The Media and Kibaki's Government

Following the departure of President Daniel arap Moi’s media-bashing regime, the political vacuum created was filled by people many journalists believed would open the democratic space necessary for free speech and courageous journalistic exposes. Both the Narc leaders and journalists believed the final outcome of the demise of Moi’s administration would be better and friendlier relations between the new Executive and the Fourth Estate. That expectation, however, proved to be futile. On the government side leadership was gradually becoming just as secretive as Moi’s rule and on the media side it was quickly realised that survival depended on upholding professionalism through investigative journalism which, as we all know today, exposed new skeletons in the young government’s cupboards.

As the felicity of prose prospered wananchi began to respect the media and accept the Fourth Estate not as an appendage of the government but as a powerful institution capable of criticizing those in power and abusing it. Among the first journalists to take the publish-and-be-dammed attitude in exposing corruption in Mwai Kibaki’s regime was Kamau Ngotho of The Standard; but in doing so he made some powerful ministers, particularly Mr. Chris Murungaru, to be so appalled that he made a public statement early this year threatening to take drastic steps against journalists like Kamau Ngotho. No sooner did Murungaru make his threat than Ngotho was quickly arrested and charged with criminal libel.

The Anglo Leasing Scandal

The story that annoyed the government most concerned the now well known Anglo Leasing scandal. Though still convoluted and obscure, the scandal sprawled across Kenyan’s both print and electronic media. Murungaru was obviously rattled by the ferocity of the media onslaught and when he rolled out his gun Ngotho was behind bars. It took the condemnation of international media institutions to make the government water down its fury and realize it was heading for a fight not only with local journalists but with the entire journalistic fraternity in the free world. The international pressure was so great that on January 17th this year the Attorney General, Amos Wako, decided to drop charges against Ngotho.

Soon after that Reporters San Frontières (RSF) praised the Kenya as one of the few countries in Africa that was determined to ensure that press freedom was respected. Realizing that Kibaki’s Government cared so much about what the Western world thinks about it the RSF emphasized that Wako’s move was supported by Western Embassies and reiterated that this kind of initiative should be taken more often. According to RSF the charge against Ngotho for implicating a government official and an associate of the President in alleged corruption outraged many ambassadors, who noted that the prosecution would violate certain provisions of the constitution.

In the eyes of many international journalistic organizations, the Ngotho case exposed Kibaki’s government as a dictatorial one. Long before he was freed, both the Committee to Protect Journalists and the International Federation of Journalists had called on press freedom advocates to write protesting letters to the Kenyan Government.

The world was about to forget the rough times journalists in Kenya go through when on May 2nd this year the First Lady ,Lucy Kibaki, reminded everyone that she was not so happy with the media in this country and was not intending to turn the other chick. In that feeling she was joined by the First Lady in Nigeria, Stella Obasanjo , who also wanted journalists in that country to realize that she was not just another market woman they could play about with. The two ladies decided to take drastic steps against the media and their actions made the RSF to express shock over what they saw as the abuse of authority. In Nairobi Lucy went to the premises of Nation Media Group and spent five hours complaining about “unfair” reports. The nature of her complaints exploded beyond her control when she was televised assaulting a KTN cameraman ,Clifford Derrick Otieno, who was filming the First Lady as she was shouting to journalists in the newsroom. She was clearly shown slapping Clifford.

Abuse of Authority

On May 6th RSF expressed shock over the abuse of authority displayed by the wives of Presidents Mwai Kibaki of Kenya and Olusegul Obasanjo of Nigeria in assailing and imprisoning journalists in separate incidents on May 2, 2005, in response to critical press reports. In a statement the French organization said: “We are stunned that the Presidents’ wives went so far just to seek personal revenge. We therefore call on Lucy Kibaki to apologize to the cameraman she hit and we call on Stella Obasanjo to have the Midwest Herald’s publisher released from prison immediately as such meddling harms the image of the respective countries.”

