Threat to arrest journalists for doing their job violation of the Constitution

Inspector-General David Kimaiyo (right), flanked by CID Director Ndegwa Muhoro. PHOTO | NATION MEDIA GROUP

In Summary
Communication to the public through the electronic media is not a crime as it is clearly permitted by article 33 of the Constitution, unless it is proven to extend to the matters that are prohibited by the Constitution.
In the event, that the broadcast was in any way in violation of the law, the mechanisms established by law to resolve disputes or to hold accountable those that violate the law, should be used.

By Charles Nyacahe
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Any commentary touching on the aftermath of the Westgate saga must begin with a condemnation of the dastardly act and its perpetrators, and secondly, a recognition and salutation of the valiant efforts made by civilians and members of the disciplined services to rescue people who were trapped in the mall during the terrorist attack.

These courageous individuals put their lives at risk to save the lives of men, women and children on that fateful day. I salute you.

That said, the stated intent of the Inspector-General of Police to have journalists arrested for their coverage of the Westgate terrorist attack, [which he has denied] is of fundamental concern.

The Bill of Rights in Chapter 4 of the Constitution, is an integral part of Kenya’s democratic state and the rights enshrined therein belong to each individual and are not a favour granted by the State which may be arbitrarily taken away or compromised. Such rights can only be subject to the limitations contemplated in the Constitution.

The freedom of expression enshrined in article 33 of the Constitution provides for the right of every person, including journalists, the freedom to seek, receive and impart information or ideas; freedom of artistic creativity and academic freedom and freedom of scientific research.

This right is limited by the Constitution to the extent that it does not extend to propaganda for war, incitement to violence; hate speech; or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm; or is based on any ground of discrimination.

Further, in the exercise of the right to freedom of expression, every person must respect the rights and reputations of others. These are the only constitutional limitations on the freedom of expression.

The Constitution and the law vest the power to arrest in the Inspector-General. However, such exercise of authority must comply with the Constitution and not violate it. The power to arrest is exercised in cases relating to perpetration of crimes and not in civil matters unless a court has ordered arrest in a civil case.

It is not clear whether the alleged threat to arrest relates to a criminal offence or whether it relates to an allegation of harm to the reputation of a disciplined service. Matters relating to the reputation, good or ill of others is a civil matter that does not lend itself in the first instance to arrest.

Communication to the public through the electronic media is not a crime as it is clearly permitted by article 33 of the Constitution, unless it is proven to extend to the matters that are prohibited by the Constitution.

Indeed, Kenyans have come to depend on investigative journalism to learn about crucial matters affecting their social, economic and political environment. On a number of occasions, broadcasts have revealed commission of crimes by public officers including members of the Police Service e.g. taking of bribes by traffic police.

Yet at no time has the Inspector-General threatened to arrest the journalists who share such information with the public. Further, the alleged offensive clips were broadcast in foreign media extensively.

There are laws in place relating to the regulation of media and broadcasting standards. In the event, that the broadcast was in any way in violation of the law, the mechanisms established by law to resolve disputes or to hold accountable those that violate the law, should be used. In that regard, a report should be made to the Media Council and/or the Broadcasting Standards Committee.

The full and faithful implementation of the Constitution is dependent on the exercise of authority in accordance with the Constitution by all State offices and State organs. Indeed, the Constitution places greater responsibility on State officers in Chapter Six of the Constitution in view of the powers granted by the Constitution to them.

Article 73 expressly states that authority assigned to a State officer is a public trust to be exercised in a manner that is consistent with the purposes and objects of the Constitution; demonstrates respect for the people; promotes public confidence in the integrity of the office; and vests in the State officer the responsibility to serve the people rather than to rule them. The Inspector-General is a State officer under Article 260 of the Constitution.