CHAPTER TWO
LITERATURE REVIEW AND THEORETICAL FRAMEWORK
2.1 Introduction
In this chapter, the researcher looked at the existing information on the laws governing media freedom in Kenya and the state of press freedom in the country. The theoretical framework provided a deeper understanding of the concept media freedom.
2.2 Literature Review
The constitution of Kenya (2010) recognizes the importance of media freedom and in fact upholds media freedom under Article 34. This article guarantees the freedom and independence of the press. Furthermore, with regards to independence, the constitution provides that the state shall not interfere with the functioning of the media or penalize the media for opinions expressed. However, all media freedoms under the constitution are applicable with the caveat that the right does not extend to propaganda for war, incitement to violence, hate speech or advocacy of hatred.
There is no doubt about the importance of media freedom in today’s society. In fact, Merril (2010) found that press freedom is essential in maintaining authentic journalism. This freedom ensures that the media system is creative and journalists become more self-assured in pursuing the truth.
Makokha (2018) defines media freedom as “whether the policy and legal environment in which the media is operating in a given country is enabling or restrictive” (Makokha, 2018). In his newspaper article, he reported that several scholars and activists have maintained that Kenya’s press is under attack as the country dropped in the global rankings of press freedom especially under the Jubilee regime. Concurring with him is the Democracy Index Report which confirms that attacks on the press and journalists are not new in Kenya. Kenya is ranked among countries with largely unfree press. The report places Kenya in the same rank with countries such as Afghanistan, Iraq, Central African Republic and Lebanon. “In Kenya, journalists routinely face harassment and intimidation while carrying out their work. Despite a recent lifting of anti-media laws, journalists can face criminal prosecution under security legislation and violent attacks against media workers increased in the run-up to the country’s elections,” (Democracy Index Report, 2018). Most of the attacks on journalists happen during the electioneering period in the Kenya and Kenya scored six points out of ten, and was placed in position 71 out of 154. According to the ranking, the country’s worst performance was in the election period. These three scholars seem to agree on the attack of Kenya’s freedom of the press. The World Press Index (2018) report which ranks Kenya 96th out of 180 nations in the 2018 World Press Freedom Index supports these findings that Kenya is under attack. This report shows that Kenya’s ranking has dropped significantly from the 84th place in the year 2012, a year before President Uhuru Kenyatta was elected to his first term in office. The report places Kenya in the bottom half, where several other previously unstable countries lifted themselves out. These ratings are problematic to Kenya as a country.
(Freedom House, 2016) reported that Kenya’s press is partially free. This is as a result of journalists and bloggers being arrested in January 2016 under a section of the 2013 Kenya Information and Communications Amendment Act that criminalizes the transmission of “offensive” message over telecommunications devices. However, the High Court found that section to be unconstitutional. “Acts of violence against journalists continued in 2016. A number of journalists were attacked while covering opposition protests,” (Freedom House, 2016)
Barasa (2013) reported that the media council bill made Kenya join the league of countries with repressive media laws in the world. According to the newspaper, the laws suppress reporting of corruption or scrutiny of government actions. It further states that “Investigative journalists continue to be on the receiving end of physical and verbal attacks due to the results of their investigative work.” (Barasa, 2013)
Although press freedom is enshrined in Kenya’s constitution and legal system, state control and ownership of public media, government ownership of a crucial part of the marketing sector, somewhat dubious ownership structures, the strong economic dependence of independent media, and soft pressure coming from both political and non-political elites has led to the formation of creeping form of self-censorship. “Kenya’s Members of Parliament(MPs) rush to the parliament to amend the laws governing the press when the media reports something negative about them or when the media starts asking questions on certain matters. The Kenyan parliament has played a major role in leading to a drastic drop of the Kenyan position on the World Press Freedom Index,” (Reporters Without Border, 2016). The bills brought in the parliament were passed into laws in an attempt to gag the media. The state media, Kenya Broadcasting Corporation (KBC), is also no longer completely free of government pressure.
2.2.1 limitation on media freedom
In as much as the constitution of Kenya (2010) provides for press freedom in the country, it has set certain limits for them. The limitation under article 34 states that, media freedom does not extend to
a) Propaganda for war
b) Incitement to violence
c) Hate speech or
d) Advocacy of hatred that-
i) Constitutes ethnic incitement, vilification of others or incitement to cause harm or
ii) Is based on any ground of discrimination specified or contemplated on article 27(4)
Furthermore, Article 24 of the Constitution states that a freedom can be limited by law when that limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
As much as freedom of the media is acknowledged, so is the need for its limitation thus the need to form regulatory bodies such as the Media Council of Kenya and the Communications Authority.