Unfortunately for both Kenya and Nigeria, statements issued by the international organizations are circulated all over the world and we are made a laughing stalk as a people with little respect for free speech when we pretend to be democracies. On May 20 this year RSF issued yet another global statement and voiced concern over what it called “current state of relations” between the Kenyan media and President Mwai Kibaki’s administration, which had deteriorated sharply over the past two weeks in a series of public clashes that were all the more shocking as Kenya was regarded as a country that had enjoyed relative stability until then. The French said President Kibaki should realise this battle with the privately owned media would only lead to an even worse situation. The mounting threats, harassments and attack against the press were not only very bad examples for Kenyan society, but also the sign of something beginning to go awry with the country’s democracy.

One of the most abominably notorious characteristics of despotic regimes out to muzzle the media is to make use of the courts as battlegrounds and the laws of libel – both defamatory and criminal – as lethal weapons against outspoken journalists. The awards of very high damages to plaintiffs complaining of exposure to hatred, ridicule and contempt by the media have made many observers of Kenyan Fourth Estate’s relationship with the Third Branch wonder whether or not the Bench here is not used as a political weapon. One such award took place in May this year when a Mombasa High Court ordered the Nation Media Group to pay ten million shillings in damages for allegedly libeling Justice David Musinga in a 1999 when Musinga was a lawyer.

International critics of mistreatment of journalists in Kenya were quick to unearth this phenomenon as they observed that Press offences in Kenya were no longer punishable by imprisonment but through disproportionate sums in fines and damages ordered by judges and magistrates. Sometimes the Attorney General stepped in to disrupt the flow of justice whenever journalists were the victims. The most recent example of this was when Wako blocked legal action against Lucy Kibaki as Clifford Derrick Otieno wanted the assistance of the Judiciary to make sure that justice was not only done but it was manifestly seen to be done following the Nation House May 2nd disastrous behaviour by the First Lady. Though unknown to most Kenyans, Wako’s action was globally condemned by no less an organization than the International Press Institute (IPI) which expressed its concern about the decision to discontinue criminal legal proceedings against Lucy Kibaki. Clifford Derrick Otieno had filed the criminal proceedings against Lucy on May 16th this year.

According to the IPI, the global network of editors, leading journalists and media executives in over 120 countries, the exercise of nolle prosequi by Amos Wako should not have been used as a political tool to frustrate the legislative rights of Kenyan citizens to pursue legal proceedings against politically powerful people who habitually disregard the law. The IPI saw the move by Wako as political in nature and intended for the sole purpose avoiding undue embarrassment to the political leadership of Kenya. It added that the fairness of any legal system rests on the belief that the rule of law is applied without fear of favour to any individual, group or institutions. The international organization told the world that the law had been applied in Kenya in an arbitrary fashion and revealed what it called twin-track legal system that assists those in power, and their partners, while denying rights to ordinary Kenyan citizens such as Otieno.

International Watchdogs

It is very easy to criticize international watchdogs and whistleblowers commenting negatively against Kenyan anti media heavy handedness and hostility to journalists as unfairly imposing but it must be remembered when good things happen in our courts international organizations also notice. When, for example, the Sunday Standard Managing Editor, David Makali was acquitted of criminal charges on April 4th this year the Committee to Protect Journalists (CPJ) wrote from New York to tell the world about the case which was pending since 2003 when the paper published leaked excerpts of confessions made by suspects in the Odhiambo Mbai murder case. Acquitting Makali Nairobi Chief Magistrate Aggrey Muchelule said to convict Makali would contravene guaranteed access to official information.

“We welcome this verdict and interpretation it provides in favour of Press freedom,” said Ann Cooper, Executive Director of CPJ. “We hope this verdict will help to ensure that all Kenyan journalists are free to report on matters of public interest without fear of reprisal.” Soon after those words of caution from a respected international organization were circulated all over the world, the court imposed a heavy damage of three million shillings against Royal Media Service to Foreign Affairs Minister Ali Makwere. The suit arose from a story published in the Press alleging that a Cabinet Minister, an Assistant Minister and an MP had been filmed by police along Nairobi’s Koinange Street picking up prostitutes. The defendant attempted to bring a witness, Miss Immaculate Mwende, obviously trying to use the defence of justification, but Makwere’s lawyer successfully blocked her from testifying.

