VZCZCXRO0827
OO RUEHROV
DE RUEHNR #2850/01 3541301
ZNR UUUUU ZZH
O 191301Z DEC 08
FM AMEMBASSY NAIROBI
TO RUEHC/SECSTATE WASHDC IMMEDIATE 8024
RUCNIAD/IGAD COLLECTIVE
RUEHDR/AMEMBASSY DAR ES SALAAM 6264
RUEHDJ/AMEMBASSY DJIBOUTI 5500
RUEHLO/AMEMBASSY LONDON 3029
RUEHFR/AMEMBASSY PARIS 2922
RUZEFAA/CDR USAFRICOM STUTTGART GE
RUZEFAA/HQ USAFRICOM STUTTGART GE
RHMFIUU/CJTF HOA

UNCLAS SECTION 01 OF 04 NAIROBI 002850 
 
SIPDIS 
 
AF/E FOR SUSAN DRIANO, DRL FOR MOLLIE DAVIS, 
LONDON AND PARIS FOR AFRICA WATCHERS 
 
E.O. 12958: N/A 
TAGS: PGOV PREL PHUM KDEM KPAO KE
SUBJECT: PROTESTS OVER RESTRICTIVE MEDIA BILL 
 
Ref:  06 NAIROBI 973 
 
Summary 
------- 
 
¶1.  Parliament passed a Media Bill on December 10 which, if 
signed by President Mwai Kibaki, would potentially subject the 
independent media to intrusive government interference.  The 
Media Bill was presented to Parliament and the public as a 
series of amendments to the Communications Act of 1998. 
However, the Media Bill is nearly a complete re-write of the 
Communications Act, which provides the framework for media 
regulation.  Problematically, one section of the original act 
the Media Bill does not override is a provision granting the 
Minister of Internal Security and Provincial Administration 
extensive powers to enter media outlets at will and to seize 
equipment and/or close such outlets if he determines it 
constitutes, "a threat to security and tranquility," terms 
which are not defined.  The Media Bill would make a new 
Communications Commission of Kenya (CCK) the sole regulator of 
all information technology and media, and give it the power to 
set standards for the manner, time and type of programs to be 
broadcast by media.  It also gives the CCK the ability to levy 
steep fines against broadcasters who violate these putative 
standards.  The Media Bill allows for extensive political 
influence over the CCK by granting the Minister of Information 
and Communications the power to appoint CCK commissioners and 
to issue binding policy instructions to the CCK. 
 
¶2.  Media owners and journalists have waged an all-out, 
coordinated media blitz against the Media Bill and have made 
direct appeals to the President and Prime Minister (PM) to 
reject the law.  Journalists held peaceful public 
demonstrations in Nairobi and other cities on December 12 to 
coincide with the Jamhuri (Independence) Day celebrations. 
Police arrested several journalists, who were released later 
that day without charge.  Civil society groups have also 
condemned the Media Bill.  The Ambassador issued a statement 
on December 13 voicing concern that the Media Bill threatens 
Kenya's hard-won press freedom and raises questions about the 
coalition government's commitment to fundamental reforms (See 
text para. 12).  Journalists continued to protest and police 
again arrested journalists on December 15 as they protested at 
Parliament.  Reacting to increasing public condemnation of the 
Media Bill, several cabinet ministers, including the PM, have 
denounced the Media Bill and demanded that it be amended.  The 
President must now decide whether to sign the bill into law or 
whether to reject the Media Bill and return it to Parliament 
for revision.  The Ambassador sent a note to the President 
calling attention to the problematic nature of some provisions 
in the Bill and describing how other democratic countries, 
like the U.S., regulate the media.  End Summary. 
 
The Media Bill 
-------------- 
 
¶3.  The Kenya Communications Amendment Bill (commonly known as 
the Media Bill) is a revival of an earlier Media Bill which 
lapsed when the Ninth Parliament failed to pass it before 
being dismissed in October 2007.  The ostensible goal of the 
Media Bill is to amend the Kenya Communications Act of 1998. 
However, critics contend that the Media Bill is a nearly 
complete rewrite of the previous legislation with just a few 
key provisions left intact, which is what has spurred the 
media/public reaction.  When the Grand Coalition Government 
was formed in April 2008, the new Minister for Information and 
Communications, Samuel Poghisio, consulted with owners of 
major media houses of Kenya to draft a new bill that would 
incorporate the concerns of both government and media.  During 
this process, media owners believed that the Media Bill would 
repeal Section 88 of the 1998 legislation, which grants the 
Minister of Internal Security and Provincial Administration 
(the Minister of Internal Security) extensive powers to enter 
media outlets at will and to seize equipment and close such 
outlets if s/he determines it poses, "a threat to security and 
tranquility," terms which are not defined.  However, the new 
version published in July 2008 did not repeal Section 88.  It 
also gave the Minister of Information and Communications (the 
Minister of Information) the ability to exert political 
influence over the media. 
 
