Towards a rights-based approach to media protection in the digital age for meaningful political participation of the electorate in Kenya

Abstract

Traditional and online media share the contemporary media landscape in Kenya. Both media types contended with diverse challenges, including the political economy of the media, some restrictive media laws and law enforcement actions, and peace and conflict that significantly impact the media’s performance of its institutional functions. The media is a crucial actor in Habermas’s public sphere theory. Habermas envisioned a space open and accessible to all, separated from the state, where free and equal citizens engage in critical and rational discourse towards informed public opinion, agreement and decision-making. This public sphere is arguably chimerical but ideal. The media is the medium to objectively set and frame the agenda, collect, disseminate and amplify information, and guide the public in decision-making. This is important during critical processes such as elections where access to accurate and credible information helps nurture an informed electorate that can meaningfully exercise their right to political participation. The extent of media freedom is also a determinant of the freeness and fairness of an election. This thesis explores how Kenya can better protect media freedom in the digital age to enhance meaningful political participation of the electorate. In doing so, it recognises that regulation significantly affects media freedom and its ability to play its normative functions. Both international and national laws have adapted to protect media in the digital age, with more rights-based approaches at the international level. The research also finds that media regulation has often adopted a tripartite approach of self, state or co-regulation that revolves around the regulatory actors. However, it pivots and explores a contextualised human rights-based approach to protecting media freedom in the digital age focused on substance, actors and unique situational opportunities and challenges. International law and the Constitution of Kenya provide the foundational normative guide for a contextualised human rights-based approach. In describing the proposed human rights-based approach, the research borrows from the advantages of media self, state and co-regulation and builds on this traditional regulatory framework. The approach appreciates the role of diverse stakeholders in the media ecosystem of the digital age and calls for multi-stakeholder participation, including the state, independent media regulators, internet intermediaries, the technical community, the private sector, the international community, and civil society. This multi-stakeholder representation is necessary for improved norm development, enforcement and accountability. Tiered multi-stakeholder intervention at the international and national levels arguably establishes legal safeguards that ameliorate the political economy challenge that affects media freedom in Kenya pronouncedly. The human rights-based approach seeks to foster an enabling media framework that is contextually relevant to the media and electoral milieu in Kenya. On the one hand, Kenya has robust traditional and online media, a politically engaged citizenry, a relatively independent judiciary with activist judges and a progressive Constitution. However, it is also vulnerable to electoral violence fuelled by incendiary public discourse, political and economic interference in media, media overregulation and restrictive media laws and practices. The three-pronged limitation of rights approach under international law requiring restrictions to respect the principles of legality, legitimate aim, necessity and proportionality is relevant. It is at the juncture of legality, necessity and proportionality that some media laws in Kenya have failed to pass muster. Concerningly is the presence of vague and broad provisions and disproportionate sanctions, including the criminalisation of expression contrary to international law. Political and powerful actors have misused these laws to limit media rights, especially during elections. The proposed framework further calls for a change in the largely self-regulatory parlance of social media, given its popularity as a source of political and electoral news and a platform for activism and public debate in Kenya, second only to television. International law requires businesses such as social media platforms to adopt rights-respecting policies and practices and, to some extent, promote human rights. However, the study argues for a narrow extension of rights-protecting and fulfilling obligations to businesses, including very large social media platforms such as Facebook, Twitter (now X), YouTube and TikTok because their products, policies and actions significantly impact media rights and meaningful participation online. The study calls for a collective continental effort to enhance social media accountability as opposed to disparate national frameworks which may violate media freedom, constrain tech innovation and contradict international law. The African Commission on Human and Peoples’ Rights, through the Office of the Special Rapporteur on Freedom of Expression and Access to Information, has the requisite promotional mandate to shepherd the process of addressing the legal gap in social media accountability in Africa and guide state action. Lessons can be drawn from the regional and conditional liability approach of the European Union, the broad immunity approach of the United States of America, and conditional liability approach in select African countries. By adopting the proposed human rights-based approach to media regulation in the digital age, the thesis argues that Kenya will nurture a more vibrant public sphere mediated by offline and online media that can effectively counter political and economic interference and other challenges to promote meaningful political participation of the electorate and free and fair elections.