According to a respected media law scholar, G.F.L. Bridgman, justification is the most complete and final defence that can be made to libel (by proving) that the words complained of were true in substance and fact. He argues that this defence to an action will be seen when it is appreciated that an action for defamation is an action for injury to reputation and a man cannot recover damages for injury to a reputation, which he either does not, or ought not to possess. To plead justification successfully, he says, the whole of the libel must be shown to be substantially true. But Justice Phillip Ransley agreed with the plaintiff’s lawyer and rejected Mwende’s evidence even before it was presented to the court. Instead he seemed to agree with Makwere’s implied claim to have evidence of the depth of degradation to which the Kenya media would stoop to throw mud at Kibaki’s administration by alleging that he had made a nocturnal visit to Nairobi’s red light district along Koinange Street.

Both journalism and legal scholars have always regarded libel laws as possible political weapons to muzzle free speech. According to Donald M. Gillmor, Professor of Media Ethics and Law at the University of Minnesota, libel litigation has become a devastatingly effective weapon for silencing those who dare to challenge the morality of power, privilege, and prestige. He says plaintiff and defendant battle in a confined judicial arena (where) public discourse is circumvented. He argues that “libel law is a powerful weapon for shutting up those with whom you disagree.” Recent awards of huge sums of money, including a 14 million damage given to Joseph Kamotho, against the Nation Media Group, inevitably make one wonder whether there is some collision between the Judiciary and the media. The awards have provoked so much soul searching and debate in both media and academic circles making the two groups have reservations about whether libel cases in Kenya are conducted in a fair way.

Frequent Libel cases

The toughest question to answer is whether frequent libel cases and high damage awards are healthy for freedom of expression. Whatever court pronouncements may be on this issue the fact remains that the Kenyan society will always need both a probing and vigorous Forth Estate to achieve real transparent and accountable democratic uprightness needed in a free society. Indeed even court proceedings themselves require an enterprising media to ensure that justice is not only done but it is manifestly seen to be done.

Yet, when all is said and done, both the Fourth Estate and the Third Branch need one another. In the words of Judge Judith S. Kaye, the Chief Judge of the State of New York: “We live in a society awash in media accounts of law, feeding a seemingly insatiable public thirst for legal subjects. Pick up a newspaper , flick on TV, and chances are you will find depictions – real of fictional – of the latest trial of the century, analyses and current trends in crime or punishment, reports on the doings of high-profile attorneys and plethora of pundits commenting all the above.” Rather than imposing heavy damages against the media, Kenyan judges, should try to implement Judge Judith’s call to both the Bench and the Fourth Estate. To begin with she suggest that there should be a more balanced coverage of courts which would recognize the limitations of judicial speech and seek out the views of those with less access to media coverage – representatives of the local bar , for example , or academics – when legal decisions are criticized.

She says this may require legwork, but given the enormous power of the media to shape public opinion, and the tremendous role that the public confidence plays in the effectiveness of the judicial branch the extra effort is surely warranted.

From colonial days the various Executives in Kenya have had their quarrels with the independent Kenyan Press. The free Press, likewise, have not been particularly happy with the performance of those in political power. The fundamental misunderstandings have always been based on two divergent outlooks: The politicians in power have always wanted to manipulate the Fourth Estate to get their best image across to the wananchi and yet the journalists have always wondered how they could fulfill their obligation to publish the truth about information and news without proper accessibility to vital information without governmental hindrances.

It is probably with this in mind that President Mwai Kibaki recently announced at the International Press Institute conference in Nairobi that his Government intended to introduce a Freedom Of Information (FOI) Act. No sooner did the President make that announcement than Raphael Tuju, the Minister for Information, published a FOI Act of 2005. The draft Act has both good and bad news for journalists. The good news is to be found in Section 45 of the Act which proposes to repeal the draconian Official Secrets Act CAP 187. Among the bad news that is brought about by the Tuju Act is to be found in Section 7(2) which says a person is not entitled to obtain access under this section to a document or a part of document that became a document of agency before the date of commencement of this part. In a layman’s language it means journalists will not be able to get accessibility to important information of past dirty activities of the powerful such as the origin of Goldenberg scandal and massive land grabbing under Jomo Kenyatta. Of what use then, one is tempted to ask, is Tuju’s FOI Act to this country?

