Commentary - Freedom and licence in the media (by Philip Ochieng)

Posted Saturday, January 10 2009 at 15:49

If he is socially conscious, not even the most militant defender of media freedom can deny that sections of the media do not know the difference between freedom and licence.

We saw – or heard—good examples just before and just after the General Election in December.

Certain tribal-language electronic media broadcast deliberate and malicious lies against certain tribes and their leaders. In this way, they helped to raise the mass temper that culminated in the inter-ethnic hecatomb in which a thousand good Kenyans lie buried.

It may not have been deliberate editorial policy. But, even in the so-called upmarket media, certain writers—many of whom we can cite by name because they were foolhardy enough to use their “by-lines” – persistently promoted incredibly narrow ethnic lines.

Many members of the self-styled “alternative Press” – print as well as electronic — often carry material which cannot pass through any gatekeeper who knows what it means to be free in a social setting. The phrase “in a social setting” is the crux of the matter.

There can be no orderly society – nay, there can be no society at all — unless members agree or are forced to do without certain freedoms. That is where lies the difference between freedom and licence.

Licence or licentiousness is the situation in which individuals enjoy absolute permission to do whatever they like.

Freedom, on the other hand, is the situation in which the latitude of speech and action is considerably narrowed – either by law or by drumming up a personal sense of responsibility – so that your speech or action neither dampens the spirits of other individuals nor denies them their own right to speak and act.

That, in the last analysis, is the only reason that human societies have legal systems. The law is not an instrument of freedom.

It is a method by which we deny ourselves the licence of conduct so that, as individuals, we can live together in relative order and relative peace.

Without such socio-legal inroads into our latitudes of speech and action, society is unthinkable. Yet during the recent face-off between the media and the government, many media and human rights people uttered words which raised serious doubts as to whether they understand this difference.

Anybody who stands in the agora to shout that all Kikuyus in Kericho or all Kalenjins in Mathioya should be killed is behaving licentiously.

It is, of course, a kind of freedom. But, by taking the law into his hands, he is ignoring the objective higher interests of his own local collective.

MANY MEMBERS OF THAT COLLECTIVE MAY BE AS BIGOTED as he. His hate-speech may goad them and others to rush to arms. It may end up in precisely the kind of murderousness which Judge Philip Waki recently investigated. Nobody would benefit, not even the numskull who ignited this fire.

Of course, no government worth its salt can be expected to stand aside and merely watch as one section of its people is burning itself in this way.

A government’s chief task is to protect society from itself – namely, from those members of it who are bent on destroying this relative freedom which only the law can guarantee.

That, I think, was what inspired the legal initiative on communication which has provoked so many of us into such cant and dialectic against Information minister Samuel Poghisio, permanent secretary Bitange Ndemo, Members of Parliament and President Kibaki.

For I cannot exaggerate the need for good Kenyans to be protected from bad Kenyans – the need to be protected against all criminals, including all tribal, racial, gender and sectarian jingoes — by means of a clear legal instrument.

And the media cannot expect to remain outside the purview of such an instrument because the media, being composed of human beings, have a fair share of evil minds and criminals.

That is why, as a purpose, at least, the minister’s initiative cannot be faulted. What I faulted was only its packaging. For it seemed to give the government the licence to act as the judge, the jury and the executioner against media houses.

By sending armed policemen into a media house and disabling its machines, causing it huge losses in sales and advertising – you will have already judged it guilty and punished it.

You will have thus thrown the whole judiciary to the dogs and made a laughing stock of your own vaunted “rule of law”. That is itself licentious.

Media owners must agree that it is necessary to punish individual criminals in the media. The owners and the government must then agree on a mutually beneficial method of doing so.