New Kenyan Laws "Undermine Freedoms"

International and local human rights groups have reacted angrily to proposed new legislation in Kenya which they say is part of growing efforts to clamp down on opposition voices.

They are concerned that three bills, two regulating the media and the third on non-government groups, seem to be a response to the trials of Kenyan president Uhuru Kenyatta and his deputy William Ruto at the International Criminal Court (ICC).

Ruto is currently being tried in The Hague, and Kenyatta is due to come to trial, on charges of financing and organising the mass violence which followed the disputed presidential election in December 2007.

More than 1,100 people were killed and 650,000 others lost their homes during two months of bloodshed which brought East Africa’s leading economy to its knees.

Proceedings against Ruto and his co-defendant, former journalist Joshua Arap Sang, will resume on November 21, while the start of Kenyatta’s trial has been put back to February 5, 2014.

The first of the contentious pieces of legislation, called the Miscellaneous Amendment Bill 2013, outlines changes to the ways NGOs can operate. Published on October 30, it is due to be debated in parliament in the coming weeks.

Two other pieces of legislation concerning the media are also causing concern.

The Media Council Bill, which has been drafted but is still to be debated in parliament, would give the government powers to ban any media content it deems “prejudicial to public or national interest” and impose harsh penalties on offending organisations.

Another law, the Information and Communication Amendments Bill 2013, would give a government body powers to impose hefty sanctions on the media. The bill was passed by parliament on October 31, although the president has yet to sign it into law.

Joan Magut, project coordinator with the Transparency International group in the Rift Valley town of Eldoret, believes the legislation are a retrograde step.

“The 11th National Assembly is clearly going against the letter and the spirit of the constitution,” she told IWPR. “These bills [on media and NGOs] take the country back to the dark days where freedom of expression, association and other rights of people were violated by the state in the name of protecting government interest.”

The New York-based advocacy group Human Rights Watch has taken a strong stand on the issue. In a statement on November 12, it urged the government not to enact the legislation.

“These new laws are an attempt to undermine freedoms of expression and association in Kenya,” Daniel Bekele, Africa director at Human Rights Watch, said. “Kenya’s leaders should act swiftly to prevent these bills from becoming law, and focus on the country’s real challenges like police reform and accountability.”

Some experts are linking the new legislation to the ongoing cases in The Hague. Since the ICC began its investigations in Kenya in 2010, a number of civil society organisations have supported its efforts to deliver justice.

Some have provided intermediaries who helped ICC prosecutors identify witnesses and gather evidence against the suspects.

Kenyatta and Ruto, together with supporters of the ruling Jubilee alliance, have accused civil society groups of colluding with ICC investigators to “coach” witnesses into providing evidence that supports the charges. Kenyatta’s lawyers have asked judges at the ICC to terminate proceedings against him over claims that defence witnesses were bribed by intermediaries acting on behalf of the prosecution.

ICC prosecutors have in turn accused supporters of the defendants of intimidating witnesses.

In that context, some see the new legislation on NGOs, in particular, as a tactic by the ruling Jubilee coalition to clamp down on the NGO sector.

“The laws come as Kenya’s human rights defenders and non-governmental organisations are experiencing increasing hostility, harassment and threats, particularly individuals and organisations viewed as supportive of the International Criminal Court investigations in Kenya,” a statement from Human Rights Watch said.

It said the Jubilee administration “seems to be punishing civil society for its role in the two Kenyan cases at the International Criminal Court”.

Rights groups are particularly concerned about provisions in the Miscellaneous Amendment Bill that would subject organisations to oversight by a new government-appointed body, the Public Benefits Organisations Authority (PBOA). This would be able to impose terms and conditions for registration certificates and operating permits.

Human Rights Watch warned that if the bill is passed, it would also prevent organisations from receiving funding directly from donors. Money would instead have to be channelled through the PBOA, which could delay badly-needed projects.

NGOs would also be subject to limits on their foreign funding, with only 15 per cent of their annual budgets allowed to come from international donors.

Ken Wafula, president of the National Association of Human Rights in Eldoret, said there was no justification for capping foreign funding at 15 per cent given that there was “no local source to fund the remaining 85 per cent”.

Other critics of the NGO law fear that it will be used to curb and even penalise organisations that fall out of favour with government. According to the CSO Reference Group, an umbrella group for NGOs, the law “aims to punish a few [groups]”.

The media bills, too, have come under fire from critics who say the sweeping powers envisaged in them would restrict the rights of journalists.

The Media Council Bill would allow the government to ban content it deemed to be contrary to the “public or national interest”, but does not provide a clear definition of what that might mean. This has led to concerns that it could be used to censor material without justification.

“The provision… is open to abuse by the authorities,” Bekele said.

The Information and Communication Amendments Bill would introduce a government-appointed tribunal able to revoke accreditation, seize property, and impose hefty fines of up to one million shillings (12,000 US dollars) on individual journalists, or up to 20 million shillings (235,000 dollars) for media companies.

Since the tribunal would be able to act on anonymous complaints, journalists or organisations would be unable to identify their accusers, opening up the possibility of abuse.

Campaigners are hopeful that the Information and Communication Amendments Bill will not succeed in its current form. As a result of the outcry, President Kenyatta has promised not to sign it into law without further review.

“The bill has not formally been submitted to the president, and when it [is], the president will have 14 days in which to apply his mind and formally respond,” presidential spokesman, Manoah Esipisu, said at a press conference at State House on November 13. “I can confirm that the president will return it to parliament to ensure it conforms to the mandatory parameters of Article 24 of the Constitution.”

Article 24 of the constitution states that a right or fundamental freedom can only be limited by law “to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.

Civil society organisations in Kenya have been vocal in opposing the new laws. On November 14, they launched a petition against what they see as a campaign by the government to curtail public expression and association.

“This is being done through a legislative onslaught to suppress the media and, diminish the civic space via unwarranted state interference of freedom of association of [civil society groups] through unconstitutional bills and amendments,” the International Commission of Jurists in Kenya said on its Facebook page.

Fred Matiang’i, Kenya’s cabinet secretary for information, communications and technology, defended the government against accusations of a clampdown.

He told the media on November 4 that the executive was “not aware” of repressive clauses in the Information and Communication Amendments Bill and had no “prior knowledge” of what legislators would pass in parliament.

Matiang’i also said that freedom of the media was enshrined in the constitution and no one was going to do away with it.

Robert Wanjala is a freelance reporter in Eldoret.

This article was produced as part of a media development programme implemented by IWPR and Wayamo Communication Foundation.