How the Referendum was Covered

One of the most disappointing aspects of the coverage of the referendum by both the print and the electronic media in Kenya was that most journalists seemed to be more concerned with the “Game of Strategy” rather than the “Substance” of the referendum. It was very much like the way they covered the 1979 general elections and like Prof. Marcel Rutten of University of Leiden, Netherlands, and I said at that time in our Chapter of the book Democracy in Kenya, most of them obviously found the “game” to be of greater interest to both editors and the readers because it concerned itself with the race in the referendum. Journalism scholars call this kind of interest in the coverage of political contests the “Game of Strategy” because, like in any other game, it has a winner as well as a loser. The exciting story of how the race was taking place and how the Orange group was struggling to take over the leadership from the Banana group was always of a great interest to Kenyan readers, viewers and listeners. People enjoy competition and they take chances in backing both winners and losers. Many journalism scholars have compared election competition, and a referendum is a form of this competition, with that of horse racing and the excitement of the two is more or less the same.

When journalists get carried away with the competition element of the referendum they tend to forget a much more important aspect of the process which concerns the ‘Issues’ involved. According to Dean E. Elger, Associate Professor of Political Science at Moorhead State University in Minnesota, 70 per cent of all the news of political contests especially during election time is about the “Game” rather than the “Issues”. The coverage of the November 2005 referendum in Kenya was more or less based on the “Game of Strategy” rather than the “Substance of the Referendum”. To examine what the coverage of the referendum was like, it is important to separate the two aspects and look at them in greater details:

The Game of Strategy

As pointed out earlier, journalists in Kenya tended to pay greater attention to the “Game of Strategy” rather than the “Substance” of the referendum because they seemed to look at two major aspects of the two groups: (a) their styles and (b) their images. They wrote long articles about the various styles adapted by the Orange group and Banana groups which varied from addressing public rallies to open violence.

When all this happened reporters covering the referendum were more or less only concerned with the strategy and logistics of winning and so all they wrote about was what Elger would call ‘Appearance and Hoopla’. In other words the reporters were only concerned about how much popularity the groups were gathering as they conducted their campaigns.

There were many examples to prove this point and the following demonstrate Kenyan journalists’ overzealous concern with appearance and hoopla promoting horse racing journalism and emphasizing competition which bordered on dangerous conflict: The Standard of September 12 had a splash headline saying “Voices of Combat” with a strap-line reading: “CONSTITUTION: Ministers intensify ‘yes’ and ‘No’ battle over review Bill as some accuse Raila of plan to oust Kibaki govt through referendum”. The story said: “Chants of ‘Yes’ and ‘No’ continued to reverberate across Kenya yesterday as leaders intensified their support or opposition to the proposed new constitution. Roads Minister Raila Odinga led the ‘No’ brigade to a rally in Malindi where it declared the war was won as Vice President Awori, who is holding brief for President Kibaki who is in the United States , took the battle for the ‘Yes’ to Central Kenya.” In that well-done and punchy 70-word intro words that suggest adversarial confrontation are deliberately used again and again and they are: brigade, war, battle ! An excellent example of hype and hoopla!

The Daily Nation of September 13 had a splash headline reading “Shots Fired as Kanu MPs Clash over Constitution”. The kicker said: “Serut punched and kicked after bribery claim” and the story read: “Shots were fired as tension over the proposed new Constitution erupted into violence at a funeral attended by former President Moi and rival Kanu MPs. There was chaos in the VIP enclosure when local MP John Serut was punched and kicked after trying to talk to MP William Ruto.” An excellent example depicting the style used by leaders in the referendum contest – typical “game of strategy” story.

