Assessing the impact of terrorism and counter-terrorism laws on freedom of the media in Kenya

Benjamin Muindi

Introduction

Terrorism is a contested term. Indeed, there is a lack of consensus about what constitutes or does not constitute terrorism (Golder and Williams 2004). Scholars contend that terrorism is the unlawful use of violence and intimidation especially against civilians in pursuit of political aims. They also observe that terrorism is a global and serious threat to the national security of countries across the world. Its psychological impact is felt across distances to places away from the scene of terror (Fremont et al. 2005; Nacos and Bloch-Elkon 2011).

The goal of terrorism is twofold: one, to cause visible disaster, and two, psychological fear and intimidation. Because of the nature of terrorism as an intentional, politically motivated act that is designed to intimidate and or injure everyday people in order to influence macro-level change, reporting of this conflict poses unique challenges to journalists. Terrorism causes physical and psychological harm to those directly and indirectly involved. Therefore, covering terror-related activities is not an ordinary news event for journalists. This coverage becomes even more significant if the journalists involved are encountering the experience for the first time with limited capacity to operate competently within such a field.

The weapons of terror range in sophistication and information and media coverage are one of the vital weapons of terrorists. Today, insurgent groups like the Islamic State of Syria and Iraq (ISIS) and al Shabaab are using the Internet and social media tools to directly and indirectly recruit supporters, plan their activities as well as publicize terrorism events to the world. Such targeted online communication strategies make the threat of terrorism a global phenomenon that cuts across geographical, spatial and temporal boundaries.

Opinion is divided on the role of the media, especially the mainstream media, in the field of terrorism but some scholars such as Zelizer and Allan (2011) observe that media reporting of terrorist activities can intensify the impact of terrorism. The symbolic violence of media reports brings the theatre of war into people’s homes, spreading fear and panic among the population. Social media and digital tools can (and at times do) increase the potential for harm (; McNamara 2009; Nash 2005; Silver 2008; Spencer 2012).

Terrorists capitalize on media coverage as a strategic decision to intimidate targeted populations. Former British Prime Minister Margaret Thatcher described publicity as the oxygen of terrorism, and scholars have argued that terrorism and media tend to feed off each: “the terrorist-media symbiosis argument is popular among decision-makers who must respond to terrorism” (Nacos and Bloch-Elkon 2011,46). Some have argued that if the media did not cover terrorism, the impact of the violence would be minimal dealing a blow to terror (Fremont et al. 2005).

If Mrs Thatcher were correct, would terrorism cease once the media censor coverage of these events? Some scholars have disagreed with this position, arguing that the “relational modes” are too complex, but reveal “weaknesses and failings” in the manner in which journalists report terrorism. For instance, Wie- viorka (1993, 43 46, 5, as cited by Nacos and Bloch-Elkon 2011) appreciates this complexity and contends that it is “entirely improper to make a scapegoat of them (journalists), or to lay the blame for terrorism at their feet”. The argument by Wieviorka can be buttressed by the fact that terrorists are today using the Internet and its platforms to spread their messages bypassing mainstream news channels. Nacos and Bloch-Elkon (2011, 5) observe that “the Internet allows contemporary terrorists to circumvent media outside their control to post propaganda on their own websites or those of friendly organisations and individuals”.

This suggests that the practice of journalism, and journalists themselves, are highly vulnerable to the strategies and tactics of terrorism-related activities. Journalists assigned to report these events negotiate the complexities of terrorism and find ways of reporting without becoming the tool of terrorists or conduits of government propaganda. In addition to being placed in potentially life-threatening situations, where they witness and report often horrific violence first-hand, the journalists negotiate personal and professional obstacles in order to bring news to their audiences. These obstacles operate on many levels, resulting in a complex and, at times, hostile working environment that ultimately shapes how they go about their work and what they can and can’t share with audiences.

