Attacks on the Press in 2003 - Kenya

The December 2002 electoral victory of President Mwai Kibaki's National Rainbow Coalition (NARC) brought high hopes for a new era of democracy, economic recovery, and respect for human rights after the 24-year rule of former President Daniel arap Moi and his KANU party. However, the euphoric atmosphere quickly dissipated.

The new government failed to deliver on many election promises, including the introduction of a new constitution within 100 days. As the government came under attack, authorities also showed increasing signs of intolerance toward the media.

At the end of September, police arrested three senior staff members of the East African Standard, the country's oldest newspaper, after the Standard published excerpts of leaked confessions in a sensitive murder inquiry. The confessions were from a suspect in the murder of Crispin Odhiambo Mbai, who headed a key committee of Kenya's Constitutional Review Conference. Mbai was killed on September 14 in what many believe was a political assassination. The Standard article suggested that the police inquiry was moving too slowly.

After six hours of questioning, the police released Tom Mshindi, the managing director of Standard Group, which owns the Standard, and one of his editors. Another editor, David Makali, was detained for two days and charged with stealing a police videotape. He pleaded not guilty to the charge, which carries a sentence of up to three years in prison. The newspaper, whose original article on the confessions referred to a police report and not to tapes, denies that it ever had a police videotape. Makali was released on bail, but the court case remained ongoing at year's end.

In December, Attorney General Amos Wako announced a clampdown on so-called scandal sheets, publications that often carry unsigned articles with gossip about Kenya's rich and powerful. The move came after members of Parliament demanded action against the publications, saying they thrived on character assassination through unfounded and exaggerated stories. A recent edition of one sheet had listed the HIV status of some lawmakers. Wako accused six sheets of failing to comply with rules governing the publication and sale of newspapers and said vendors of these titles would be arrested and charged. Ironically, he invoked provisions of the repressive Books and Newspapers Act, introduced by the Moi government only months before the 2002 elections, which the new government had promised to overturn. The law raised the libel insurance bond that publishers must pay the government from 10,000 Kenyan shillings (US$130) to 1 million Kenyan shillings (US$13,200) and penalizes vendors who sell unlicensed publications. Anyone caught selling illegal publications faces six months in jail and a fine of 20,000 Kenyan shillings (US$265).

Scandal sheet publishers and editors deny they violated the law. They vowed to defy the crackdown and argued that civil libel laws provide adequate means for redress to individuals who feel unfairly targeted by the press. However, with vendors afraid to sell the publications, sales went underground by mid-December, according to local journalists. Although mainstream journalists question the professionalism and ethics of the scandal sheets, most agreed that the government clampdown was a threat to press freedom.

In late December, the respected daily newspaper The Nation reported that two government ministers and a NARC parliamentarian had been caught with prostitutes in their cars during a police raid in the capital, Nairobi. The Nation said police had videotaped evidence, which police denied. Labor Minister Ali Chirau Mwakwere sued Nation Media Group (NMG), which owns the paper, for civil defamation, while the other minister and the lawmaker obtained 14-day gag orders against NMG and the owners of Citizen radio and television banning them from circulating any material about the police operation. The gag orders expired at year's end, but the case remained before the courts. Kenyan law limits press coverage of matters in court.

Journalists expressed disappointment at the new government's failure to improve the legislative framework for press freedom in 2003. Despite their pre-election promises, authorities did not revoke laws that threaten press freedom, including the Official Secrets Act, which criminalizes breaches of government secrecy; sections of the Penal Code; and the Books and Newspapers Act.

Photojournalist Wallace Gichere has been fighting for government compensation since 1991, when police officers threw him from the window of his fourth-floor apartment in Nairobi, leaving him paralyzed from the waist down. The officers had gone to arrest him for writing antigovernment articles and sending information on human rights abuses to Amnesty International.

In June 2000, a government committee on human rights recommended that the government compensate him for injuries and loss of earnings, a recommendation that the previous government approved the same year, according to Gichere. In July 2002, after the journalist went on a hunger strike, Attorney General Wako admitted liability but said the journalist's compensation claim was excessive. Gichere went on a hunger strike again for two weeks in December 2003. This time, Wako offered him 9.4 million Kenyan shillings (US$124,000). The Kenya Union of Journalists (KUJ), which has taken up his case, described this as "peanuts" and said the amount would not even cover his medical bills. KUJ Secretary-General Ezekiel Mutua demanded that the government explain its offer and put it in writing. By mid-January, officials had still not done so, according to Gichere. So far, there have been no moves to prosecute the police officers responsible for crippling Gichere.