The constitution requires the parliament to enact a body that would regulate the media and it should be free of interference of any kind.
The United States Federal Communications Commission refers to independence of regulators as “An effective regulator should be independent from those that it regulates, protected from political pressure, and given the full ability to regulate the market by making policy and enforcement decisions. The regulator should have the authority, and jurisdiction to carry out its regulatory and enforcement functions effectively. And the regulator should be adequately funded from a reliable predictable revenue sources.”
2.2.2 Demystifying the regime on restrictions
From ancient times, humanity has yearned for the freedom of expression and the right to information has also been an “ancient and almost universal phenomenon” (Forole, 2010). This presents a paradox; the aims of the freedom of expression, including the right to information, intrinsically conflict with those of censorship-the restrictions of these rights and freedoms. The resulting scenario presents two opposed forces: the need to ensure enjoyment of the concerned rights and freedoms and the need to limit the enjoyment of these rights and freedom to meet the general common good. Forole (2010) argued that these limitations are necessary subject to the right interpretation of the law maker and his ability to restrain from further restricting the media from covering certain events because either it will make the public question him or it will bring him to his downfall. Thus a genuinely free and independent press is vital in protecting the rights of public.
In Kenya the constitution is better known for protection but several. The limiting clause on media freedom is thus considered to be for a greater good, for protection of others’ rights. The limitation as stipulated in the constitution thus interpreted as reasonable and justifiable in an open and democratic society.
2..2.3 Control of the press
The legal instruments governing the press in Kenya derive from every kind of legal process in every branch of law including public, private, criminal, commercial and administrative.
Although the state has no power over the press in Kenya, constitutional provisions of freedom of expression is vague and the ensuing law confers unfettered discretion on executive officials to implement the controls. At the same time, it appears that the three arms of the government: the executive, legislator and the executive impose very independent controls on the press. The parliament can impose very stringent controls on the press (Okoth, 2004)
Justification for the study; Gap in the current studies
One of the strategies towards having the desired press in Kenya includes the need to enable efficient regulation of the media without limiting it.
There are several reports that have been done concerning the laws governing press freedom in Kenya and the state of press freedom in the country. However, these researches did not look at the constitutionality of these media laws and the shortcomings of the constitution to protect the media industry. The researcher would therefore like to outline the gaps and vagueness in the constitution on matters press freedom and give recommendations on the same.
2.3 Theoretical framework
Libertarian press/ Free press theory
The libertarian theory is one of the normative theories of the press. The theory originally came from libertarian thoughts from 16th century in Europe. It is an exact opposite of the authoritarian theory which places all forms of communication under direct control of the government. Watson (2000) its first principle is that the free press is servant to none but buts readership in its task of informing, educating and entertaining. It is believed that international trade and urbanization undermine the power of a rural aristocracy which leads various social movements like the Protestants reformation, which demands individual’s freedom and their own lives and free thoughts. Liberalism means information is knowledge and knowledge is power. Free expression from any authority, unchecked by censorship- internal or external. Libertarianism claims fearlessness in the pursuit of the truth.
The libertarianism is an idea of individualism and limited government which is not harmful to another. This theory advocates that people have the power to find and judge good ideas from bad. The theory says people are rational and their rational thoughts lead them to differentiate good from bad. The press should not restrict anything as even a negative content may impart knowledge and can make better decisions while at the worst situation.
The theory enables people to realize their potential and since news is about people making the news, the press reminds us that the society has not grown to an entity of greater importance than the people comprising it. Whether or not we regard free press as a natural right depends upon how much we assume that people desire to know the truth and will be set free by it.
Libertarians basically follow dictates of their conscience, seek truth, engage in public debate and create a better life for themselves.
Conceptual framework
In order for the press to stay as the society’s watchdog, absolute freedom I necessary. Freedom of press gives the media more freedom to reveal the real thigs happening in the society without authority blockades. Absolute freedom should be duly enshrined the constitution of Kenya in order to prevent external forces from interfering with the press in the country.
Absolute freedom of the press gives more value for individuals to express their thoughts in media. As such, there will be free flow of information in the society. With libertarian theory, it is too positive about individual ethics and rationality.
Consequently, media freedom will root out social vices such as corruption

Summary
This chapter digs deeper in the concept of press freedom in Kenya. the researcher analyzes what other researchers and scholars found out about press freedom in Kenya. In this chapter, the researcher compares what one scholar found out in his research and compares it to another researcher’s findings. Most of the research and reports released about press freedom in Kenya show that there is interference in the work of the press. These findings reveal that the interference range from ownership to economic aspects. these give a loop hole for suffocating media houses in the country.