At an individual/micro level, journalists face numerous personal and professional challenges when assigned to report terrorist-related activity. These challenges include their personal safety and attendant issues, resources and necessary training to practise journalism in a conflict zone (Feinstein, Osmann and Patel, 2018). At the macro level, journalists are regulated by a set of formal laws that bind society and professional practice. Journalism practice is governed by a set of informal and unwritten rules that control how information is gathered, processed and disseminated (Maweu 2014; Shoemaker and Reese 2014; Tuchman 1978; Wasserman and Maweu 2014; Zelizer 1993). These rules can take the form of routines and rituals as well as organizational and cultural protocols that inform how things should be done. Such ‘rules’ - in their multifarious forms — determine the structural conditions under which journalism is produced. Structure, in this sense, refers to “an overt or covert system of interrelations between material or symbolic entities within which human action takes place” (Bolin 2016, in Jensen and Craig 2016, 1973). Therefore, this chapter is concerned with how these structural conditions have influenced media freedom in Kenya.

Impart of terrorism, counterterrorism laws 103 Terror-related activities in Kenya

Since independence from the British colonial masters, Kenya’s national security has been threatened by both internal and external factors. During the colonial period, the British administration labelled as terrorists the resistance movement ‘Mau Mau’ that fought for independence (Elkins 2005; Mogire and Agade 2011). Mogire and Agade (2011) note that in the recorded history of terrorism in Kenya, ‘Mau Mau’ is likely the first group to be labelled as terrorists. In post-independent Kenya, other internal groups that have been labelled as terror organizations include ‘Mas- kini Liberation Front’, ‘February Eighteenth Movement’, ‘Sabaot Land Defence Forces’ and ‘Mungiki’, and ‘The Shifta’ uprising that was aimed at annexing North Eastern Kenya region to Somalia (START 2019). Some other internal threats have been the perennial ethnic tensions and clashes among pastoral communities.

But it is transnational terrorism mainly inspired by the instability in Somalia and piracy in the Indian Ocean that has been categorized as the current biggest threat to national security (START 2019). The history of transnational terrorism in Kenya dates back to the attempts to shoot down an Israeli plane that was touching down in Nairobi in 1976; the 1980 bombing at the Norfolk Hotel; the 1998 bombing of the U.S. embassy in Nairobi and the 2002 bombing of the Kikambala Hotel in Mombasa (Mogire and Agade 2011; Lind, Mutahi and Oos- terom 2015; START 2019). These attacks were rather isolated.

However, since the Kenyan army entered Somalia in 2011 ostensibly to pacify the war-torn State, Kenya has experienced unprecedented internal attacks. Wafula (2014) records that between 2011 and 2014, there were at least 100 incidents of terror attack in the country as the al Shabaab made a political statement to Kenya to withdraw its troops from Somalia.

During this period, some of the worst attacks recorded in the country include Westgate Mall attack in 2013 that left 67 people dead (Barasa 2013) and a similar number of others during the Mpeketoni attack in 2014 (AFP 2014). At Garissa University College, nearly 150 students were killed in a dawn attack in 2015 (Mu- tambo and Hajir 2015). There was also the killing of the Kenya Defence Forces soldiers at El Adde in Somalia by the terrorist group (Daily Nation 2016) that is estimated to have claimed 200 lives. At the time of writing this chapter, the most recent attack occurred on January 15, 2019 at an upmarket hotel in the capital city’s Westlands area leaving 21 dead (AFP and Oruko 2019).

Kenya’s response to these violent incursions has been twofold: heightened military and police presence and strengthening counter-terrorism and national security laws. Mass surveillance of communications has been cited as a measure that governments take in their counter-terror strategies (Privacy International 2017). The analysis in this chapter shows that these counter-terrorism measures bore a negative impact on media freedom in Kenya. Counter-terrorism encompasses “practices, tactics, techniques, and strategies that governments, militaries, police departments and corporations adopt in response to terrorist threats and or act, both real and imputed”. Anderson (2009) notes that targeted killings and tough counter-terrorism laws are popular strategies that governments employ.

