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Formación de Capacidades en Acceso: El caso ecuatoriano

Published: 2008

Este video muestra el proceso de fortalecimiento de capacidades que inició el Centro Ecuatoriano de Derecho Ambiental en el 2005, como resultado de la evaluación realizada por la Iniciativa de Acceso, donde se detectó que uno de los grandes vacíos existentes era justamente la falta capacidades en la ciudadanía y en los funcionarios gubernamentales respecto de los derechos de acceso.

Nuestro proceso de formación de capacidades aplica metodologías participativas apoyadas de materiales desarrollados con enfoque pedagógico, así como también con actividades de difusión y discusión de los temas de acceso en la agenda publica.

More Transparent Than Glass

By Lalanath de Silva (Posted: February 17, 2009)

This is a video story about how the Environmental Foundation Ltd. (EFL), a public interest environmental law organization in Sri Lanka activated the Supreme Court of Sri Lanka and saved the only open ocean waterfront in the capital city of Colombo. The court also affirmed the right of the public to have access to information. If you cannot view the video from the video frame below you can do so by clicking here

The Galle Face Green had been dedicated to the public by an order of the colonial British Government in 1856. Since that time the Green had been used by the city’s public as a recreational area. The Urban Development Authority (UDA) had decided to hand over the public space to a private company to develop it as a built up amusement park. Although admission to the park would have been free, the amusements themselves would have to be paid for by the public.

The UDA had run an advertisement in a widely circulating national newspaper that the project was “More Transparent than Glass”. But when EFL asked the UDA for a copy of the agreement it had signed with the private company, it refused to give it a copy. EFL filed a human rights violation case in the Supreme Court. EFL argued that the freedom of speech and expression guaranteed in the Sri Lankan constitution included the right to seek and receive information from the Government. Ms. Ruana Rajapakse, legal counsel who represented EFL shares her thoughts on this video.

The private company filed a copy of the agreement in court. The court decision affirmed the right of the public to have access to information. The court inferred that right from the freedom of speech and expression guaranteed in the Constitution of Sri Lanka. It ruled that the freedom of expression included the right to seek and receive information from the Government in certain situations. The court also annulled the agreement saying that the UDA did not have the power to hand over the Green which had been dedicated to the public. Subsequently, the new Minister for Urban Development and Sacred Area development, the Hon. Dinesh Gunawardene (also featured on this video) decided to establish a national steering committee to examine transparency, accountability and inclusiveness in the urban sector and to introduce public participation into local government budgeting and decision-making processes.

Canadians Debating to Lower Environmental Safeguards

By David Heller (Posted: February 13, 2009) 

Canada, like many of its neighbors, is struggling to balance the competing needs of economic improvement and environmental protection during this global depression. Included in Canada’s 2009 federal budget, recently presented to Parliament, are suspicious provisions that encourage “regulatory efficiency” in infrastructure projects designed to jump start their lagging economy. Leaked documents suggest that this expediency might come at the cost of weakening the Canadian Environmental Assessment Act (CEAA), a price that many Canadian environmentalists are not willing to pay.

Under the current CEAA, federal departments, agencies, and crown corporations must conduct environmental impact assessments (EIA) for proposed projects where the federal government is the proponent, or where the project involves federal funding, permit, or license. These EIAs, though frequently ridiculed for causing delays in the construction process, are often the only means people have to participate in assessing government projects and intervening when such projects are perceived to have unwarranted environmental costs.

The budget that Canadian Prime Minister Stephen Harper introduced to Parliament on January 27th devoted more than $2 billion towards transforming the Canadian economy into a sustainable and environmentally friendly one, but also included provisions that might undermine this process by making certain projects exempt from EIA oversight.

Authors of the 2009 budget claim that full compliance with CEAA impedes Canada’s economic recovery. “Currently,” the budget states, “infrastructure approval processes are subject to duplication and inefficiencies in administration, leading to unnecessary project delays.”

In order to address this perceived flaw, the budget says that “…regulatory efficiencies will be pursued for projects subject to the Canadian Environmental Assessment Act.” [Emphasis added].

