Media and Human Rights in Kenya: A Delicate Balance of Freedom and Ethics

Human Rights

The idea that human beings should have a set of basic rights and freedoms has deep roots in Britain. Landmarks in Britain include the Magna Carta of 1215, the Harbeas Corpus Act of 1679 and the Bill of Rights of 1689. The atrocities of the Second World War made the protection of human rights an international priority. 

The formation of the United Nations paved way for more than 50 member states to contribute to contribute to the final draft of the Universal Declaration of Human Rights adopted in 1948.

What are Human Rights?

According to John Locke (1632-1704), human rights are absolute moral claims or entitlements to life, liberty, and property.

Virginia Declaration of Rights in 1776 proclaimed that all men are by nature equally free and independent and have certain inherent rights, of which, when they enter a state or society, they cannot by any compact, deprive or divest their posterity.

Human Rights are simply rights, such as freedom from unlawful imprisonment, torture, and execution, regarded as belonging fundamentally to all persons.

Human Rights in Kenya

Human rights in Kenya is found in chapter 4 of the Kenya constitution and is an integral part of Kenya democratic state and is the frame work of social economic and cultural policy. 

Its purpose is to recognize and preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of human beings.The rights and fundamental freedoms in the Bill of rights belong to each individual and are not granted by the state.The rights are subject only to the limitations contemplated in the constitution.

Some of the Human rights in provided for in the 2010 constitution are the right to life, the right to privacy, freedom of expression, freedom of assembly, demonstration, picketing and petition, freedom of the media, slavery, servitude and forced labour, freedom of association, access to information, freedom of conscience, religion, belief and opinion, human dignity, equality and freedom from discrimination, labour relations, environment, economic and social rights among others.

The Freedom of the Media in Kenya

In Kenya the freedom of the media is provided for in the constitution Article 34 of Chapter 4, which states that; the state shall not exercise control over or interfere with any person engaged in the broadcasting the production or circulation of any publication or dissemination of information by any medium. 

The State shall not penalize any person for any opinion or view or the content of any broadcast, publication or dissemination.  Broadcasting and other electronic media have freedom of establishment subject to onlylicensing procedures that are necessary to regulate air waves.

All State owed media shall be free to determine independently the editorial content of the broadcasts or other communications, be impartial and afford a fair opportunity for the presentation of divergent views and opinions.

1. Media and Gagging in Kenya

Gagging means preventing the media from speaking out what the government is unpopular with. The media have had their fair share of challenges in the last five years due to several attempts to curtail the freedom of journalists. The national assembly passed laws that have targeted the media with retrogressive clauses. This was after the media published reports criticizing the government’s response to the deadly attack at an upscale Nairobi mall. This has forced vibrant Kenyan media industry to owe its survival to courts and strong lobbies.

2. Media and the Right to information

The public has the right to be informed on day to day happenings in the country. The media gathers information and disseminates to the public. However, not all information is fit for dissemination but should be of good taste and of public interest. 

The media refrains from giving misleading and harmful information. Such information may be such as violent pictures and video that may radicalize recipients into the vise, bloody scenes or even dead bodies.

The challenge of brown envelops from powerful and influential people in Kenya also have seen most information killed by some journalists and editors. For example the government gets access to loans but the public is not informed about it until the opposition government takes that role. 

Information must be of benefit to the public in order to be disseminated; any information relayed to the public must be of substance in that it offers recommendation to problems and assurance for follow up. In this sense relevant authorities must be involved in order to push the government to take action on tangible issues. 

3. Media and the Right to Privacy

The Kenya Information and Communications Act (2009), penalizes the unlawful interception of communications by service providers. There are interviewees who need anonymity or to be disguised since the information they relay is termed as classified or sensitive. For example, witnesses of murder, rape, and top level corruption that fears for their lives.The media should respect the decision of news sources to remain private even if it means covering their faces.

4. The Media and the Right to Equality and freedom from discrimination

The media focuses on balancing their content so that they minimize racial, age, sexual and tribal bias.For example, nowadays the broadcasting televisions accompany news anchors with sign language interpreters to assist the viewers with hearing impairment.However, the sign language interpreters’ glamour on TV is normally short-lived as they don’t appear in other programs.

Media ethics dictate that sources of news should be treated equally in terms of race, gender, age, religion, disability, physical appearance or social status. For example, it will be unjust for a journalist to conclude that a suspected, Kenyan Luhya in a maize scandal stole maize without making a follow up.

5. Religion conscience, belief and opinion

Every person has the right to manifest any religion or belief through worship, practice, teaching or observance of a day of worship in Article 32 of the Kenyan constitution. The media tries as much as possible to ensure that every opinion counts regardless of ones’ religion or belief.

The media sensors sensitive content and also refrain from what may be termed as hate speech towards a certain group of political affiliation, religion or belief.However, the media in Kenya gives lesser airtime to Muslims and air Christianity programs on the extremes especially on Sundays. 

Also the media fails to educate the public that not all Somalis and Muslims are terrorists but it is mainly Muslim extremists who choose that path. 

6. Rights of arrested persons

The media informs the public on law breakers through court stories in order to push the government for affirmative action such us punishing them. 