The Independent of September 31 had a sensational headline reading: “Referendum Shock as…Raila, Uhuru hire Mungiki.” The story claimed: “According to well-placed sources, Mungiki is back in full force and enjoying the services of a senior politician in the Opposition. The onset of campaign for the Draft Constitution has provided a fertile ground for all these organised bands of rumble (sic) rousers as the campaign for YES and NO heats up. The violence that was witnessed in the No rally at Thika Stadium last week is a pointer of things to come as the No and YES protagonist (sic) intensify their campaign ahead of the November 21 referendum”. This was yet another “Game of Strategy” story based on very scanty facts though it led to the arrest of suspected Mungiki leaders.

In a story headed “ 2007 Battle Begins” The Kenyan Spectator of September 29 said: “ Behind the headline chaos touching the campaign rallies ahead of November 21 constitutional referendum are strategic boardroom manouvers (sic) meant to woo voters, in styles similar to a general election. The Kenya Spectator opens the curtains in both the Orange and Banana camps, for you to see the game of money, wit, charm, deception and partly high-tech mechanism going on in the recently unveiled secretariats.” Typical hype and hoopla!

In its issue of September 23-29 The Leader splash story “We will Topple Kibaki, Orengo Finally Reveals” says: It’s no longer secret. The Opposition to the Wako Draft Constitution by the naysayers is an excuse to take over power from President Mwai Kibaki. This bold declaration last week by former Ugenya MP, James Orengo is bound to raise temperatures further in the banana-orange imbroglio over the country’s future constitutional dispensation.” Yet another “Game of Strategy” story.

The Times of October 4’s splash headline read “Wako, Kalonzo Clash” with a strap-line saying “Ministers Trade ‘lies’ Charge in Public over Constitution.”. The story said: “Attorney General Amos Wako and Environment Minister Kalonzo Musyoka yesterday clashed in public over the draft constitution. Elsewhere three Ministers found themselves in trouble when they attempted to crusade for Yes vote at an international conference . In the first incident, Mr. Wako uncharacteristically locked horns in public with colleague Kalonzo and accused the later who is a leading light in the Orange team of spreading malicious propaganda on the contents of the proposed constitution ….Meanwhile Cabinet Minister Joseph Munyao, Martha Karua and Assistant Minister Beth Mugo were booed and urged to return to their seats when they allegedly digressed from the official matters and delved into the Orange and Banana debate. The trio were guests during the official ceremony to mark World’s Habitat Day. This year’s ceremony was hosted by the Mavoko municipal council in Athi River.” Game of Strategy!

According to the first Chairman of the Constitution of Kenya Review Commission, Prof. Yash Pal Ghai, a referendum is an important device for the expression of the consent of the people. But we ought to remind ourselves, he says, that referendums can be manipulated and have been used by dictators to bolster their regimes. In an article published by The Sunday Standard of October 23, he says the referendum offered a choice between ‘Yes’ and ‘No’ (but) did not give the people the right to make decisions. He warned that a referendum was not necessarily a constructive device in multi-ethnic societies as it tended towards ethnic polarisation. The most important question to ask following that remark by the professor is whether or not the journalists engaging in the game of strategy in reporting the referendum were themselves victims of ethnic polarisation.

Journalists from all the national and alternative media mentioned above may very well claim that all the stories I am talking about did indeed take place and they were only fulfilling their professional duties of complying with the news values of timeliness, human interest , proximity, consequences , impact and prominence. That may be so but it does not change the fact that they highlighted the Game of Strategy and paid very little attention to the Substance of the Referendum which unfortunately they chose to sweep under the carpet despite its important role in the entire exercise. So what really could they have done? What was the Substance of the Referendum anyway?

The Substance of the Referendum

Given the fact that the Kenyans voters who are regular newspaper readers and customary TV viewers or constant radio listeners are among the elite in our society, the coverage of the referendum became more demanding than the provision of stories based on mere “Games of Strategy”. These were the people who wanted to know from the media a little bit more of the analysis of the various interpretation of the content of the proposed constitution.