Leaked documents received by the left New Democrats Party indicate that this interest could manifest itself in several forms. The first possible route being examined is eliminating the need for EIAs on certain infrastructure projects costing less than $10 million. Another option is reducing oversight on bigger projects, which currently require separate EIA assessment at the provincial and federal levels.

In line with this first option, the Toronto Star reports that Federal Infrastructure Minister John Baird is targeting certain less costly and “environmentally friendly” projects for EIA exemption. As Baird says, “We’ve got a lot of rules in place to stop bad things from happening, but we don’t have anything to help good things happen, particularly for things like public transit and waste-water treatment that improves water quality.”

The other alternative being tinkered with by Conservatives is designed to combat the time cost associated with fulfilling the EIA mandate. Echoing the redundancy cited in Canada’s official budget proposal, Baird told several newspapers that, “There’s a real hodge-podge of environmental assessment requirements – of overlap and duplication. Many of them are just duplicating what’s done at the provincial level.”

There is legitimacy to these latter concerns given the depression and the immediate economic value that construction can bring. But the logic behind the first option, that certain projects (like water treatment plants or public transit infrastructure) ought to be exempt from an EIA because their purpose is to mitigate environmental harm, is terribly flawed.

Barring the invention of environmentally friendly bulldozers, shovels, and the like, a project’s finished product ought to not blind Canadians to the harm that the project’s construction might wreak on surrounding areas. For this reason, allprojects, regardless of their purpose and cost, must be subject to at least one EIA.

As alluded to earlier, the EIA also provides a valuable civic service to the Canadian people. Jamie Kneen of Mining Watch Canada, an environmental watchdog organization, highlighted the fact that the EIA can facilitate the exchange of information between people while allowing public concerns about certain government actions to be addressed.

“Whether it’s a small footbridge or a huge open-pit mine, if a project is badly designed or if it’s just a bad idea to begin with, the public needs a way to make sure it is fixed or stopped,” Kneen said.

Ongoing debates within governments are framed within the anachronistic concept that economic recovery must come at the expense of environmental harm. It is necessary to forego these false zero-sum boundaries, by tethering economic growth to spending that will have positive short- and long-term implications for the environment. Only EIA-approved investment that addresses climate change, taps into renewable sources of energy, and creates sustainable and healthy communities can effectively satisfy the two public goods of economic recovery and environmental protection.

Please continue checking back to see how the planet’s governments are responding to this universal challenge.

UNEP Governing Council to Decide Future of Access Principles in Nairobi

By David Heller (Posted: February 6, 2009) 

At the upcoming United Nations Environmental Program (UNEP) Governing Council meeting in Nairobi, Kenya, delegates will have the unprecedented opportunity to extend the adoption of important principles – a peoples’ right to access information, participate in their government’s decision making process, and seek redress in matters affecting the environment – to states around the world. But in preliminary negotiations, not all delegations were sanguine about committing to spread the codification of these principles globally.

In 2008, a select group of high-level external experts and judges, in consultation with the UNEP secretariat, was formed to draft principled guidelines that direct developing countries in the creation of national legislation protecting these access rights.

But alone, these guidelines can not compel state action. So the UNEP secretariat also drafted a complementary resolution, on how the Council should act upon the principles and work to ensure states reflect them in new law.

As it’s currently written, the draft resolution is that the Council:

Decides to adopt the guidelines for the development of national legislation on access to information, public participation and access to justice in environmental matters as set out in the [guidelines]… [Emphasis added]

Adoption of the guidelines by the Council would be a very positive, symbolic step for UNEP and the spread of the access principles. But, this language is not immune from alteration, and indeed, has already been compromised.

During preliminary discussions, several delegations, allegedly including the American contingent, expressed interest in replacing “adopt” with “take note of,”a subtle proposal with profound implications for the strength of UNEP’s commitment.

It is imperative that this change not occur.

If the Council were to merely “take note of” the guidelines, then they would be sending the wrong message to member countries: that it would be sufficient for all to do the same. While “adoption” implies an unequivocal recognition that the guidelines are desirable and binding, “taking note of” is pleasantly ambiguous and leaves far too much room for them to be ignored. The Council, by “taking note” of the guidelines, would simply be recognizing that they exist; a far cry from guaranteeing that the guidelines serve their namesake’s purpose and direct future action: a small but far from trivial distinction.