This is done after follow up to ensure that the court has pronounced them guilty. Therefore, an arrested person is ever a suspect until pronounced guilty by the court of law. For example, the broadcast media normally use terms such as “the suspect”, “the alleged murderer” for arrested persons.

7. Freedom to assembly, demonstration picketing and petition; 

Article 37 of the constitution provides Kenyan citizen with the right to peaceably, and unarmed, to assemble, to demonstrate, to picket and to present petitions to public authorities. 

The Kenyan media provides coverage and airtime for institutions that call for peaceful demonstrations and create developing stories on prolonging demonstration. An example is the ongoing nurses’ strike. The media covers court proceedings on petitions by the institutions which contribute to government authorities taking popular judgments. 

However, the media sometimes tend to focus more on the mass action when the situation turns ugly. For example, when the rioters start fighting with the police the media become so keen on capturing the event.

8. The Kenyan Media on Human dignity

The Kenyan media constantly disguises victims of rape, for instance, since after the trial of perpetrators the victim’s life will have to continue. They will need to be loved and respected and therefore their pictures are normally censored during on camera interviews. Stories on violence are usually meant for the exposing of the crime perpetrators and advocating for fair trial and rehabilitate the victims, but not to stare at them.

To minimize harm ethical journalists treat sources, subjects and colleagues as human beings deserving respect. Journalism becomes sensitive when seeking or using interviews or photographs of those affected by tragedy or guilt. This is to protect individuals, juvenile suspects or victims of sex crimes.

9. The Kenyan Media and Right to freedom and security of persons

Article 29 provides for the right not to be deprived of freedom with a just cause or detained without trial. The media ensures sources of sensitive information such as witnesses of extrajudicial killings; top level corruption and violence are not exposed to the public in a way that the crime perpetrators will know them and possibly endanger their lives. The media is also a link between the witness and the police in case they needed to be put under surveillance.

10. Freedom of expression

Article 33 of Chapter 4 in the Kenyan constitution states that everyone has a right to seek, receive or impart information or ideas, freedom of artistic creativity, academic freedom and freedom of scientific research.The media ensures what they feed the public with does not extend to propaganda of war, incitement to violence, hate speech or advocacy of hatred that constitutes ethnic incitement. 

However, in the course of informing the public about public icons who propagate hate towards a certain group of people, it only leaves the public to judge and know how to treat each other probably igniting another situation.

11. Media and Censorship

Gatekeeping in news production see some contents that are deemed to be of bad taste and harmful killed.This prevents that they could have caused to the target audience or any other consumer of news materials.Some that make it to air might be due to human error, for example the bloody scenes that made it to the front page of the daily nation during the Westgate terror attack.

Drawbacks of the Media on Human Rights

1. Defamation and Accuracy of Information

Different media houses in Kenya have faced law suits due to failure in providing evidence to allegations of the information they offer, most of whom are bloggers. Lack of evidence deduces that the accuracy of the information is questionable. The emerging prowess of social media and bloggers in giving first-hand information to the public tempts that mainstream media to entirely rely on trendsetters on news that later may be proven fake.Lack of evidence and accurate information have seen journalists and media houses sued for defaming public figures.

2. Infringement on Privacy

Journalists, in fear of being sued for defamation, record unsuspecting interviewees for evidence. There is as an unclear understanding on when a journalist should record an individual secretly hence invasion of private space.

3. Advertising and Infringement of Human Rights

As much as advertising tries to remain true, respect age, to give harmless products and maintain proper tactics, there have always been shortcomings in the long run.

• Unfair regulation on media airing of harmful products; for example, cigarettes adverts are only permitted on specific media, excluding TV and radio while alcohol adverts are allowed on all media.
• Advertising tactics; provide additional ethical challenges. Advertisers have a range of less-than-ethical yet legal tools at their disposal, including subliminal advertising, emotional appeals, taking advantage of less educated individuals, spreading propaganda for political campaigns. Sadly, consumers embrace these products unknowingly.
• Advertising to Children; It has not been easy for the media to ensure that children don’t view or read adverts they have restricted. For instance, some parents fail to restrict their children from watching adult programs and this is where most media have placed sensitive adverts.
• False advertising; arising from exaggerated content has made the society believe too much on the unachievable. For instance, people are tempted to imagine when they use body lotion; they will transform to look exactly like the models who act the creative adverts.
• Sexual appeal in advertising; nowadays the media uses props and skits that reveal much of the human body to keep the people glued to their adverts creating more perverts in society. Examples are ladies and men wearing body lotion applying them sensually on bare chests, backs and legs.

Conclusion

A right or fundamental freedom in the bill of right can only be limited by law, and only to the extent that the law is justifiable in an open and democratic society based on human dignity, equality and freedom taking into consideration factors such as the importance of the purpose and the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not infringe those of others. The media can best operate within the stipulated measures and law as in the constitution. 

Authors of This Article 

1. Clinton Wanjala
2. George Misati Nyamwari
3. Bauldwin Otieno Mulor
4. Blaise Stephen Nita
5. Darren Dimbidi 
6. Antony Rugendo