The wording of Kenya's Freedom of Information Bill may force journalists to reveal their sources, writes Peter Mwaula in the Daily Nation.Ãƒâ€šÃ‚Â
Peter Mwaura writes in the Daily Nation:
Every citizen now has the right to access any information "held by another person" if he requires it to protect any right or fundamental freedom.
Although the draft does not actually say so, the term "another person" must include journalists and whistle-blowers.
It means, therefore, if you need, for example, to know the confidential sources of a journalist to defend yourself in court or to clear untrue or misleading information, the journalist must disclose the information to you.
This is the import of section 52 (1) (b) on access to information. The section is well-intentioned, no doubt, but it has implications for the freedom of the press and poses a threat to whistle-blowers.
While the section affects anyone who holds information, it is obvious it affects mainly journalists because, apart from members of the intelligence, journalists are most likely to hold information of a confidential or sensitive nature.
The section squarely pins them down to reveal their sources and confidential information.
Yet journalists need protection not to reveal confidential information or unnamed sources. Not because they are a special breed of citizens exempt from the obligations of ordinary citizens, but because they play a special role in society as providers of information and as public watchdogs.
Journalists impart information and ideas on matters of public interest. Their right to protection is based on the public's right to know.
Unless journalists can honour confidences, sources of sensitive or confidential information easily dry up. The loser is the public.
Journalists should be able to operate freely as they are the primary source of news and information for the public.
The public's right to receive information will be obstructed if journalists are forced to reveal their sources.
The protection of journalists not to disclose confidential sources is central to press freedom. That is why section 52 (1) (b) is a threat to press freedom, and investigative journalism in particular.
Without confidentiality of sources, the reporting of major scandals, such as the Goldenberg and Anglo-Leasing money schemes, would not have been possible. Nor would the American Watergate story, a major political and journalistic event of the last century, seen the light of day.
Much of the reporting of the Watergate – a scandal involving abuse of power, violation of public trust, bribery, contempt of US Congress, and attempted obstruction of justice – was based on information from confidential sources.
The Washington Post reporters Bob Woodward and Carl Bernstein used mainly confidential sources whom they promised anonymity, to report the Watergate scandal that forced President Richard Nixon to resign from office in August 1974.
Until very recently, nearly three decades later, the American public did not known who "Deep Throat" – one of the major sources – was because he was promised anonymity by the reporters.
When the University of Texas acquired the Watergate papers of the Washington Post reporters (for $5 million) in April 2003, a limited number of items remained sealed until the deaths of sources to whom the journalists had promised confidentiality.
Section 52 (1) (b) will make it more difficult to expose wrongdoing.
The authors of the draft should have worded the section in such a way that Parliament can make the appropriate law on access to information without crippling investigative reporters.
The law, as it stands now, allows courts to order a journalist to disclose confidential sources if non-disclosure would bring about an injustice and if the information is not available from other sources.
This is the practice in most democracies.
On July 28, 2006, for example, Nairobi resident magistrate Felix Kombo ordered journalist Evelyn Kwamboka to appear in court to reveal the source of her story on the "Deya miracle babies". He later dropped the summons.
On December 11, 2002, the International Criminal Tribunal for the former Yugoslavia, which had summoned Jonathan Randal, a former Washington Post correspondent in Yugoslavia to testify, accepted the correspondent's arguments that if reporters were seen as potential prosecution witnesses instead of independent observers, it would prevent them from obtaining key information because people might speak less freely.
Confidentiality of sources is so essential to freedom of the press that many countries have enacted "shield laws" that generally protect journalists from revealing names of people who give them information in confidence.
It is unfortunate that section 52 (1) (b) makes disclosure mandatory for everybody.
It could have a chilling effect on the readiness of confidential sources to provide reporters with information.
* This article first appeared in the Daily Nation on