Government Interference Allowed 
 
NAIROBI 00002850  002 OF 004 
 
 
------------------------------- 
 
¶4.   The Media Bill retains or creates provisions that will 
permit extensive government interference with freedom of the 
media.  By maintaining Section 88 powers to raid media 
outlets, the Minister of Internal Security can perpetrate 
raids like that made on the Standard newspaper in 2006 
(Reftel).  The Media Bill would also establish a new 
Communications Commission of Kenya (CCK) as the licenser of 
information technology service providers and media outlets. 
The CCK would be empowered to prescribe standards related to 
time, type, and mode of programs to be aired. It would also 
mediate disputes arising from implementation of the Media Bill 
and would be empowered to impose steep fines for violations 
with no requirement that the fines be proportionate to the 
nature of the infraction.  Such an expansive role for the CCK 
would not necessarily be problematic if it were an independent 
body, insulated from economic and political pressures. 
However, the Media Bill directly subjects the CCK to political 
influence by allowing the Minister of Information to appoint 
the CCK commissioners and to issue binding policy directives 
to the body.  Some critics complain that the Media Bill makes 
no mention of, and so effectively abolishes, the recently- 
established Media Council, composed of media owners and 
practitioners, which was aimed at providing for media self- 
regulation. 
 
No Sense of Irony - and Maybe History 
------------------------------------- 
 
¶5.   Kenya's media has become increasingly free since 2002, 
when the then-newly elected President Kibaki loosened the 
severe media restrictions of the government of former 
President Daniel arap Moi.  Broadcast media has expanded 
exponentially since then: from one and a half TV stations (the 
state-owned Kenya Broadcasting Corporation (KBC) and the semi- 
independent Kenya Television Network, which only reached 
Nairobi viewers) and one government radio station to half a 
dozen TV channels and countless FM radio stations blanketing 
the country in English and vernacular programming.  As media 
has expanded, so has its political strength.  Media has at 
times been used by local and national politicians to enhance 
their own images with their constituents in their bids for 
elective office, particularly in the 2007 general elections. 
Politicians, having won their seats in Parliament and the 
Cabinet, now resent the power of the media to run negative 
stories on them.  Enjoying greater independence, the media has 
exposed, for example, excessive foreign travel of Members of 
Parliament (MPs), personal scandals related to MPs, and other 
political shenanigans.  The media's recent campaign to 
publicize MPs' refusal to pay taxes on their approximately USD 
10,000 monthly allowances - at a time when ordinary Kenyans 
have been hit by spiraling food costs -  have resonated with 
the public and caused resentment among many MPs, who now feel 
that they need to bring the media to heel. This created the 
atmosphere in which the Media Bill was passed. 
 
Parliament Adopts the Media Bill 
-------------------------------- 
 
¶6.   Media owners recognized the threat the Media Bill posed 
to their hard-won freedom and unsuccessfully mounted a 
campaign to undo the sections they had previously objected to 
before the Media Bill was presented to Parliament.  However, 
despite protests by Kenyans both in and outside the media, the 
Media Bill was passed by Parliament on December 10.   Out of a 
sitting parliament of 222 members, only 25 MPs voted for the 
Bill and three against, which is less than the required quorum 
that 30 MPs be present for a vote.  Procedurally, if no one 
alerts the Speaker to a lack of quorum, Parliament can 
continue debate and take votes, which in this case it did. 
Ironically, many MPs not present at the vote have since 
criticized some provisions of the Bill as unconstitutional. 
They have subsequently been criticized by the public for 
failing to do their jobs appropriately. 
 
Next Steps 
---------- 
 
¶7.  The Media Bill is now with the Office of Attorney General 
for fine tuning, after which it will be sent to the President, 
who must sign it into Law within 21 days of receipt, or send 
 
NAIROBI 00002850  003 OF 004 
 
 
it back to Parliament with a memorandum explaining his 
objections.  Parliament may then either revise the Bill in 
line with the President's objections or it may override the 
President's objections with the approval of 65 percent of the 
222 MPs. 
 
Media Protests: Journalists Arrested 
------------------------------------ 
 
¶8.  When the Media Bill was passed despite the courting of MPs 
and Cabinet members by media owners, the print and electronic 
media pursued a coordinated public campaign to paint it as 
draconian and a clear attack not only on the independence of 
the press but on the freedom of speech.  From December 11 to 
date all media outlets except the state-run KBC carried 
extensive news reports and commentary against the Media Bill, 
and they have called on the President to reject it. 
 
¶9.  Journalists have also organized public protests. For 
example, on December 12 - Jamhuri Day - which celebrates 
Kenya's independence, media personalities from radio and 
television went to Nyayo Stadium where the President and many 
VIPs were commemorating the holiday.  Several wore tee-shirts 
that read "No Taxes for MPS; No Taxes for Us," and were 
promptly arrested for unlawful assembly before they could 
enter the stadium, others carried placards and one wearing a 
prison uniform carried a petition for the President.  All were 
carted away, some violently. All save two civil liberties 
activists were released that evening without charge (see 
septel).  (Note:  These protests coincided with civil society 
protests over spiraling food prices and the refusal of MPs to 
pay tax on their allowances. These demonstrations were in 
parallel but not related to the media efforts.  End Note.) 
 
