Kenya’s High Court has given press freedom a major boost after it
nullified a 2001 Government order requiring broadcasters to submit
their entertainment programmes for approval before being aired, writes
Eric Nyakagwa.

The order made by then Information, Transport and Communications minister Musalia Mudavadi was declared null and void by the High Court’s Constitutional section, which termed it unnecessary and unjustifiable in a democratic society.

The Nation Media Group , the leading media house in Kenya, had gone to court in July, 2002 to challenge the order, which required, among others, broadcasting networks to obtain a certificate of approval from the film licencing officer and the Film Censorship Commission before airing certain programmes to the public.

In their landmark ruling, Justices Joseph Nyamu and Milton Makhandia said the minister, who purported to act in exercise of the powers conferred on him by the Films and Stage Plays Act, violated freedom of expression and related rights as enshrined in the country’s constitution.

They termed the gazette notice to be arbitrary, saying it does not satisfy the principle of legality.

“The implications of the gazette notice far outweighs the mischief sought to be contained,” they said.

They noted that in this time, there cannot be any justification for granting arbitrary powers to an entity in matters pertaining to freedom of expression.

Mudavadi issued a gazette notice on June 6, 2001 notifying all broadcasting networks, cinema theatres, production houses, advertising agents and all those concerned that all films for public exhibition whether foreign or locally produced should obtain a certificate of approval.

The films, including television commercials, dramas, comics, documentaries and features, were to obtain a certificate form the film licensing officer and the Kenya film censorship board before being exhibited.

The court said that the notice was a curtailment of the fundamental right of freedom.

“In our broad, general and purposive construction and interpretation of the constitution, we are of the persuasion that the limitation does not satisfy the principal of proportionality,” Justices Nyamu and Makhandia said in their judgement.

An affidavit sworn by the Nation Media Group managing chief executive, the gazette notice would deny the media the right to provide information to members of the public.

He also pointed out that the notice would threaten the viability of various locally produced television programmes thereby denying the media and members their opinions in the forums provided by the programmes.

The court emphasised that the reason why it should be more guarded in cases involving freedom of expression is that this is the doorway to other fundamental rights.