Referendum: Media must take a stand

The Prime Minister, Mr. Raila Odinga, must be congratulated for defending the independence of the media in covering the current referendum debate. A vicious attack against the media by a group of Parliamentarians opposed to the Draft Constitution was nipped in the bud in the House, when Raila refused to give any direction to journalists on how to handle the referendum story. Several MPs had asked him to do so after claming the media were biased in favour of the supporters of the Draft Constitution.

What the complaining MPs were implying is that journalists in Kenya are not covering the referendum debate professionally. Nothing could be farther from the truth because all the three ways of measuring journalistic professionalism vindicate the media. The three ways are the nuts and bolts of handling a story; the adherence to ethical principles and professional training.

The grumbling MPs are obviously unhappy because of the high standard of journalism in Kenya which makes the competitive nature of the profession demand a high benchmark of interpretative reporting. This is different from the obsolete conveyor belt reportorial method which did not question the authenticity of newsmakers. Today, for example, when an MP deliberately misinterprets any Article of the Proposed Constitution, it is obligatory on the part of the reporter to point out the misdemeanor in his copy. That obviously offends the treacherous MPs who had backed on mendacity to popularize the NO vote.

The second yardstick of adherence to the professional ethics is a lot harder, though not impossible, to discover when it is violated. Superficially it looked as if the MPs were complaining about journalistic independence, or lack of it, among Kenyan journalists while covering the referendum debate. As far back as in 1922 when the American Society of Newspaper Editors (ASNE) first thought of independence as a journalistic ethical principle the worry was none interference in editorial decision making process from three distinct quarters namely proprietorial, governmental and commercial meddling.

Little, of course, did the complaining MPs think of the use of their Parliamentary absolute privilege as a form of political interference in editorial decision making process. The Prime Minister did well to remind them not to poke their noses in instructing journalists on how to handle their copy. If there was any ethical principle Parliamentarians could challenge journalists in Kenya on, it would probably be impartiality which is not specifically mentioned by the Code of Conduct for the Practice of Journalism in Kenya. The tendency by Kenyan journalists to be a bit tendentious can be excused by the acceptance of interpretative journalism.

Be that as it may, no one can accuse Kenyan journalists of not adhering to their Code’s third principle of integrity which calls on journalists to present news with integrity and decency, avoiding real or perceived conflicts of interest, and respect the dignity and intelligence of the audience as well as the subjects of news. Like the ASNE Code of impartiality the Kenyan Code of integrity asks the Kenyan journalists to clearly label opinion and commentary.

The fact that ethically journalists are expected to separate facts from opinion does not mean they have none. Indeed on matters of the forthcoming referendum they are not only expected to express their opinion on their op-ed pages, they are expected to educate their readers, viewers and listeners on the pros and cons of the Proposed Constitution in their various feature articles. That way their readers will easily separate the horses from the mules in all claims made by the proponents and opponents of the Proposed Constitution.

As professional people , journalists in Kenya know the difference between the current Constitution and the Proposed one in so far as their calling is concerned. The current Constitution’s Section 79 guarantees freedom of expression with one hand and takes it with another. It says except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence.

But in Section 79(2) it says nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision - (a) that is reasonably required in the interests of defense, public safety, public order, public morality or public health and(b) that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts or regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting or television; or (c) that imposes restrictions upon public officers or upon persons in the service of a local government authority, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.
Reading that section of the current Constitution clearly indicates under what pressure the Fourth Estate operates in this country. One has only to compare all that with the three articles of the Proposed Constitution which shows considerable respect for the Fourth Estate and the people of Kenya.

The first one is to be found in Article 33 on Freedom of Expression which says every person has the right to freedom of expression, which includes— (a) freedom to seek, receive or impart information or ideas;(b) freedom of artistic creativity; and(c) academic freedom and freedom of scientific research. And Article 33 (2) says the right to freedom of expression does not extend to—(a) propaganda for war; (b) incitement to violence;(c) hate speech; or (d) advocacy of hatred that—(i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or (ii) is based on any ground of discrimination mentioned or contemplated in Article 27 (which deals with equality and freedom from discrimination). Article 33(3) says in the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.

The difference between the two resembles the disparity between day and night. And as if that is not enough, protection for journalist in the Proposed Constitution’s Article 34 deals specifically with Freedom of the Media which is not even mentioned in the current Constitution. The Proposed Constitution’s Article 35 which deals with Access to Information will make all journalists’ work very easy while respecting the people’s right to know.

For these and many other reasons journalists in Kenya must not be apologetic for supporting the Proposed Constitution in their editorial and news analysis columns. At the same time they should not allow anyone to lie about the Proposed Constitution and get away with it. On this important issue of constitutional debate the Fourth Estate must unashamedly take a firm stand and openly endorse the Proposed Constitution.