This proposed change will not go unopposed. The Access Initiative (TAI) has been working hard to leverage its influence and keep the language unmolested. Attending the meeting in Nairobi and advocating on TAI’s behalf will be Mr. Augustine Njamnshi, TAI coordinator in Cameroon, and part of the official UNEP Cameroonian delegation.

TAI has also harnessed support from its allies in the Irish and Argentine delegations, who share its concern over the dilution of the original language and will be advocating for the Council to remain committed to adoption, as the initial draft explicitly recommends.

The American delegation’s alleged complicity to the proposed change was particularly alarming. Given the Obama administration’s newfound commitment to promoting transparency and public participation in its own government, it appears as though the sea change in U.S. politics has not yet filtered down to affect the composition nor stance of its Nairobi delegation. But surely they must have been briefed on their new boss’s priorities. It’s baffling as to why the State Department Officials, representing the new administration, might be willing to water down stronger language when they arrive at the negotiating table.

Not only would U.S. support of weak language be inconsistent with its existing commitments, the U.S. delegation should consider its snowballing effects. Other nations, particularly China, will be emboldened by any U.S. disapprobation of the existing recommendations, making efforts to spread access principles beyond parties to the Aarhus Convention that much more challenging.

If any change is to be made to the initial draft of the proposed action document, it should include language that commits delegates towards creating a proper convention in the future – similar to the existing Aarhus Convention, but global in scope. Because the Aarhus parties are strictly European and Central Asian in origin, creating a similar scheme in Nairobi, where both developed and developing countries will have a presence, would be a step towards globalizing access principles. And that is an ideal that all delegations ought to be striving towards.

Stimulus or Environment – Must We Choose?

By Seema Kumar (Posted: February 6, 2009) 

The American Recovery and Reinvestment Act of 2009, the infamous stimulus package that is regarded as the much needed bandage to the ailing U.S. economy, is locked in Congressional tension. If passed, the Act would inject an almost $900 billion into federal programs and projects, with the explicit purpose of creating jobs, investing in infrastructure, advancing energy efficiency, and restoring credit confidence. Amendments to the bill have been aggressively tossed back and forth in the name of urgency and relevance to stimulation, and one in particular has enraged environmentalists.

U.S. Republican Senator John Barrasso of Wyoming, in a February 4, 2009 press release, depicted the National Environmental Policy Act (NEPA) as a red-tape inhibitor, which is hindering the implementation of “shovel-ready” projects that are otherwise prepared to proceed with construction, but for a NEPA mandate that requires the environmental impacts of federally-funded projects be reviewed and mitigated. Senator Barrasso’s amendment specifically seeks to “streamline” the NEPA process with a 270-day deadline to complete an environmental review for stimulus package projects. Under the current NEPA provisions, environmental reviews are not subject to such deadlines.

The U.S. Chamber of Commerce along with a band of business representatives have endorsed Barrasso’s amendment. In fact, the U.S. Chamber of Commerce has been a long-time advocate to revise NEPA, as evident from a Comment of its Initial Findings and Draft Recommendations on improving NEPA it submitted to the NEPA Task Force on February 6, 2006. The Comment characterizes NEPA as a “weapon to delay and eventually terminate, through attrition, proposed projects that some people oppose.”

According to Steven Biel, Greenpeace’s global warming campaign director, NEPA “is an absolutely essential review to ensure public involvement in public works decisions… There are more than enough shovel-ready projects out there that have already undergone NEPA reviews. There is absolutely no reason why this process needs to be waived.”

In response to Barrasso, Senate Environment and Public Works Committee Chairwoman Barbara Boxer (Democrat-California) quickly retorted with an amendment of her own, which would require that any project that is not in compliance with NEPA either finalize its review or be replaced by another project that has a final review.

