Measures could severely inhibit media freedom, expand surveillance powers
The International Press Institute (IPI) expressed concern that a security bill Kenya's Parliament is expected to vote on today could severely inhibit media freedom.
Kenya's Security Laws (Amendment) Bill 2014 would, among other measures, expand intelligence agency surveillance powers. Several provisions would restrict media coverage of terrorist acts in Kenya, potentially inhibiting journalists seeking to report on matters in the public interest from doing so.
"Lawmakers must be careful that, in reacting to legitimate concerns for public security, they do not hastily overreach and unnecessarily trample Kenya's citizens' fundamental human rights to share and receive information," IPI Senior Press Freedom Adviser Steven M. Ellis said. "This lengthy and wide-ranging bill has far-reaching implications, many unrelated to security concerns. We urge lawmakers to postpone consideration to allow adequate public debate and to ensure that any legislation considered is fully in line with Kenya's Constitution and its international obligations."
The legislation, which was hastily published on Dec. 10, is 90 pages in length, introduces 109 new provisions and amends 21 pieces of existing legislation. It came on the heels of two recent attacks in Kenya by the Al Shabab militant group: a Nov. 22 attack in which militants stopped a bus near the border with Somalia and killed 28 of its passengers, and a Dec. 2 raid on a quarry in northern Kenya in which at least 36 workers were killed.
Following the second attack, President Uhuru Kenyatta accepted the resignation of police chief David Kimaiyo and replaced Interior Minister Joseph Ole Lenku with retired Major General Joseph Nkaissery.
Kenyatta and his administration have faced increasing criticism over the way in which security issues have been handled in the country since Al Shabab gunmen killed at least 67 people during a four-day siege on Nairobi's Westgate mall in September 2013. Kenya's The Daily Nation newspaper reported allegations that Kenya Defence Forces soldiers botched a rescue operation that may have resolved the siege more quickly. The newspaper also reported, in another article originally published on Sept. 28, 2013, that government officials may have had warning about the attacks before they happened.
An analysis of the Security Laws (Amendment) Bill 2014 provided by the Media Council of Kenya identified eight proposed amendments that carry the potential to undermine freedom of expression and information rights guaranteed under Kenya's Constitution and under international human rights instruments.
According to the analysis, one problematic amendment would criminalise "the publication of obscene, gory or offensive material likely to cause fear and alarm to the general public or disturb public peace". The provision would raise the offence from a misdemeanour to a felony punishable by up to three years in prison and a fine of up to one million shillings (approx. €9,000). If the offence is committed by a "media enterprise", the fine could be as high as five million shillings (approx. €45,000).
Another troubling amendment would criminalise "intentionally insult[ing] the modesty of any other person by intruding upon that person's privacy", an offence that would carry a prison sentence of up to 20 years.
The Media Council of Kenya's analysis noted that not only did these and other measures in the legislation contain vague language and undefined terms that were not sufficiently precise, but the penalties for these infractions were disproportionately harsh. The analysis also questioned "how 'modesty' is a matter of national security meriting inclusion in a Securities [sic] Law Amendment Bill".
Another amendment in the bill would criminalise uttering or publishing any statement "that is likely to be understood as directly or indirectly encouraging or inducing another person to commit or prepare to commit an act of terrorism". The measure includes neither a requirement to prove a causal link between the utterance or publication and an act of terrorism, nor an element that the speaker or publisher intended to incite such an act. The Media Council noted that the provision could prevent anyone who wishes to make a fair comment on statements attributable to others from doing so.
The broadcast of images or information that undermine "investigations or security operations relating to terrorism", would also be prohibited and media would be required to obtain the permission of victims and the National Police Service before publishing or broadcasting images of victims of terrorist attacks. The Media Council cited these provisions as "highly likely to be used by public officials to prevent any criticism of the way in which the authorities handle terrorist attacks".
Further, the bill would amend the Prevention of Terrorism Act, granting national security agencies undefined powers to intercept and monitor communications deemed necessary for disrupting or preventing terrorist activities.
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In a joint statement, 11 organisations active in defending human rights in Africa criticised the bill, commenting: "[Freedom of Expression] carries with it the right of the public to be informed on matters of public concern, including terrorist acts and threats, as well as the response by the state and international organisations to them. The fight against terrorism should not be used as an excuse by states to restrict the freedom of the press."
Victor Bwire, deputy CEO and programmes manager of the Media Council of Kenya, told IPI by email that such laws were unnecessary in Kenya, especially insofar as they related to media.
"[The Security Laws (Amendment) Bill 2014 is] an outdated, oppressive law that is meant to suppress media freedom in the country," he said. "It is ill-advised and meant to curtail freedom of the press and harass journalists, and contains provisions that are only relevant when a country is in a state of emergency. The provisions relating to media practice are informed by a government that is afraid of criticism and which views anybody asking questions as an enemy."