In the context of this chapter, the prevention of terrorism laws, a heightened presence of military and police officers in both private and public establishments have become common forms of counter-terrorism initiatives in Kenya. The concern for the safety of Kenyan citizens has become a priority for both government and private institutions in the country. The initiatives such Linda jXchi (Protect the country spearheaded by the Kenyan army), Usalama Watch and Nyumba Kami are now part of the Kenyan culture since 2011. Usalama Watch and Jyumha Kami are community policing initiative requesting citizens to know their neighbours, especially, in the capital city Nairobi and other urban areas (Gluck 2017; Kioko 2017).

Some studies (such as Anderson 2009) connect counter-terrorism to the United States’ responses to September 11, 2001 attacks but Al-Bulushi (2019) decentres the United States of America from the war against terrorism. She argues that African governments, for instance Kenya and Tanzania, have been waging the war since the fatal attacks on August 8, 1998 in Nairobi and Dares Salaam. For Africans, she contends that their memories and experiences of the so-called War on Terror date back not to September 2001 that is a popular reference point, but to August 1998. In Kenya, for instance, counter-terrorism started immediately after the 1998 attacks with the government carrying out raids and arrests in the coastal town of Mombasa that is predominantly inhabited by the Muslim community.

Al-Bulushi (2019) thus recommends the need to shift the discourse on counter-terrorism further from the United States of America and document the practices and strategies that African nations have since employed in combating terrorism. One of the practices that the Kenyan government has employed in its counter-terrorism plans is to embed local journalists with the army. Dozens of journalists specializing in the reporting of national security and political issues have occasionally been deployed to cover the conflict between the KDF soldiers (who are a part of the troops from African Union Mission in Somalia, Amisom) and the insurgents. These journalists have published several reports from the battlefield since 2011.

In war, information is a vital weapon and in this chapter, I assess the impact of the structural conditions that these journalists negotiate while reporting. In particular, the structural conditions under review in this chapter are the laws, regulations and protocols touching on the access, production and dissemination of information in the reportage of terrorism since 2011 in Kenya.

The dialectic of structure and agency

This chapter is anchored on theory of structure and agency by Anthony Giddens (Giddens 1984,). Structure and agency are inextricably connected (Bencherki 2016; Bolin 2016; Bourdieu 1994; Giddens 1984; Sewell 1992). In structuration theory, agency is articulated as the ability of an individual to act independently and to make free choice while structural conditions either determine or limit this agency.

The agency of a journalist reporting terrorism can therefore be determined or limited by structures such as laws and rules. These rules can also take the form of routines and rituals as well as organizational and cultural protocols that inform how things should be done. Such rules in their multifarious forms - constitute the structural conditions under discussion in this chapter. However, structure is more than just these rules, protocols or regulations that either limit or determine one’s agency.

To report effectively in volatile conflict zones, journalists need access to human and nonhuman resources at their disposal, such as the availability of special gear, access to reliable locals (fixers) and knowledge of what to do and how to act in such an environment. If their newsrooms cannot provide these resources, journalistic independence becomes contested. In Kenya, the lack of these resources leaves journalists at the hands of the government agencies and specifically the KDF. Since KDF are parties to the warfare, there are underlying implications on the agency of the embedded journalists as they report on the same conflict.

Media scholars such as Olsen (2018), Johnson and Fahmy (2009) bring to our attention the fact that there is a potential for the deletion of journalistic agency and reconfiguration of professional identity when journalists and their work become embedded in the security apparatus of a country. Drawing from experiences of journalists covering counter-terrorism such as the U.S. war in Iraq and Afghanistan, these scholars have found that the agency and professional identity of the journalists is affected by the structural conditions of being attached to military. There has been little or no investigation touching on the impact of these counter-terrorism initiatives on the agency and professional identity of the Kenyan journalists, where the KDF have embedded several journalists since 2011 in Somalia.