As the Senate readies to vote on the stimulus package, for the sake of the economy and the environment, it is crucial that President Obama emphasizes the purpose of this bill – jobs, infrastructure, energy efficiency, and credit confidence – and asks Congress some probing questions:

How is it logical to argue whether projects that have not conducted a proper environmental assessment should violate existing law while projects that are truly “shovel-ready”, worth millions in dollars and job creation, can benefit from stimulus funds right now?

How does curbing NEPA promote to energy efficiency when the potential consequences of such actions could threaten public health and energy independence?

How can America invest in solid infrastructure without prescribing to the necessary procedures and assessments (including environmental) needed to ensure public safety and durability?

Video: Changing Channels: Ukraine’s Chance to Save the Danube Delta

By Joseph Foti (Posted: February 9, 2009)

The Danube Delta is Europe’s largest wetland, but it is threatened. The Government of Ukraine wants to put a large canal, including a dam through the core area of the Danube Delta Biosphere Reserve. This video tells the story of the fight to save the Delta, and how access rights-access to information, public participation, and access to justice are critical to preserving a global treasure.

Changing Channels: Ukraine’s Chance to Save the Danube Delta from Joe Foti on Vimeo.

Jackson Ushers in New Era of Transparency for U.S. EPA

By David Heller (Posted: January 30, 2009)

The Obama administration’s emphasis on transparency and public participation in government was echoed in a recent introductory memorandum that Lisa Jackson, the newly appointed administrator of the Environmental Protection Agency (EPA), circulated to her staff.

This commitment to access principles – a clear deviation from recent EPA precedent – will face an immediate test.

In the memo, Jackson describes her vision of how EPA, under her leadership, will uphold transparency and public participation in its work. As she says,

Public trust in the Agency demands that we reach out to all stakeholders fairly and impartially… and that we fully disclose the information that forms the bases for our decisions. I pledge that we will carry out the work of the Agency in public view so that the door is open to all interested parties and that there is no doubt why we are acting and how we arrived at our decisions.

Of particular interest to Jackson is soliciting input from marginalized, impoverished, and minority populations, whom as she says, “have been historically underrepresented in EPA decision making.”

This interest in improving external transparency is complemented by a hope for more inclusiveness within the EPA itself.

“As I develop my agenda,” Jackson informed her staff, “I will be seeking your guidance on the tasks that are most urgent in protecting public health and the environment and on the strategies that EPA can adopt to maximize our effectiveness and the expertise of our talented employees.”

Jackson is not the only EPA administrator who has sought to introduce transparency and participation in the agency’s actions.

In 1983, then-EPA administrator William D. Ruckelshaus released a similar in-house memorandum that outlined many related concepts.

Ruckelshaus famously spoke of his desire to have EPA operate “in a fishbowl.” His influential memo went on to say,

EPA will provide, in all its programs, for the fullest possible public participation in decision-making. This requires not only that EPA employees remain open and accessible to those representing all points of view, but also that EPA employees responsible for decisions take affirmative steps to seek out the views of those who will be affected by the decisions. EPA will not accord privileged status to any special interest group, nor will it accept any recommendation without careful examination.

But these principles did not permeate through all forthcoming EPA administrations. Stephen Johnson, EPA’s leader under G.W. Bush, was accused of repeatedly ignoring the scientific findings of agency scientists and relaxing standards for polluters.

This legacy of partisanship, combined with a shrinking budget (over the past six years, EPA’s budget has fallen by $1.3 billion, or 15 percent) and diminished authority over regulatory matters, has led many to question EPA’s credibility and whether or not it’s capable of fulfilling its environmental protection mandate.

Russell Trail, EPA administrator during the Nixon and Ford eras, has gone so far as to say that, “EPA has become a nonentity.”

Likewise, during Jackson’s Senate confirmation hearing, Barbara Boxer, chair of the Senate Environment and Public Works Committee, told Jackson “The EPA needs to be awakened from a deep and nightmarish sleep.”

Consider the alarm sounded, to the tune of a massive spending package with clear environmental implications. Contained in the stimulus bill just passed in the U.S. House of Representatives is a $151 billion infrastructure component, consisting of large scale transportation and construction projects. It’s up to EPA to oversee the monitoring of environmental impacts and mitigations of these allocations, and to diligently enforce environmental standards when violations arise.