Journalists who were interested in the substance of the referendum became serious writers who provided their readers with what professionals call ‘backgrounders’, news analysis and commentaries about new proposals compared with what is contained in the current constitution. The ‘race horse’ drama of who was winning the referendum and who was losing was brought about in their reports in the form of letting the people know what they stood to gain or lose by making whatever choice they made. This kind of analytical coverage of the referendum tended to be the exception rather than the rule and was mainly confined in a handful of the up market media of the Kenyan society such as The East African and The Daily Nation and to a lesser extent The Standard.

Two journalists were outstanding in their presentation of the substance of the referendum to the public – Louis Otieno of KTN and Rose Kamotho when she chaired the first great debate covered live by almost all the radio and TV stations in the country. Ms Kamotho as the chairperson of the debate was tough and tried her best to make the participants dwell on real issues rather than hype and hoopla. For this she was seriously attacked by David Ochami , a senior staff writer of Sunday Time who commented : “What had been anticipated and marketed as Kenya’s biggest debate easily degenerated into an anticlimax thanks to the moderator’s recklessness and bias. Rose Kamotho achieved what she and the Media Owners’ Association had planned beforehand i.e. to strike a blow for the banana campaign. As they celebrated their genius journalism was left the poorer and the silent majority of journalists the shamed.” Well presented argument but based on what evidence? The majority of readers’ views’ and listeners’ reaction called for more debates based on facts contained in the new proposals but obviously Ochami did not think so. Could he also be a victim of ethnic polarisation? The report of the debate was fully covered by the Daily Nation and a short story about it appeared in The Standard of October 19. Whether the debate and the Daily Nation story helped the voters make up their minds the result clearly tell whether or not Ochami accepts them.

Over a million Kenyans saw Ms. Kamotho stopping Prof. Anyang Nyongo from attacking Citizen Radio and urged him to be relevant and discuss the content of the proposed constitution. During the debate Raphael Tuju challenged his opponent to point out differences in the content of the Boma’s Draft and the proposed draft as far as land issues and Bill of Rights were concerned. The Orange team were up in arms arguing that the Boma’s draft was not the subject of the debate. Yet as soon as they left the studio they told various public rallies that they backed the Boma’s draft. Why couldn’t journalists pin them down to declare their real stand?

What was most noticeable among Kenyan journalists was their preference to concentrate on issues concerning disagreements among the leaders so that the stories they wrote tended to be rather sensational. This was in keeping with the journalists’ desire to highlight issues concerning conflict as human-interest stories. Another aspect of concern for reporters interested in the substance of elections was the two groups’ traits and record. In a minority of cases serious journalists reviewed all the candidates’ past positive and negative contribution to the society and predicted what was likely to happen when the people either rejected or accepted the proposed constitution.

This kind of analysis was not done adequately in the referendum yet it was clear if used effectively it could rid Kenya of the culture of blindly agreeing with leaders whose only qualification was the tribe they belonged to or the support they got from bigger godfathers. It was the kind of journalism that would have made people take a stand based on informed position rather than simply agreeing with leaders because they came from the same tribe or even clan. The notion that journalists would always highlight human interest issues caused by odd incidents was proved right during the campaign for both Orange and Banana groups when even the most serious among them pegged their otherwise unprejudiced analysis to petty incidents of conflict, adventure and self interest.

This meant no matter how much journalists wanted to dwell with the “Substance of the Referendum”, the factors and orientations of news production pushed them to see serious interpretation of the new proposal and comparison with the current constitution to quickly losing their ‘newsworthiness’ whereas campaign missteps and the bizarre events of the whole process were ‘fresh occurrences’ which adequately answered the journalist news value requirement of timeliness. Unfortunately once leaders made known their position on an issue, further statements concerning that issue declined in news value sense. Therefore journalists covering the referendum had to have a good nose for news to produce good copy after sitting through innumerable repetitions of speeches by the same people talking about the same issues in different parts of constituencies.