¶10.  Following the events on Jamhuri Day, the Media Owners 
Association coordinated programming on all channels to raise 
public awareness of the issue.  Media owners also on December 
15 met with the PM, who supported their demands that the 
President not sign the Media Bill.  Martha Karua, the Minister 
of Justice, National Cohesion, and Constitutional Affairs, 
also announced that her office was reworking the clauses of 
the Media Bill to delete the negative references, an unusual 
move by the Minister of Justice which appears to have a 
political, not a legal, basis.  Meanwhile a small group of 
journalists who paraded near Parliament on December 15 were 
arrested.  They were released after being charged with 
unlawful assembly. 
 
Mission Efforts 
--------------- 
 
¶11.  The Mission has been working to make clear our concerns 
about the negative provisions of the bill.  We have been in 
close contact with senior government officials, including the 
Minister of Foreign Affairs, Minister of Information, and 
Prime Minister.  The Ambassador also sent a note to the 
President touching on these concerns and providing information 
about how other democratic countries, particularly the U.S., 
handle regulation of the media.  On December 13 the Ambassador 
joined his German colleague with the media to discuss the 
bill.  The Ambassador has met with the media owners to hear 
their concerns.  While indicating that we share concerns, he 
also made clear that the media must also act responsibility 
and avoid the temptation to depict this as a "crisis."  Should 
the President sign the bill, there will be opportunities in 
Parliament to amend it subsequently.  It is also important to 
put the current situation in context.  While we need to 
address the problems in the media bill, the heated debate 
regarding the media bill comes at a time when the coalition 
government's reform agenda is moving forward in a positive 
way. 
 
¶12.  On December 13, the Ambassador issued the following 
statement regarding the Media Bill and government reaction to 
peaceful protests.  Begin text: 
 
The United States is very concerned about recent actions which 
potentially threaten freedom of the media in Kenya.  The 
partnership between the United States and Kenya is based on 
shared democratic values.  Freedom of the media is central to 
those values and the maintenance of a strong democracy. 
 
 
NAIROBI 00002850  004 OF 004 
 
 
Specifically, the United States is concerned that the Media 
Bill passed by Parliament gives excessive power to the 
government over the media.  As passed, the Media Bill, among 
other provisions, gives the government authority to close down 
and dismantle media outlets by declaring a state of emergency 
or by citing security concerns.  It will also give the 
Minister of Information undue influence over media content 
through the government-appointed Communications Commission. 
 
The passage of the Media Bill runs counter to the coalition 
government's commitment to carry out fundamental reforms in 
order to strengthen democratic institutions and to promote the 
well-being of all Kenyans.  Unrestricted access of the public 
to information provided by professional and independent media 
is vital to the successful functioning of the democratic 
process.  It is, therefore, understandable that Kenyans across 
political, social, and ethnic lines are demonstrating their 
democratic spirit by speaking out to voice concerns about the 
Media Bill. 
 
We are encouraged by the commitment shown by President Kibaki 
and Prime Minister Odinga, the leaders of the coalition 
government, to carry out the reform agenda.  As the 
representatives of the Kenyan people, Parliament must play a 
responsible role to help implement the reform agenda. The 
Media Bill runs counter to that agenda.  As drafted, it is a 
step backwards, and not a step towards the brighter future 
that Kenyans want their leaders to pursue. 
End Text. 
 
Comment 
------- 
 
¶13.  There are legitimate concerns that the mushrooming 
vernacular FM stations, with their often lax editorial 
policies, can incite public violence -- as happened in the 
run-up to, and the aftermath of, the December 2007 election -- 
potentially threatening national security.  The Media Bill as 
passed, however, overreaches by retaining the Minister of 
Internal Security's unbridled power to raid media outlets and 
by granting the Minister of Information the ability to exert 
political influence over a nominally independent CCK. 
 
¶14. (Cont'd) Media owners and journalists are unlikely to 
desist from their efforts to fight the Media Bill, and their 
efforts appear to be making some headway among the public. 
Civil society groups have adopted the media's cause and have 
included it in their parallel protests over high food prices 
and the MPs' refusal to pay taxes.  Civil society efforts 
appear to have made headway among the political class; besides 
the PM and Martha Karua, several ministers and MPs have called 
for the Media Bill to be reworked to remove the offending 
clauses.  However, a number of MPs and the leadership of 
Ministry of Information are equally adamant that the Media 
Bill be implemented as passed.  The hard decision now falls on 
President Kibaki.  We will continue to follow the issue 
closely and weigh in at the highest levels of government as 
necessary to support Kenya's hard-won press freedom.  End 
Comment. 
 
RANNEBERGER