Kenya: New Laws Would Undermine Basic Rights

Kenya's leaders and lawmakers should reject proposed laws regulating the media and nongovernmental activity that would severely undermine fundamental rights and freedoms.

The Information and Communications Amendment Bill of 2013 was passed by parliament on October 31, 2013, but has not yet been signed by the president. Another problematic draft law, the Media Council Bill, is due to be debated in parliament in the coming weeks. On October 30 the attorney general also proposed controversial new provisions regulating the work of nongovernmental organizations (NGOs), including a proposed cap at 15 percent of foreign funding.

"These new laws are an attempt to undermine freedoms of expression and association in Kenya," said Daniel Bekele, Africa director. "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."

The laws come as Kenya's human rights defenders and nongovernmental organizations are experiencing increasing hostility, harassment, and threats, particularly individuals and organizations viewed as supportive of the International Criminal Court (ICC) investigations in Kenya.

The Information and Communications Amendment Bill would amend existing media laws. It would create a government-appointed Communications and Multimedia Appeals Tribunal with broad powers to revoke journalists' accreditation, seize property, and impose hefty fines of up to 1 million Kenyan shillings (US$12,000) on journalists, and up to 20 million Kenyan shillings (US$235,000) on media companies.

The penalties could be imposed on the basis of an anonymous complaint against media outlets or individual journalists, so journalists or their organizations would not be able to identify their accusers. The provision would undermine the rights of the accused and is open to abuse by the authorities. The United Nations Human Rights Committee has said that journalists should not be subject to state licensing.

The bill also would provide only a one-step appeal process for tribunal decisions to the High Court. Under normal practice the accused could appeal to the Court of Appeal first and then the Supreme Court.

The proposed bill would also add an entirely new requirement to restrict advertising revenue in Kenyan media from foreign companies to 55 percent, which the media would be expected to implement within weeks after the bill went into effect. With numerous media organizations competing for limited advertising revenue, most of which is from government and non-Kenyan companies, the new restrictions could force some media to close down.

President Uhuru Kenyatta, who has controlling stakes in a daily newspaper and a television and radio station, should not approve these amendments. His administration should withdraw from parliament other bills that have the potential to limit fundamental rights and freedoms.

The attorney general is preparing to take to parliament the Media Council Bill, which would empower the government to ban any media content that it deems "prejudicial to public or national interest" and impose penalties against the offending organization. The bill lacks a clear definition of what constitutes national or public interest, which means that this provision could be used to censor material without any checks on the council's discretion.

Kenya's 2010 constitution requires new legislation in a number of areas. New media laws had been discussed and agreed upon by a range of those who would be affected, including media owners, editors, and government representatives. However, Jubilee Alliance party representatives in parliament added the new, controversial provisions to the draft bill on October 31 in the national assembly, one of the chambers of Kenya's bicameral parliament.

"President Kenyatta's administration should protect the constitution's guarantees of freedom of expression," Bekele said. "Jubilee should not be seen to be exploiting its parliamentary majority to pass legislation that limits fundamental freedoms and rights."

Deputy President William Ruto indicated on November 8 that the president is willing to refer the bill back to parliament so that it can reconsider the contentious provisions in the two media bills. Under Kenyan law, parliament could still force the bill through with a two-thirds majority.

The Kenyan parliament is also considering legislation that could restrict the activities of nongovernmental organizations.

On October 30, the office of the attorney published in the official gazette - the mandatory first step before a bill is introduced to parliament - the Miscellaneous Amendment Bill of 2013. This bill includes provisions that would grant broad discretionary powers to a new government body to regulate nonprofit organizations and would limit access to foreign funding for these groups.

In January, parliament passed the Public Benefits Organizations (PBO) Act of 2013 to replace the NGO Coordination Act, which has regulated nongovernmental groups. That law has not come into force because the cabinet secretary has yet to publish it in the official gazette as required by law.

The amendment would empower a new government body, the Public Benefits Organizations Authority, to "impose terms and conditions for the grant of certificates of registration, permits of operation, and public benefit organization status." The chairperson would be appointed by the president, increasing executive powers over nongovernmental groups. Critics of the law fear that the wide powers vested in the executive branch could be used to restrict nongovernmental organizations or even penalize organizations that fall out of favor with the Kenyan authorities.

The amendment would also introduce new limits on funding for nongovernmental organizations. It states that "a public benefit organization shall not receive more than 15 percent of its total funding from external donors," unless otherwise approved by the minister for finance. Funding to nonprofits would be channeled through a new Public Benefits Organizations Federation rather than directly from donors - which could create new operational difficulties for nongovernmental organizations and delays in their projects.

The governing Jubilee administration seems to be punishing civil society for its role in the two Kenyan cases at the International Criminal Court, one involving President Kenyatta and the other involving Deputy President Ruto and former radio journalist, Joshua arap Sang.

During their election campaigns, Kenyatta and Ruto criticized civil society organizations and leaders for relying solely on funding from external sources that they alleged were against Kenya's national interests. Soon after returning from a status conference at The Hague ahead of the hearing to confirm charges against him in 2011, Ruto said, "NGOs should stop interfering with government matters, writing letters to their donors abroad to support the ICC intervention and compiling reports about postelection violence. It is none of their business."

"This new law requiring nongovernmental organizations to raise 85 percent of their funding locally may well have the effect of weakening independent voices," Bekele said. "As we have seen elsewhere in the region, including in Ethiopia, these laws are an assault on basic freedoms and Kenya's citizens and leadership should soundly reject them."