One area that totally failed in Kenyan journalism in so far as the coverage of the referendum was concerned was the little attempt made by the practitioners to get exclusive stories from leaders from the two groups on significant interpretation of specific parts of the new proposal and what is contained in the current constitution. That would have led to real assistance to the voters by laying bare at least two aspects of the two groups:

1. Whether they had adequate knowledge about the matters highlighted in the new proposal compared with the current constitution.

2. Whether their stand on such important issues as the country’s constitution were actually reasonable and not mere tactic to win peoples’ support.

On Kenyatta Day President Kibaki tried hard to dwell on the substance of the proposed constitution by explain to voters about the consequences of voting No. According to The Standard of the next day, October 21, the President said: “On November 21, we shall all be participating in a historic referendum to decide whether we adopt the proposed constitution or remain with the current Constitution.” The Standard report continued: “But the Orange team that is asking Kenyans to vote ‘No’ on the proposed Constitution reacted angrily to this assertion and accused the Government of hoodwinking Kenyans. In a statement faxed from its secretariat, the No campaign team said the referendum was not about the current or the proposed constitution. ‘It is about determining whether the proposed constitution is good for the country or not. The choice is between the flawed Wako Draft and the new, better constitution agreed through a consultative process that is acceptable to the majority of Kenyans”. So who was right? The President or the Orange secretariat? The Standard didn’t say.

The answer was probably to be found in the Daily Nation of September 6, a day after the Electoral Commission Chairman; Samuel Kivuitu launched the Orange and Banana teams. According to the splash story titled “D-day for Historic Constitution Vote” the paper said: If the Yes voters win, it will pave the way for the new constitution and will become the third since independence 42 years ago. But if the No voters triumph, Kenya will keep the current constitution that has governed the nation for the same period and has been vilified for vesting too much power in the Presidency.” At that time there was no reaction from the Orange group.

According to one great editor, C.P. Scott, comment is free but facts are sacred and that is the one aspect of Kenyan journalism where the ethical importance of Impartiality was be put to test during the coverage of the referendum .These famous words by Scott are at times forgotten by Kenyan journalists when they ignore the vital question of separation of news from comment, or the religious avoidance of what in current usage is termed tendentiousness. Americans simply call it editorializing. Though Scott’s words have been classic, they tend to lose much of their force if divorced, as they commonly are, from their context.
What C. P. Scott said was: “The newspaper is of necessity something of a monopoly, and its first duty is to shun the temptations of monopoly. Its primary office is not the gathering of news .At the peril of its soul it must see that the supply is not tainted .Neither in what it gives nor in what it does not give, nor in the mode of presentation, must the unclouded face of truth suffer wrong. Comment is free, facts are sacred. Propaganda, so called, by this means is hateful. The voice of opponents no less than of friends has a right to be heard. Comment is also justly subject to a self imposed restraint. It is well to be frank; it is even better to be fair.” According to yet another journalism scholar, Wilson Harris, the highest canons of journalism could find no better definition than that.
Yet even Harris admits that this is not quite all the story. He says the question how far it is the function of the Press to give the public what the public wants is still worth asking. Here, of course the element of competition enters in. It is convenient to speak generally of the Press, but what is meant in fact is a number of individual newspapers, each of them intend on increasing its circulation at the expense of the others .In the campaign the odds are all in the a paper that gives its readers what its readers want, as against a rival who gives them what it thinks they ought to have.
Despite the journalistic rules of impartiality, Kenyan readers have a special liking for editorialized presentation of news the way The Leader kept doing throughout the campaign period. Many of its front page stories presented to the people of Kenya as hard news stories were in actual fact commentaries. For example the story published on October 14-20 issue with a heading saying “Kibaki’s Patience Now Makes Raila Reckless” went ahead and pretended to give Kenyan news which in fact was opinion: “There is no doubt that Raila Odinga is the leader against the adoption of the Wako Draft, mainly because the proposed document does not contain a powerful executive Prime Minister, a position which is believed to have been custom-created for him by the Bomas conclave through his deft scheming.” Excellent editorial sadly presented to the people as hard news story.
In his book Press Bias and Politics Jim A. Kuypers discusses how media frame controversial issues. Analysing the book, Amazon.com says it charts the effects the printed press – and by extension, broadcast media – have upon messages of political and social leaders when they discuss controversial issues.

