Freedom of Expression

Journalists are guaranteed the right to freedom of expression under Article 33 of the Constitution of Kenya. This is so that they can carry out their work with confidence and without any intimidation.

Freedom of expression includes the freedom to;

  • Seek, receive or impart information or ideas;
  • Artistic creativity; and
  • Academic freedom and freedom of scientific research.

A journalist has the freedom to engage in any of the areas provided for as long as 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 (Constitution Art. 33) .

Apart from the provisions of the said Article 33 , the Constitution provides under Article 2 (5) and (6) that, the general rules of international law shall form part of the law of Kenya and any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution. Kenya is therefore bound by the other provisions on freedom of expression found in ratified regional and international statutes. Such provisions include, Article 9 of the African Charter on Human and People’s Rights (ext. Link), Article 19 of the Universal Declaration on Human Rights (ext. Link) and Article 19 of the International Convention on Civil and Political Rights (ext. Link). Journalists can therefore also rely on this provisions to defend their work in Kenya.

The African Commission on Human and Peoples Rights (ext. Link) have developed principles on freedom of expression (ext. Link) to guide African states on implementation of the freedom of expression. Journalists should be aware of these principles to assist them to understand what is expected under their right to freedom of expression.

In a recent report (ext. Link) released by Reporters Without Borders (RSF), Kenya was seen as being a satisfactory situation on protection of media freedoms and ranked number 95 out of 180 countries in the world, with a score of 31.16. Such Ranking is based on issues as media diversity, media independence, the journalistic environment and self-censorship, the legal system, institutional transparency, media production infrastructure and also on acts of violence and infringements against journalists.

Freedom of Media

Photo: William Janak Oloo
Photo: William Janak Oloo

Kenyan media is guaranteed the freedom and independence of electronic, print and all other types of media under Article 34 of the Constitution.

Media can freely operate as long they do not engage in 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 specified under Article 27 (4) of the Constitution which include, race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

In order to guarantee media its freedom, the Constitution mandates the state NOT to;

  • Exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium; or
  • Penalize any person for any opinion or view or the content of any broadcast, publication or dissemination.

Additionally, the media is guaranteed the freedom to establish broadcasting and other electronic media. However, this is subject only to licensing procedures that are necessary to regulate the airwaves and other forms of signal distribution; and are independent of control by government, political interests or commercial interests.

Further, all State-owned media is required to be free to determine independently the editorial content of their broadcasts or other communications; be impartial, and afford fair opportunity for the presentation of divergent views and dissenting opinions.

Kenya has two key laws that are in place to realize media freedom, the Kenya Information and Communications Act (ext. Link), 1998 and the Media Council Act (ext. Link), 2013 to regulate media and journalists conduct as per their code of conduct. The laws establish two bodies, the Communication Authority and the Media Council respectively. The said two bodies are required to be independent of control by government, political interests or commercial interests. They reflect the interests of all sections of the society, set media standards, and regulate and monitor compliance with those standards.