Home / Lamu / Nkaissery gag order on distributing Lamu Al-Shabaab video lawful

Nkaissery gag order on distributing Lamu Al-Shabaab video lawful

Media Gag - Clear

Interior Cabinet Secretary Joseph Nkaissery’s gag order on sharing a video online that showed the last moments of the Al Shabaab before they attacked the Kenya Defence Forces (KDF) Baure camp in Lamu County is lawful and constitutional.

The video which was published by ITV shows the moments before the Al Shabaab fighters were preparing to battle KDF forces and half way through the fight, it goes off, indicating their death.

Mugambi Laibuta, an Advocate of the High Court of Kenya argues that the order is lawful as rights guaranteed in the constitution are unlimited. In the gag order, sent to editors, the intention seems to prevent them from airing it in their stations. The idea being that it will reach a larger number, beyond those who may not be able to see it or seen it online. It however also cautions online users to desist from distributing it.

The concern by the Interior Minister is that the video amounts to propaganda to war and incitement to violence. Indeed the Constitution in Article 33 asserts that the freedom of speech does not extend to incitement to violence, hate speech and propaganda to war.

Kenyans went online to share their thoughts on the issue.

 

 

Some questions were also directed as to who really should be investigated or stopped in the first place.  


It cannot be expected that a civilian first got the video and sold it to ITV. It is likely to a KDF officer hence the Cabinet Secretary should expend energies towards the forces so as to really show that he does not want Kenyans to disregard the Constitution.

On the material of the video and whether it actually amounts to incitement to violence or propaganda to war, Laibuta asserted that

“I think the Minister fears it might glorify those people as Al Shabaab matyrs.”

The Constitution in Article 24 provides for the limitation of rights and says that the limitation shall only be by law and to the extent that the limitation is justifiable and reasonable. In addition, Article 25 lists the fundamental rights and freedoms that may not be limited. The list does not include freedom of speech.

Gagging mainstream media from airing the video is easy and will happen. The best they will do and some have is to do a story on it without showing the video. However, preventing people from sharing it online is impossible. In fact, the move has increased interest in people and more and more are sharing it. Looking at comments from across social media platforms, the video is making Kenyans proud, something Nkaissery is missing or has not aptly captured the emotions Kenyans are having.

Posting on his Facebook page after the botched attack at the KDF camp in Baure, Lamu County, Security Expert Mwenda Mbijiwe asserted

The pundits and naysayers should now notice we are suddenly becoming a rapid response nation! Al-shabaab will soon be…

Posted by Mbijiwe Mwenda on Sunday, 14 June 2015

As to whether the gag order was necessary for national security reasons, Mwenda said

No of course! Even ISIS brutal videos are on YouTube.

 

The legality of whether the order is accurate may not be argued. However, as to whether it was a necessary move remains the question since government cannot pull it down, it will continue to go viral and its contents unlikely to come close to propaganda to war or incite violence.

About shitemi khamadi

Shitemi is the Kenya Monitor Managing Editor. He trains journalists on basics of journalism, storytelling, conflict sensitive journalism and devolution.

One comment

  1. Let me critique this article….for one the writers prose is ambivalent and contradictory, two in quoting a legal source one must also state the reasons and basis why the so called authority has arrived at such a view. As a lawyer having a background in constitutional law i can tell you this for a certainty that Kenya has one of the most robust Constitution with a vibrant Bill of Rights .Under Chapter 4 of the Constitution you will note the following provisions Sec 19(3)B. (a) belong to each individual and are not granted by the State;…thats not an empty statement its a guideline for interpreting the attendant fundamental Rights and Freedoms that follows…its the spirit under which the Bill of Rights were granted, Sec 19(3)c. countenances the limitations i.e ” are subject only to the limitations contemplated in this Constitution”

    Section 20: gives the Courts the Guardian role in interpreting the constitution with the provision that when doing so they should always adopt a position that most favours the enforcement of a right or fundamental freedom .

    Then consider this clause on limitation ” Sec 24. (1) A right or fundamental freedom in the Bill of Rights
    shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom” Question does Nkaissery’s order fulfill the following provisions…is it reasonable and justifiable in an open {techno savvy } and democratic society such as Kenya where within seconds of airing of the news By ITV…Kenyans were already accessing the footage online as a matter of public information? Britain being a member of the common wealth and our laws having been developed by the Common Law model; would you consider the fact that this having been aired there they could serve as an example of an “open democratic society” for which we are bound to emulate ?

    When it comes to freedom of expression : 33. (1) Every person has the right to freedom of expression,
    which includes—(a) freedom to seek, receive or impart information or ideas;
    (b) freedom of artistic creativity; and
    (c) academic freedom and freedom of scientific research.
    (2) The right to freedom of expression does not extend to—
    (a) propaganda for war;
    (b) incitement to violence;
    (c) hate speech; or
    (d) advocacy of hatred that—
    (i) constitutes ethnic incitement, vilification of others or
    incitement to cause harm; or
    (ii) is based on any ground of discrimination specified or
    contemplated in Article 27 (4).(3) In the exercise of the right to freedom of expression, every
    person shall respect the rights and reputation of others.

    Now does the release of a video footage that contains the actual events of a vanquished enemy fall under any of the heads of Section 33 sub section 2 (a) to (d) …. i would like to see how one would spurn that video to fit under any of those provisos and if indeed one does via a subsidiary statute, its common knowledge the Constitution reigns supreme.

    Freedom of Media : 34. (1) Freedom and independence of electronic, print and all other
    types of media is guaranteed, but does not extend to any expression
    specified in Article 33 (2).
    (2) The State shall not—
    (a) exercise control over or interfere with any person engaged in
    broadcasting, the production or circulation of any publication
    or the dissemination of information by any medium; or Freedom of expression. Freedom of the
    media.
    (b) penalise any person for any opinion or view or the content
    of any broadcast, publication or dissemination

    Kenyans ahave a fundamental right to information especially information that touches on their own safety and well being not even the CS internal security by a stroke of pen attempt at limiting such freedoms unless in the clearest of circumstances and as justifiable by law finally …

    35. (1) Every citizen has the right of access to—
    (a) information held by the State; and
    (b) information held by another person and required for
    the exercise or protection of any right or fundamental
    freedom.
    (2) Every person has the right to the correction or deletion of
    untrue or misleading information that affects the person.
    (3) The State shall publish and publicise any important information affecting the nation.
    Access to information

    Its clear from the foregoing provisions its in the interest of the republic for the Government to identify and make to know to the public its enemies in so far as national security is not threatened. It is also a sham for a state organ that had sole custody of such ” material ” to release it to a foreign entity and thereafter turn around and gag local media from reporting on the issue or circulating such material that has already landed in the international domain. Instead the CS should quietly investigate how that material left his custody in the first place and let Kenyans enjoy their Fundamental Rights and Freedoms. A good lawyer knows that its not so easy as some assume to abrogate the enjoyment of fundamental Rights and Freedoms. I wish this matter could be put to test before the supreme Court . Then Kenyans could clearly see the constitutionality or otherwise of the CS internal security’s order

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