As Radsch (2014) argues, legislating media laws by State is the main determinant of press freedom as the laws dictate the status of freedom of expression and freedom of information and whether media are censored, banned or blocked. Media laws determine whether defamation is criminalized and whether it or other laws are used against media and journalists in order to illegitimately restrict freedom of expression. Media laws also determine the freedom and status of investigative journalism and the protection of journalists’ sources. Radsch (2014) points out that other markers of a free press include pluralism of ideas, gender and safety of the journalists.

In a survey of Kenyan journalists, Obonyo and Owilla (2017) demonstrate that media laws and regulation are the greatest influence (85%) on the work of the journalists in Kenya followed closely by editorial policy (83%), information access, journalism ethics and availability of newsgathering resources.

The ‘Hierarchy of Influences’ model by Shoemaker and Reese (1996, 2014) ably conceptualizes the dialectic of structure and agency in journalism production. These are factors inside and outside the media organizations that affect the operations of journalists as they report news. Forces inside and outside the media influence journalistic production as an exegesis that this chapter seeks to demonstrate through the lived experiences of Kenyan journalists involved in the reporting of terrorism.

Impact of counter-terrorism laws on media freedom in Kenya

This analysis of collected data shows that between 2011 and 2019, there have been efforts to tighten the security laws aimed at combating terrorism in Kenya. Through an omnibus of amendments, the country enacted and or amended at least 22 laws related to the national security. The laws include Penal Code Act, Criminal Procedure Act, Evidence Act, Refugees Act, National Intelligence Service Act, Prevention of Terrorism Act, Public Order Act, Extradition (Contagious and Foreign Countries) Act, Criminal Procedure Code, Registration of Persons Act, Prisons Act, Firearms Act and Radiation Protection Act. Others are Rent Restriction Act, Kenya Airports Authority Act, Traffic Act, Investment Promotion Act, Labour Institutions Act, National Transport Safety Authority Act, Kenya Citizenship and Immigration Act, National Police Service Act and the Civil Aviation Act.

This enactment of restrictive laws impacted on human rights, including the rights of journalists and access to information. Some of the provisions of these laws are punitive in nature carrying with them heavy fines and or long terms of imprisonment for persons who break them and thereby serving as a deterrent to media houses and their journalists while pursuing stories of public interest related to terrorism.

During the period under study, it was observed that the Security Laws of 2014 in particular had a major impact on media freedom among journalists in Kenya. The laws were introduced in Parliament in December 2014 as a response to terrorist attacks that had rocked the country in the preceding days. Two separate terror attacks in Northern Kenya: one in a bus travelling to Nairobi and another at a mining quarry left 64 Kenyans dead. The attackers in these two incidents specifically targeted Christians and spared Muslims (The East African 2014; The Guardian 2014). The terrorists targeted those who could not recite the Quran in the bus (The Guardian 2014).

The Prevention of Terrorism Act dictated what and how journalists should publish when covering terrorism. The particular provisions as contained in Article 30(a), 30(f) and 35(3) c of the law were inserted during the 2014 parliamentary proceedings and were contested in court. These sections of the Prevention of Terrorism Act prohibited journalists from publishing or broadcasting photographs of victims of a terrorist attack without the consent of the National Police Service and that of the victim. The penalty for this offence is a term of imprisonment not more than three years or a fine of five million shillings, or both. The government used the Prevention of Terrorism Act to warn the media against posting photos or interviewing suspected terrorists during the terrorist attack at the Garissa University College where 147 students were killed in the April of 2015.

The National Intelligence Service Act on the other hand contains certain clauses that limit freedom of expression as set out under Article 33 of the Constitution. Section 33(1) of the Act provides that the freedom of the media is limited in the interest of national security, public safety, public order, public morality or public health. The law further prevents the disclosure of information received in confidence, and seeks to regulate the technical administration or the technical operation of telecommunication, wireless broadcasting, communication, Internet, satellite communication or television. The programming code for free-to-air radio and television (Kenya Information and Communications Act Cap 411A and the Broadcasting regulations 2009, Section 10) stipulate the conduct of journalists covering terrorism.

Policing journalism in Kenya through terrorism and counter-terrorism laws?

