OPINION ARTICLE BY ELIUD OWALO

THE MULTIMEDIA AMENEDMENT BIL, 2013 DOES NOT PASS THE TEST OF THE CONSTITUTION AND IS RETROGRESSIVE AND A THREAT TO MEDIA FREEDOM. -----------------------------------------------------------------------------------------------------------The National Assembly yesterday passed the MultiMedia Amendment Bill, 2013 which now awaits Presidential assent to become law. Just when Kenyans were still trying to come to terms with attempts by the Inspector General of Polices issuance of summonses to the StandardGroup CEO and two investigative journalists John Alan Namu and Mohammed Ali over coverage of the Westgate terror attack, the National Assembly has dropped a bombshell. Unless the President declines the invitation to sign the bill into law, we are officially headed back to the dark days of media censorship.

An eminent English writer once said, let us strike the Key note before we pursue the tune. The key note is this; the State and all its organs are not the guarantors and or providers of media freedom, but the Constitution is. There can be no gainsaying the fact that under the new Constitution the National Assembly has the sole preserve of making and unmaking National legislation. However, this power is seriously circumscribed and fettered by other provisions of the Constitution which guarantees to every citizen the freedom of opinion and conscience (Article 32), freedom of expression (Article 33), freedom of the press and media (Article 34) and right of access to information (Article 35) of the Constitution of Kenya, 2010.

Article 118 of the Constitution provides that where a right or fundamental freedom is to be limited by way of legislation (in the instant case the Multi-Media Amendment bill, 2013),such law shall state that it is expressly intended to place limitations upon the following rights. What the Multi-Media amendment Bill, 2013 does is to mischievously take away from Kenyans with the left hand what the Constitution has granted on the right hand.

The Multi-Media Amendment Bill, 2013 breaches the Constitution as it purports to establish a complaints Tribunal whose composition totally excludes the Media fraternity in terms of representation and donates to the Cabinet Secretary for Information and Communication the exclusive power of appointment of membership to that Complaints Tribunal. It also purports to control media content by providing that at least 40% of the media coverage or programs must

have local content. The Bill also purports to give powers to the Complaints Commission the powers to impose fines of upto Ksh. 20 Million and 1 Million to media stations and journalists respectively who air or carry content or coverage the state finds offensive. And I use the word State advisedly, since the membership to the Complaints Tribunal will be state appointees.

The effect of this draconian bill will be to gag the media or at the very least to intimidate the media and take away from it the freedom to investigate, air and determine what to air out of fear of recrimination or being shut down as a result of hefty fines. The Tribunal will even have powers to shut down or suspend operations of a media house or revoke the license of a journalist. Should President Uhuru Kenyatta sign this Bill into law, the Country will join the ranks of very few Countries in the world with the very dubious distinction of such a draconian law.

The proposed Act not only breach Articles 32, 33, 34 and 35 of the Constitution but also expressly breaches Article 24 of the Constitution on how and under what circumstances rights and freedoms under the Constitution may be limited, but it also breaches Article 10 of the Constitution and 118 which call for public input and participation in the making of legislation. Article 10 which captures the principles and values of governance are a part of the Constitution and binds all State officers whenever it is they enact, interpret or apply the Constitution or any law.

It is my considered opinion that this could just be one stage in a well-choreographed elaborate scheme to revert Kenya back to dictatorship. Dictatorship does not happen overnight, it happens in stages. Kenyans must therefore not wait to see it unfold in totality. It will be imperative for the President to bear in mind the rule of thump in what constitutes a good or potentially bad law. He only needs to ask himself this simple question; how would this law be applied if it were to be placed in the hands of his worst enemy?. Mr. President this law may return to haunt not only you but the Jubilee Coalition, if you sign it into law.

The writer is a Management Consultant based in Nairobi.