2003 Documented Cases – Kenya

APRIL 9, 2003

James Ng'ang'a, The Nation
George Omonso, The Nation
Wanyama Chebusiri, BBC
Wily Faria, East African Standard
ATTACKED

Ng'ang'a and Omonso, Eldoret-based correspondents for the daily Nation; BBC correspondent Chebusiri; and East African Standard correspondent Faria were attacked by police in western Kenya near the Ugandan border while covering a demonstration by local residents in the village of Kainuk. The villagers were protesting the government's failure to take action against bandits from neighboring Uganda who were raiding the area.

During the demonstration, police opened fire on the crowd, killing one person. When police saw the journalists setting up their cameras, officers beat the journalists and confiscated their equipment. Ng'ang'a was thrown to the ground and pushed into a police vehicle, where he was briefly detained. Police eventually returned the journalists' equipment but took their tapes and told them they would not be returned.

JULY 8, 2003
Posted: January 27, 2005

Peter Makori, freelance
IMPRISONED, THREATENED

Makori, a freelance journalist based in Kisii, in western Kenya, was arrested, charged with the murder of two local chiefs and detained from July 2003 to May 2004 without trial. He says he was tortured in custody as security agents tried to coerce a confession. Makori was freed after the country's Attorney General dismissed the case, and the High Court ordered his release.

Makori believes local officials conspired to keep him in detention because of his reports alleging rape and murder by a local militia that enjoyed the support of the District Commissioner. Some of these reports were broadcast on BBC radio in June 2003, just before his arrest. He had also been investigating corruption by local officials.

After his release, Makori announced his intention to sue the state over his imprisonment. However, he said that he had not pursued the claim because he received threats and feared for his security. Several human rights organizations have taken up his case. The Kenya Union of Journalists (KUJ) told CPJ it believes Makori's ordeal was linked to his work as a journalist, and that it was investigating the case.

SEPTEMBER 29, 2003
Posted: September 29, 2003
Updated: April 7, 2005

David Makali, East African Standard
IMPRISONED, LEGAL ACTION

Kwamchetsi Makokha, East African Standard
Tom Mshindi, East African Standard
HARRASSED

Sunday Editor Makali, Associate Editor Makokha, and Managing Director Mshindi from Kenya's oldest daily newspaper, the East African Standard, which is based in the capital, Nairobi, reported to the police at around 1 p.m. after receiving a summons. According to Mshindi, police released him and his colleague Makokha after about six hours and told them to report to police headquarters the next morning, September 30. They told CPJ that they were extremely worried about Makali, who remained in police custody.

The arrests came after the paper published leaked excerpts of confessions to the police by a suspected murderer of Crispin Odhiambo Mbai, who headed a key committee at Kenya's Constitutional Review Conference, in its Sunday, September 28 edition. Mbai was killed on September 14. The article reported that some of the suspects had fingered a prominent politician in the ruling National Rainbow Coalition (NARC) party as having masterminded the murder.

Mshindi told CPJ that he and his colleagues were separated for questioning, and that police repeatedly asked the journalists to reveal their sources, which they refused to do. After being released at around 7:30 p.m., Mshindi and Makokha said they spent the evening trying unsuccessfully to discover Makali's whereabouts. On Tuesday, September 30, Makali was allowed to meet briefly with Mshindi and Makokha and with members of his family, said Mshindi.

After failing to get the journalists to reveal their sources, authorities pursued charges in court against Makali and a police officer, John Chemweno. According to Standard lawyers, Makali and Chemweno were taken to High Court in Nairobi on Wednesday, October 1, where Makali was charged with stealing a cassette that belonged to the police and contained videotaped confessions. The charge was later changed to theft of a copy of a tape and handling stolen property.

Makali was detained until October 1, when he and the police officer were released on bail of 5,000 Kenyan shillings (US$66) each.

The newspaper, whose original article on the confessions referred to a police report, not to tapes, consistently denied that it ever had a police videotape. Makali, who faced a maximum penalty of three years' imprisonment if convicted, pleaded not guilty.

On April 4, 2005, the Chief Magistrates' Court in Nairobi acquitted both Makali and Chemweno of all charges. Chief Magistrate Aggrey Muchelule stated in his judgment that the case against Makali and the police officer had not been established by the prosecution, according to news reports.

The judge also said that "in any case, the fruits of any investigation which are in possession of the police are not their property but that of the public," according to news reports. To convict Makali, he ruled, would contravene constitutionally guaranteed freedom of expression.

Local journalists welcomed this interpretation, as they have pushed for a separate law mandating free access to official information for years. A draft Freedom of Information bill was pending before the Kenyan parliament, according to local news reports.