During the period under study, Kenyan authorities crafted laws and regulations that effectively led to the policing of journalism by the internal security organs and also the Kenya Defence Forces. Publication of information - regarded as offending - that could be deemed to be in support of terrorism by the authorities forced Kenyan journalists to become less critical of the war against terrorism for fear of reprisals. In particular, some of the clauses that have had severe consequences on the capabilities of journalists between 2011 and 2018 are contained in Prevention of Terrorism Act. Articles inserted during the 2014 parliamentary proceedings that have been a subject of contention in court were the most contentious. In reflection, one journalist who was embedded with the army in Somalia noted that the laws and regulations ended up valorizing the work of the army and left the journalists as mere conduits of the information military officers shared.

The Prevention of Terrorism Act, the journalists observe, was invoked on several occasions and deters them from publishing unapproved content. That law states that a person who publishes or utters a statement that is likely to be understood as directly or indirectly encouraging or inducing another person to commit or prepare to commit an act of terrorism commits an offence and is liable on conviction to imprisonment for a term not exceeding 14 years. A statement is likely to be understood as directly or indirectly encouraging or inducing another person to commit or prepare to commit an act of terrorism if the circumstances and manner of the publications are such that it can reasonably be inferred that it was so intended; or the intention is apparent from the contents of the statement. The law observed that it is irrelevant whether any person is in fact encouraged or induced to commit or prepare to commit an act of terrorism.

In one particular terrorist attack at the Garissa University College where 147 students were killed in April of 2015, the security organs highly quoted this section warning both the public and the media against posting photos and or interviewing suspected terrorists. The clauses were later found to be in violation of the Constitution by the courts. As one of journalists interviewed opined:

Have the laws changed anything? They have definitely made journalism difficult, because you cannot report truthfully or accurately when you don’t have information or when you are worried that the information that you have may land you in detention or in grilling.. .you don’t want to be the journalist who is telling the government’s story.. .‘Terrorists’ however bigoted also have their story, and it is for the law to decide how to deal with that. The journalists’ job is to tell the story truthfully. Even Osama was covered!

(Interviewee 4, 2019)

Approval of journalistic content by security organs

To demonstrate how ambitious the Kenyan authorities have been in their counterterrorism drive, the police and the army have at different times demanded an oversight role in the content produced by journalists when covering terrorism. This was both anchored in the Security Laws 2014, and also expanded as unsaid rules and regulations for the journalists who were embedded with the Kenyan army in Somalia. The particular section that was to be quashed by the courts stated that any person who, without authorization from the National Police Service, broadcasts any information that undermines investigations or security operations relating to terrorism commits an offence and is liable on conviction to a term of imprisonment for a term not exceeding three years or to a fine not exceeding five million shillings, or both. It further added that a person who publishes or broadcasts photographs of victims of a terrorist attack without the consent of the National Police Service and of the victim commits an offence and is liable on conviction to a term of imprisonment for a period not exceed three years or to a fine of five million shillings, or both.

A journalist embedded with the army in Somalia said that they were required to have their work approved by a senior officer in the army before it was dispatched for publication in Nairobi.

There was a requirement for the journalists embedded to show the commander, or a designated officer, the material they were going to send to the newsroom for broadcast or publication. There were very minimal changes to the stories I presented but the photographer in the team had to delete photographs of soldiers that the military considered sensitive because of the nature of their work. The coverage was the subject of criticism on the basis that the military was depicted in far better light than it deserved and that its excesses in Somalia went unreported by the Kenyan media.

