Media freedom subject to the law

Oct 23, 2002

I have found it necessary to respond to Joe Oloka Onyango’s response to my article on freedom of the media

By Chibita wa Duallo

I have found it necessary to respond to Joe Oloka Onyango’s response to my article on freedom of the media. This response is because he raised issues, pertinent to the current debate on the limits of media freedom.
It is important that Oloka acknowledges that no freedom or right is absolute. He also agrees that the State’s encounter with The Monitor is not the beginning of government’s assault on media freedom, but another routine enforcement of the law. He also agrees, though grudgingly that the USA has enforced some media regulation in the interest of national security.
However, judging from recent press outbursts, it is clear some people still doubt the fact that rights and freedoms are not absolute. To put this matter to rest, we need to remember that even the ultimate right, the right to life, is also not absolute. There are several offences, which attract the death penalty.
The right to life can be taken away if one is convicted of an offence that attracts the death penalty. Indeed, people have been executed under this law. Every month people are sentenced to death under this law notwithstanding that the Cons-titution declares that there is a right to life.
The Penal Code contains offences, which, if committed, would lead to sanctions being placed against the offender. When an Editor or a reporter is arrested for publishing false news, I do not see how media freedom is threatened because the law as it is, is being enforced. Neither can we say that just because one murderer has been hanged therefore the right to life is under threat.
The only argument that could hold water is if there are people opposed to capital punishment who lobby and fight against legislation that imposes the death penalty. Until that law is changed, one cannot be surprised that criminals are routinely sentenced to death and actually hanged! As long as there is a law against publication of false news, as long as there are legal limits to absolute media freedom, nobody should be surprised when media practitioners are charged under those laws. (Unless, of course, we are looking for another version of the Enguli Act, which, it has been said, is honoured more in breach than observance).
The most prudent action would be for media practitioners and those interested in expanding the boundaries of media freedom to mount a sustained campaign for reform of the law. Why have media practitioners and their sympathisers todate failed, refused or neglected to have this law amended or declared unconstitutional?
Oloka rightly avers that there must be an objective testing of the proposition that a newspaper story is actually false, or that it has caused alarm to the public. Indeed it is the Judiciary to make that test. However, the Judiciary cannot move itself to decide on a matter that is not brought before it. Before the judiciary can decide whether the news published was false or alarming, somebody has to complain and bring an accused person before it. This duty most times falls on the Police.Before a suspect brought before the judiciary, there has to be an arrest and an investigation. The Monitor incident is one of the first times the police are being blamed for investigating a matter for long. We are always complaining about the police hurrying to arrest without thorough investigations.
Are we so accustomed to arrests before thorough investigations that when investigations are done for a long time we have to complain? And does one week amount to a long time? It may be long for a newspaper not to run but it is not too long as far as investigations are concerned.
The matter of the Monitor is now before the judiciary to determine, using the objective test aforementioned. Whether the news published was false, whether it was prejudicial to national security etc should soon be established.
I do not think there is a problem there. It is true that the law provides that arrests and searches have to be done with warrants. However, there are exceptional circumstances when police officers can arrest and search without a warrant.
The only problem with this whole debate on media freedom is that we in the media have failed to ask ourselves some important and timely questions –– Is it possible to hold on to some stories until there is ample evidence and information to run them?
Is it more worthwhile to publish or run a particular story or would it do the public and the media industry more good if the story were shelved albeit temporarily to better establish the facts?
Should the media industry not exercise self-censorship in the national interest? Would this entire hullabaloo exist had a picture of a cras-hed helicopter accompanied the story? Why were there no pictures?
Since we seem to agree with Oloka that media regulation exists in different forms, either through the law or the marketplace, when is a government ever justified to move in and regulate the press? Or are we saying there are no situations when a democratically elected government can move in and tell the press that in the wider interest of the country certain stories should not be run at a particular time?
I will end with Oloka’s illustration of a parent who disciplines a child. It will be an unwise child who after the parent has disciplined him does not stop to ask himself if he did anything to deserve the punishment. If he only stops at blaming the parent for the discipline, that child is not likely to change for the better.

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