Tuesday, December 13, 2011

What is good for the goose ...

In today's The Standard, Public Watchdog makes a spirited case for the protection of the freedom of the press (Threats to journalists affront press freedom, but who will punish these perpetrators?) Watchie is right when he holds that a free press is indispensable in a democratic society, and that especially in Kenya, it is critical to achieving the democratisation objectives that underpin the Constitution of Kenya. His apprehensions over the developments that have taken place over the past year, even in light of the promulgation of the Constitution are well-founded, and it is the duty of every person, whether public or private, to stand up for a free press and the protection of journalists as they go about their business.

However, as with many other commentators before him, Watchie makes certain fundamental mistakes that must be corrected, lest members of the public be left with the wrong impression about the state of affairs in government. One of the positive development, agitated for by many Second Liberationists, was the creation of independent institutions, free from the dead hand of the executive Branch of government. Towards that end, the Inspector-General of Police and the Director of Public Prosecutions were made independent under articles 245 and 157. Until the reforms in policing run their course, Watchie will continue to be justified in calling into question the independence or effectiveness of the Kenya Police Force or the Administration Police Service in investigating atrocities perpetrated against members of the Fourth Estate while going about their lawful duties. But in placing the onerous burden of protecting the Fourth Estate, or investigating crimes perpetrated against its members, only on the shoulders of the Attorney-General and the Director of Public Prosecutions, Watchie has surely lost the plot.

When Watchie argues that "...the Director of Public Prosecutions must initiate immediate action by constituting a high level investigative team and appoint an independent prosecutor to bring to account those threatening journalists", and that "...we wait to see whether the [A-G] and the [DPP] would elect to defend the Constitution through decisive action", he seems to forget that the mandates of both the A-G and the DPP are clearly described in the Constitution, and in several laws on the statute books, some enacted after 27th August, 2010 and some before. To begin, the A-G will have demonstrated fidelity to the Constitution by honouring his oath of office and by performing the functions and duties prescribed in article 154, especially article 154 (6) with regards to the rule of law and defense of the public interest. It is in the public interest to have a free and vibrant Fourth Estate that holds all public institutions, including the government to account. Second, the DPP cannot constitute a high level investigating team; the investigation of crimes or attempted crimes is the exclusive preserve of the National Police Service (article 244); the DPP merely has the power to direct the Inspector-General of the National Police Service to conduct investigations into criminal conduct (article 157). The office of the DPP, while independent, does not have supervisory control over the National Police Service; that role is reserved for the National Police Service Commission (article 246) and the Independent Policing Oversight Commission, which is the result of the recently enacted Independent Policing Oversight Commission Act, 2011.

While we appreciate the plight that Watchie's colleagues have or are undergoing as a result of their pursuit of a good story, whether or not it was in the public interest, we must not forget that the Fourth Estate is also beset by many of the structural and institutional infirmities that bedevil the government, including corruption, nepotism and unprofessionalism. While it the right of any person to own property, including a media company, and to associate with any person, including individuals in and formerly in government, to prevent accusations of conflict of interest, such relations must be managed openly and honestly. An independent press must hold itself to the same high standards as the government it is attempting to hold to account, otherwise it will be like the pot calling the kettle black. The ownership structures of media companies and their relationships with persons in and out of both the public and private sectors remained shrouded in secret; it is impossible to tell where the public interest begin and the interests of shareholders end. Until it is known, the Fourth Estate should be treated with skepticism. What is good for the government goose must surely be good for the independent press gander too!

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