After examining 700 American press reports Kuypers concludes that media bias hurts the democratic process in general by ignoring non-mainstream left positions and vilifying many moderates and vast majority of right leaning positions. If similar studies were conducted in Kenya some form of bias in the Kenyan media will also be discovered. On October 17, 2005, for example, The Standard had a front page splash story with a heading saying “Kibaki Plans New Districts for Nakuru as Race Hots Up”.

That headline had a strap-line on top saying “Orange Sweeps Through Coast, Western and Predicts Victory while…” The ‘tone” of the entire story gave the impression that President Kibaki was planning to create new districts in Nakuru in order to win votes to support the proposed constitution in a referendum which was about to take place. The story below the headline said “ President Kibaki’s announcement is likely to be seen by the orange (No) platform as yet another campaign freebie planned by the government ahead of the November 21st referendum on the proposed new constitution.” On the back page of the Daily Nation of the same date the same story appeared with a very different tone. Its headline said “State To Consider District Plea.” Its kicker said “Kibaki agrees with MPs’ Call That Nakuru deserves Two New Units.” The story said: President Kibaki yesterday said the Government would consider proposals to create two new districts in Nakuru.”

The slant in the Daily Nation story was that the President was reacting to the demands of the people. It was a pro-Kibaki “tone”. The “tone” of The Standard was that the President was bribing people to support the new Constitution. It was an anti-Kibaki slant.

May be the most sophisticated coverage of the referendum came in the picture on October 22 when Public Opinion Journalism dominated all the front pages of both national and alternative media. Conducted by the respected Steadman Group the report made journalist write hybrid stories mixing the game of strategy and the substance of the referendum. From the report came out stories that indicated that Mwai Kibaki was still the most popular politician in the country and his popularity was steadily going up. Raila, the leader of the Orange team was fourth in line after Uhuru Kenyatta and Kalonzo Musioka.

The results also indicated that the current constitution was most unpopular with only 9 per cent of the voters backing it yet only ten per cent of Kenyans had attended civic education which would have made them realize backing the Orange camp was backing the hated constitution. The media had a lesson to learn from the polls because it revealed to them that 13 per cent of the people thought they had been very unfair in reporting the referendum and 30 per cent more thought they were “somewhat unfair”.

Public Opinion Journalism was introduced in Kenya by the Daily Nation on March 24 1999 when I predicted in May of that year in Expression Today’s Media Review that public opinion journalism “will become very popular in every aspect of the media. They will soon use opinion polls as a source of news. Soon it will dominate political reporting, with very major news organizations conducting their own polls, with results – true or false – reaching the people through hard news headlines.” What worried me at that time and still worries me now is the likely eventuality of journalists and pollsters joining hands in establishing their own agenda by conducting hypothetical polls simply by asking what journalism scholars call “what if” questions. As a mater of fact, “what if” journalism is an aspect of the profession which makes many defenders of the truth very wary of journalism, based on opinion palls.

Needless to say, I argued in 1999, polls result very much depend on the questions asked and the manner in which those questions are framed. Serious opinion journalism will be determined only by understanding the wording of the questions posed before readers , listeners and viewers can take seriously public conclusions arrived at after opinion polls . My misgivings about public opinion polls as a source of news notwithstanding, Kenyans will soon learn to accept the fact that the state of mind of a large population will inevitably influence major events in this country. What needs to be accepted at this early stage of connecting polls with authentic source of news, I said then, is the fact that the public state of mind could be artificially created by the mass media.

Used properly, I still maintain, public opinion journalism can enhance freedom of expression. Unfortunately that freedom of expression was threatened at the peak of the campaign when the Minister for Internal Security, John Michuki threatened to shut down Family TV for hosting Prof. Anyang Nyongo who backed the Orange team. According to The Standard of October 24 the Minstre warned the station by saying: “Let them look at the frequencies again and know that they belong to the Government. It will take them away if they continue to abuse the privilege.” Pathetic!