certificates in the mass communication field. There are also numerous commercial colleges that offer journalism courses, but the quality of their programmes is difficult to gauge. Tanzania’s St. Augustine University (formerly Nyegezi Social Training Institute) is probably the best known university-level educational institution for journalists in that country. In fact, many journalists in the East African region were trained there. The Tanzania School of Journalism trains

30 at the non-degree level very much like the KIMC in Kenya, offering certificate level qualifications in print and broadcast journalism as well as television and radio production. As in Kenya, there are many private sector operators in Tanzania, most of them based in the capital City, Dar es Salaam. Uganda has the Department of Mass Communications at Makerere University offering a Bachelors degree in mass communication and Uganda Institute of Journalism which offers non-degree certificates. There are also many private sector trainers in Kampala and other cities offering various kinds of certificates. Meanwhile, Zanzibar has no formal journalism training institutions, so their professionals are mostly trained in mainland Tanzania and on the job. Given the variegated backgrounds and qualifications of those working in the journalism profession and the media sector, it is no wonder that journalists tend to be ranked rather low in status in comparison with other professional crafts such as accountancy and librarianship, for instance. A reflection of this low status is the low pay and virtually indeterminate working conditions for a vast number of them. In fact, in Kenya and Tanzania, the range of salaries and benefits paid to journalists vary so much from publication to publication that it is not always possible to establish criteria used for pegging the remunerations offered by employers. Many media workers operate as correspondents with no contracts and, hence, no regular pay. Such a state of affairs exposes many of them to exploitation by media houses and news sources, particularly politicians who openly purchase publicity favours from them at a pittance. Worse still, even where there exists a strong journalists union such as Kenya, correspondents are not eligible to join because the rules of the Kenya Union of Journalists demand that members pay their monthly dues through a check-off system from employers. Thus, unemployed journalists in Kenya are virtually unrepresented even though there is no law barring them from representation by a union. Given the low status of journalists in East Africa, Ugandan Parliament moved to formally professionalise journalism. Thus, sections 16-18 and 29 of the Press and Journalists Act (1995) requires that anyone wishing to practice journalism in Uganda must possess a formal qualification in journalism and be formally be licensed by the Media Council. Moreover, membership to a journalists association is not voluntary in Uganda; a registered journalist must belong to the Uganda Journalists Association, pay a prescribed fee, and be issued with a certificate of enrolment. Thus, unlike the position of journalists in Kenya, Ugandan journalists have no freedom to belong to a voluntary association; they are coerced into enrolling into the only association allowed them by government as a condition of practicing their trade. Moreover, unlike Kenyan editors who have formed an Editors’ Guild under which they discuss matters pertaining to the professional status of journalism, Ugandan journalists have no professional association. It is not clear, however, that the low status of journalism has been vitiated by the official intervention in Uganda; if anything journalists in the country have been denied their constitutional right to freedom of association and other Ugandans the right to freedom of expression through entry qualifications and licensing. While journalists in mainland Tanzania are free to join Tanzanian Union of Journalists, their counterparts in Zanzibar have no right to join any voluntary trade union other than All Zanzibar Journalists Association whose existence must be authorized by the Minister of Information by powers conferred upon him by the Registration of News Agents, Newspapers and Books Act of 1988. Moreover, those who are qualified to belong to the official association must be registered journalists. No other professional body for journalists exists in the islands.

31

CONCLUSIONS An important benchmark for evaluating freedom of the media is Article 19 of the International Convention on Civil and Political Rights (ICCPR), adopted by the General Assembly of the United Nations vide Resolution 2200A (XXI), which provides, among other things, that “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” But the question remains: It is legitimate to expect poor and relatively young sub-Saharan nations to adhere strictly to such a standard? To the extent that freedom of expression, including that of the media, is part of the package constituting a universally acknowledged human rights standard, then yes, all countries, including sub-Saharan nations are obliged to measure up to the same standard as any other nation. It costs nothing in material terms. With regard to the East African nations discussed here, they are all signatories to the ICCPR and it is expected that they should adhere to international conventions to which they are signatories. This means that they must incorporate such conventions into their local legislations so that citizens may enjoy them and/ or have means of seeking legal redress in the event of their violation. To the extent that such legislations have not been effected in all the East African countries implies incomplete acknowledgement by these nations of the fundamentality of the rights provided for in the convention. In contrast to the provisions of Article 19, only the Ugandan Constitution measures up to the standard set by ICCPR with respect to the right to seek and receive information. The constitutions of Kenya, Tanzania and Zanzibar fall short of the standard, not only with regard to providing for this right and protecting it, but also in terms of recognizing the rights of information media organizations per se. The second shortcoming of constitutional protections of freedom of speech as provided for in the countries under discussion is that they have no provision that protects against promulgation of laws derogating the spirit of freedom and independence of the media. In fact, the Ugandan constitution specifically empowers parliament to make laws prescribing the classes of information that can be accessed and procedures for accessing such information. The implication of the lack of constitutional protection against promulgation of laws limiting freedom of expression for the media and journalists is that the rights and freedoms provided in the Bill of Rights assume the form of privileges to be enjoyed at the pleasure of government authorities and other organs of the state. Consequently, courts in East Africa have been more inclined to uphold the supremacy of penal code provisions that contradict constitutional rights of citizens and, in so doing, have created the tradition whereby individual freedoms are always deemed as subordinate to the exigencies of maintaining law and order. The corollary to this is that with respect to disputes involving journalists and the media, courts have tended to protect the interests of the state and the politically powerful rather than those of the public as expressed in the rights of the media as public watchdogs. That is, courts have not properly recognized their role as guardians of fundamental (constitutional) rights where these clash with ordinary rights of individuals (e.g., in defamation cases involving public officials).

