Wednesday, January 07, 2009

Give us a break Media Owners, Mudavadi!

Some will call me a hater, but I am not, and I can no longer keep quiet about this.

As a compulsory requirement to completing a law degree at the University of Nairobi one must attend an 8-week clinicals programme during the second year of study. At these clinicals you intern under a civil law and criminal law magistrate for a month a piece. If you get a good magistrate you will get to write judgments for the cases you sit through (not that they will be implemented) and have plenty of Q&A time with your magistrate.

I was fortunate enough to be assigned to one of the two Senior Principal Magistrates at Nairobi Law Courts where I sat through several high profile cases. I also got to write judgments on two accused persons (which were totally opposite to what the magistrate delivered), and saw the justice system in action first-hand.

I learned many things during these clinicals but I remember two clearly. First of all: DO NOT commit a crime, or even be caught in circumstances where there is reasonable suspicion of committing a crime. The criminal justice system is painfully slow and you can take even two years before your case is heard, meanwhile you are languishing in a god-forsaken remand system. Secondly is that court reporters are hopelessly incompetent in reporting on legal matters. I learned this second lesson after reading the next day's newspaper's reporting of cases I had sat through. In all instances the reporters (or their editors) had twisted the actual situation to create an impression of something that was not. For instance in one case where the chief magistrate was taking a plea, the accused person seemed confused on the charges, and in such instances the chief magistrate enters a plea of not-guilty. The reporter at hand chose to leave the confusion part out and indicate that the accused had simply entered a not-guilty plea. While this may appear a small editorial choice, in terms of law it is not.

It is with this prejudice that I started reading the media's opposition to what they wrongly dubbed the Media bill, actually called The Kenya Communications (Amendment) Bill 2008. Cognizant of my prejudice I made sure to read on my own the entire bill before taking a position. In fact I went as far as amending The Kenya Communications Act 1998, with this Amendment Bill in order to comprehensively understand the proposed new law.

At the end I was justified in my prejudice; not only has the media completely misinterpreted the new law, it seems they have deliberately (and maliciously) created an impression that the law if passed will give the Minister 'godly' and 'draconian' powers in 'suppressing media freedom' and 'controlling the media'. This simply put is a bunch of BS. Here's the reality:

1. On the issue of the Minister seizing communication apparatus in the case of a public emergency... that law already exists, it has been there since 1998. In fact whether this new Act was passed or not, that law would remain in force.

2. On the issue of the 'government' controlling program content; this is not true. Yes, the CCK can force a broadcasting station to implement a programme code BUT ONLY if that station does not already adhere to a programme code set by an organization it belongs to i.e. the Media Owners Association. It is a fail-safe law, one that applies only where there is failure to self-regulate.


Plus some obvious omissions on broadcasting should give heart to media owners, for instance SMS broadcasting does not seem to fall under this new law; and any decent analyst of the industry should know, that there lies the future of the industry.

OK, let me not be a law professor, I challenge you to read the law yourself. You can get a free copy of the bill online here and the Kenya Communications Act 1998 from here.


If you do make it to read the law, you will discover though that it creates great opportunities for netpreneurs, vigourously protects computer data and makes hacking illegal, improves greatly standards and processes for e-commerce by legalizing electronic signatures and certificates, and generally promotes the environment for people who are in the business of doing business online.


As an addendum I read with disgust this morning, Musalia Mudavadi's comments yesterday during a press conference with the Media Owner Association. His political posturing is sickening, making statements like "The Government has a responsibility to amend the Act", "focus should not be on who was or who was not in the House when the bill saild through but on the nature and motive". Come on... for Chrissake, you're a member of parliament and a freaking Deputy Prime Minister! The Cabinet is collectively responsible to the National Assembly for all things done by or under the authority of the President or the Vice-President or any other Minister in the execution of his office. Please people, read the Constitution (available for free here) and see how a law is passed. These fellas are pretending as if they were not party to passing this law. Even if the law was bad (which IMHO it is not), these statements from the DPM are highly offensive and disgusting.

The truth is that opposition to this law is about MONEY. The media owners are terrified of the restrictions on cross-media ownership, particularly Nation with their recent expansion of their broadcasting division. Watch those shares free fall.