The Constitution of Kenya

The Constitution of Kenya (2010) marked an important achievement in Kenya’s history. It was perceived as a breakthrough in media freedom in Kenya. While the constitution stipulates the media should be free in its activities, the press is still undermined in playing its role as a watchdog. This is due to several laws passed by the parliament. Several studies and reports about the freedom of the media in Kenya have been done over time, for instance The Democracy Index report 2017 places Kenya among countries with partially free media free because of the existence of repressive laws. However, the existing literature is insufficient to explain the situation at hand. Thus the researcher conducted the study in order to acquire new information that was left out by other researchers. This new information would then give more light on the same. The research objectives were; To evaluate the constitutional provisions on freedom of the media and the limitations stated therein, to analyze the limitations on media freedom under the Kenya Information and Communications Act and the Media Council Act vis a vis the limitations under the constitution and finally to analyze the shortcomings of the constitution in protecting the media. The research questions were; What are the constitutional provisions on freedom of the media and the limitations stated therein? What are the limitations on media freedom under the Kenya Information and Communications Act and the Media Council Act? and What are the shortcomings of the constitution in protecting the media? The research involved content analysis of materials on freedom of media in Kenya; review of books, articles, journals, research papers and case laws in the subject area. These materials touched on media freedom between 2010 and 2018. The sample size and time was limited to materials on media freedom touching major media houses in Kenya namely Nation Media Group, Standard Group, Royal Media Services, Mediamax and Kenya Broadcasting Corporation as the researcher used purposive sampling. The data collected was analyzed qualitatively. The researcher missed out on some instances which show to what extent the media is free. This limitation, however, did not in any way affect the research in as far as the findings were concerned. The study is of importance to the government of Kenya as it will give them a clear understanding of the state of media freedom in the country so that they make amends where necessary. Libertarian theory was used in the study because it supports freedom of the press. The study found out that the parliament plays a big role in restricting the media and that the police rarely investigate cases brought to them by journalists pertaining their harassment and recommends the government to put measures that will ensure laws in the constitution are not violated by members of the parliament.

CHAPTER ONE
1.0 INTRODUCTION
This chapter talks about media freedom in general and why the researcher felt the need to carry out the study.
1.1 Background of The Study
Since independence, laws governing the media in Kenya have been amended over time thus changing the state of freedom of media in the country. During the Moi regime, the press enjoyed limited freedom as there were very stringent laws imposed on them. These laws were scraped of in the Constitution of Kenya which was promulgated in 2010. This constitution protects media freedom in three of its chapters; 33, 34 and 35.
In the world, the media plays a crucial role of ensuring the flow of information and ideas in order to enable the public to contribute to decision making. A democratic society cannot exist without it. This basic requirement is recognized all too well by despots and dictators whose first step in seizing political power is to take control of the media.
In Kenya, the media functions as a branch of the government which supervises the three arms of the government. However, taking up this role has not been easy as the journalists’ rights are infringed. Despite the constitution being clear on press freedom in Kenya, political censorship on the press is still seen. Harassment of journalists goes to the extent of physical and verbal abuse due to their investigative work. This supervision of the media on the government has prompted the lawmakers to pass several stringent laws that limit journalists in what they report on.
Several studies concerning the state of press freedom in Kenya have been done over time. However, the existing literature is insufficient to give light of the situation at hand. Laws such as the Kenya Information and Communication Act(KICA) and the Media Council Act (MCA) were passed in a bid to gag the media. The researcher thus is determined to look into such laws and assess their constitutionality and the shortcomings of the constitution in protecting the press.
1.2 STATEMENT OF THE PROBLEM
The constitution has several gaps that give room to violations of press freedom in the country. Such setbacks remain the biggest hurdle in actualizing press freedom in Kenya. Consequently, the constitution has been left as a toothless dog in protecting the media. Repressive and claw-back laws have been passed by the members of parliament leaving the press vulnerable and unprotected. Journalists are therefore arrested for reporting on certain matters. “Arrests and intimidation of journalists have threatened a return to oppression where the media could do little but to bring those in power to account,” (Wafula, 2015). The study thus focused on giving light to these gaps and the violations of press freedom that have arisen as a result of the gaps.
1.3 Objectives of The Study
To evaluate the constitutional provisions on freedom of the media and the limitations stated therein.
To analyze the limitations on media freedom under the Kenya Information and Communications Act and the Media Council Act vis-a-vis the limitations under the constitution
To analyze the shortcomings of the constitution in protecting the media

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1.4 Research Questions
What are the constitutional provisions on freedom of the media and the limitations stated therein?
What are the limitations on media freedom under the Kenya Information and Communications Act and the Media Council Act?
What are the shortcomings of the constitution in protecting the media?
1.5 Significance of the study
The study is of importance to the government of Kenya as it will give them a clear understanding of the state of media freedom in the country so that they make amends where necessary.
1.6 Justification for the study
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 flaws of the constitution on matters press freedom and give recommendations on the same.
1.7 Scope and limitations of the study
The research involved content analysis of materials on freedom of media in Kenya, that is, review of books, articles, journals, research papers and case laws in the subject area. These materials touched on media freedom between 2010 and 2018. The sample size and time was limited to materials on media freedom touching major media houses in Kenya namely Royal Media Services, Nation Media Group, Mediamax, Kenya Broadcasting Corporation and Standard Group.
The researcher missed out some instances which show to what extent the media is free in Kenya. This limitation, however, did not in any way affect the research in as far as the findings were concerned.
1.8 Ethical considerations
Credit was given where necessary. This involved quoting of sources where information was retrieved and referencing the sources at the end of the study.
1.9 Summary
The Constitution of Kenya (2010) is the ultimate tool used in Kenya in matters law. Therefore, the study sought to find out its vulnerability and strength in protecting the media in Kenya. The study objectives and research questions used in the study sought to find out which gaps are in the constitution when protecting the media. Major media houses are focused on as they give a clear picture of the state of media freedom in Kenya.

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