32

Following from the above, it is necessary to review with the view to repealing or radically reforming several statutes that are still in place in the law books of East African countries that are clearly out of sync with modern-day governance. For instance, the Books and Newspapers Act (Kenya), the Newspapers Act (Tanzania), the Registration of News Agents, Newspapers and Books Act (Zanzibar) and the Press and Journalists Statute (Uganda) should all be repealed or radically reformed. The Kenyan, Tanzanian and Zanzibar acts give police virtually unlimited powers of search and seizure which political and administrative authorities have wantonly applied to persecute journalists and publishers they happen to disagree with. Moreover, the Ugandan statute and the Zanzibar Act create institutions that are best left to journalists themselves to create, such as the official Uganda Journalists Association, and the All Zanzibar Journalists Association. Moreover, in requiring journalists to belong to these associations, their freedom of association is denied. In the Ugandan case, to require journalists to have formal qualifications in journalism is to abrogate a fundamental tenet of the constitutionally guaranteed freedom of expression. Such other statutes as the Film and Stage Plays Act (Kenya) which amount to unreasonable impositions that are practically out of tandem with contemporary morality and technological realities should be repealed. And so should statues that provide for such offences as criminal contempt of court (that allows judges to punish those who question their decisions), incitement to disobedience, rumour mongering and false news, and Official Secrets Act offences. These are quality control issues that can be adequately handled through adherence to national codes of ethics for journalists and enforced by self-regulating and independent media councils. The same goes for the Preservation of Public security Act (Kenya), National Security Act (Tanzania), and National Security Act (Zanzibar) which, as they are at the moment, have been wantonly used to deny access to journalists and media during officially decreed emergency situations, and whose net effect is to give government unlimited censorship rights. A key pillar of the spirit of Windhoek I was the establishment, maintenance and fostering of an independent, pluralistic and free press as an essential component of the development and maintenance of democracy. This study has established that, indeed, the print media has generally flowered into a truly plural and diverse sector, even though the quality of many of the new publications is poor. On the other hand, even though the broadcast sector has been practically opened in all the East African countries other than Zanzibar, true diversity has been hampered by three principal factors: 1. Public broadcasting, though devolved to state corporations, have not been given full managerial independence and editorial autonomy. In fact, members of their boards of management have continued to be government appointees, and they have functioned in practice as government departments. 2. Following from the above, public broadcasters have been given undue advantages over private broadcasters in terms of frequency allocation and geographical area of coverage. And to the extent that private broadcasters are denied the right to national coverage, their potential revenue bases have been limited by statute, with implications for their ability to perform. 3. The poor economic performance of East African nations during the 1990s restricted the expansion of the broadcast sector to such an extent that most new entrants tended to be affiliates of foreign-based broadcasters, especially from Europe, South Africa, and U.S.

33 multinationals. This is a recipe for concentration in the broadcast sector and vertical integration in the mass media sector in these countries. Other problems facing the broadcast sector have been poor information infrastructures, lack of communication policy frameworks against which privatisation of the sector was to be effected, political patronage and corruption in the allocation of frequency spectrums, and poor understanding of audience characteristics and capacity to consume broadcast media products. Lack of policy frameworks has been particularly pivotal because in the absence of policy direction, authorities in charge of administering the privatisation process have simply interpreted their role as that of regulating the broadcast sector, thus hindering its expansion organically. The importance of a policy framework for the development of the mass media sector is further underscored by what may be regarded as government’s principal role in ensuring growth and stability in the sector, i.e., development of communication and information infrastructures. Modern media of communication depend heavily on availability of telephones, co-axial cable connectivity, and reliable electric power. Their expansion and affordability are directly determined by cost and efficiency factors in the telecommunications and power sectors and, hence, the need to rationalize the operations of these sectors with the view to making them more accessible to potential investors in the media industry as well as to consumers of media products. To this extent, Kenya is likely to maintain its lead in the expansion of Internet services and, hence, computer-based distribution of mass media products. On the other hand, Zanzibar with its restrictive policies and protectionist legislation still has far to go in meeting the expectations of Windhoek I. Finally, journalists are still to achieve the full status of other professionals in virtually all East African countries. Although they enjoy relative freedom of organization and association in Kenya, their working conditions and terms of service are hazardous. They not only face physical danger in troubled spots that dot the Kenyan landscape from time to time, they also face arbitrary arrest under laws still existing in the statute books whose overall effect is to limit freedom to work as a journalist. Meanwhile, Uganda and Zanzibar, by legislating the establishment of official journalists associations, have practically abrogated journalists’ basic human right to freedom of association. Further, by requiring entry qualifications for journalists, Uganda has denied other citizens the right to free expression in any form, which should include correspondence in newspapers and the broadcast media. On the other hand, it is encouraging that media professionals in Tanzania have established, while those in Kenya are in the process of establishing, their own code of ethics to be enforced by independent media councils. This is a welcome departure from Uganda where the code and council are officially established and supervised. Zanzibar could do well to follow the example of Mainland Tanzania in this regard.

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