(Interviewee 2, 2019)

Normative challenges in covering terrorism

The media has been regarded as a public sphere. According to Habermas (1989), a public sphere is incredibly important to a democratic society and its adequacy depends a lot on both the quality of the discussions and quantity of participation. Habermas argued that a critical requirement for an effective society was the merit of the critical argument and not the social class or identity of the proponents. Habermas (1989) traces the maturation of a public sphere in which “critical public discussion of matters of general interest was institutionally guaranteed” (Habermas 1989, 11). It was established during interviews with journalists that there was a possible abuse of the public sphere by authorities. One journalist who was embedded with the Kenyan army observed that:

I also could have crossed the line and served the interests of the military instead of the public in my reporting. The coverage obviously created a problem as it failed to give the readers a holistic picture of what the KDF was doing in Somalia and what would follow after the capture of Kismayu, which the Kenyan media reported as being the ultimate objective of Operation Linda JVchi. By valorising the army and its activities, it also portrayed the war as the only possible solution to the conflict while there might have been other approaches.

(Interviewee 4, 2019)

Access to information

The rights of journalists accessing and publishing information of public interest have been clawed back in the pretext of endangering national security. For instance, in 2015, journalists from the mainstream newspapers, Daily Nation and Standard, were arrested after publishing stories regarding an inquiry by parliament on how the Interior ministry spent funds buying security equipment. Although these parliamentary hearings were open to the public, the authorities pressed the journalists to reveal the sources of their information saying that it jeopardized national security. The journalists were denied access to a lawyer during the interrogations by the Directorate of Criminal Investigations but later released with no charges. In other instances, the police have cautioned journalists regarding reporting and interviewing news subjects during terror attacks. In 2015, the then Interior Cabinet Secretary Joseph Nkaissery threatened to arrest journalists who reported the involvement of Kenyan forces in the combat against al Shabaab militants in Northern Kenya. According to a joint report by Human Rights Watch (2015) and Article 19 (2017) Kenyan journalists covering sensitive issues such as national security, terrorism or corruption are targets of State surveillance.

A journalist involved in the coverage of security and political affairs in Parliament noted that the standing orders barred members of the press from covering issues of public interest that did not have a direct threat to national security:

When covering parliamentary committees, there is a misused clause of the Standing Orders where a committee simply says something is a matter of national security, and the media (journalists) are locked out. When the Executive (the security organs) and the Legislature (and its committees) lock out the public and the media, they simply create a convenient echo chamber. They can never see things through the eyes of the public....

(Interviewee 1, 2019)

The findings presented in this chapter raise critical questions on the normative role of the media when covering terrorism and terror-related activities. For instance, should the media become collaborators with the government or should they adopt a critical approach that enables them to take a fair and objective assessment of the situations (Nordenstreng 1997; Siebert et al. 1956)?

Spencer (2012) argues that censoring the media from reporting terrorism presents both normative and practical challenges - introducing laws and policies meant to censor the media from reporting terrorism is a counter-terrorism strategy usually met with resistance especially in democratic states. He agrees with Nacos and Bloch-Elkon (2011) that the practicality of completely banning coverage of terror in the media in today’s world of technological advancement is a nightmare for authorities.

In regard to the relationship between the media and terrorism, Spencer (2010) views it as a communication strategy - a symbiotic relationship between the media and terrorism akin to “accomplices” or “best friends” ... “terrorists provide the media with emotional, exciting and bloody news which helps them sell their products” (Spencer 2010, 4). It is these complexities of the rather seemingly uneasy relationship between the media and terrorism, as well as the censorship measures developed by authorities that this chapter sought to analyse.

Conclusion

The chapter set out to assess the impact of structural conditions imposed by the government in support of its counter-terrorism initiative on the agency of journalists while covering terrorism. The aim was to establish the ways in which terrorism and counter-terrorism laws determined and/or limited freedom of the media in Kenya. It has been established that liberties guaranteed by the Constitution of Kenya have either been eroded or overlooked in Kenya’s war against terrorism. The findings show that restrictive laws enacted between 2011 and 2019 impacted on the rights of journalists and access to information. The provisions of these laws are punitive in nature carrying with them heavy fines and or long terms of imprisonment for persons who break them and thereby serving as deterrent to media houses and their journalists while pursuing stories of public interest related to terrorism. Critical normative questions regarding the role of the media in the so-called war against terrorism need therefore to be interrogated if journalists and the media are to play their supposed watchdog during such times.

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