Though weakened, our nation’s official environmental steward must not claim defeat. Instead, amnesia would be more appropriate, as the time is ripe for EPA to reemerge as a vigilant enforcer of environmental standards. Jackson must prove that she can lead her agency in consonance with the principles outlined in her memo and not fall victim to the flaws of her predecessor. If she can manage to do this, then not only will EPA re-gain some of what it has lost, it can help guarantee that transparency and public participation in environmental policymaking will be here to stay. It’s a win-win situation that Jackson ought to take advantage of, and that Mother Earth will thank her for.

Stay tuned for updates on how well Jackson’s EPA is upholding its commitment to access principles, as money for the stimulus bill is doled out.

Tussle Between the Central Information Commission and Supreme Court Over Disclosure of Assets

By Ritwick Dutta (Posted: January 29, 2009) 

The last few weeks had seen a unique situation in India where the Supreme Court (the Apex Court in the Court) filed a petition before the Delhi High Court against an order passed by the Central Information Commission (CIC).

The situation arose in view of the order of the Central Information Commission directing that “The Central Public Information Officer (CPIO) of the Supreme Court is directed to provide information as to whether declaration of assets, etc., has been filed by the Honourable Judges of the Supreme Court or not within ten working days from the date of receipt of this decision notice,”.

The judgment followed the refusal by the Supreme Court to entertain a query on the declaration of assets by judges. The Applicant S C Agrawal had applied to the apex court for a copy of a Full Court Resolution passed on May 7, 1997, prescribing “every judge to make a declaration of assets in form of real estate or investments held in their names or in the name of their spouses and any person dependent on them to the Chief Justice”. He had also asked if judges had complied with the Resolution, and whether any high court judge had ever declared their assets to their respective Chief Justices. The Supreme Court had parted with a copy of the Resolution, but stonewalled the other queries.

It was argued by Supreme Court officials during the hearing that the declaration of assets submitted by the judges of the Supreme Court are confidential and the information has been provided to the Chief Justice of India in a fiduciary relationship and, as such, its disclosure is exempted under the Act.

The Central Information Commission however held that “The appellant…is apparently not seeking a copy of the declarations or the contents therein or even the names etc. of the judges filing the declaration, nor is he requesting inspection of any such declaration already filed. He is seeking a simple information as to whether any such declaration of assets has ever been filed by the judges of Supreme Court or High Courts. What he is seeking cannot be held to attract exemption..”

The Delhi High Court on 18th of this January stayed the order of the Central Information Commission and appointed noted senior lawyer Fali Nariman as an Amicus Curiae to assist the Court. However, Nariman informed the High Court that as he did not agree with the stand of the judiciary, and as such he could not be a friend of the court. Mr. Fali Nariman has refused to act as amicus curie, on the ground that his views on the judges of the High Courts and Supreme Court declaring their assets is well known. Mr. Fali Nariman has repeatedly opined that judges of the High Courts and Supreme Court should declare their assets on assumption of office and continue to annualy declare their assets.

The former CJI, J.S. Verma, has also openly criticized the stand of the judiciary not to make public the assets disclosed by judges voluntarily to the CJI.

The High Court will further hear the matter on 12th of Feb.

Obama Honors Access Principles in Symbolic Opening Moves

By David Heller (Posted: January 22, 2009) 

In just the first full day of his historic Presidency, Barack Obama took significant steps towards restoring transparency and accountability in a government widely criticized for its unbridled secrecy, by signing an executive order (EO) affecting the release of presidential records, and releasing three memorandums, including, one reforming the Freedom of Information Act (FOIA) and another articulating his administration’s commitment towards openness and transparency in government.

These acts – a reversal of Bush administration policy – help address several governance flaws previously identified as deserving immediate attention. By initiating their term with these impressive documents, the Obama administration has shown it shares TAI’s commitment to promoting the values inherent in open government.

Obama’s EO revokes Executive Order 13233, a Bush administration product that allowed former presidents or their heirs to flaunt executive privilege in an effort to keep their records secret and protect their reputation. Since 1976, following the Nixon Administration’s alleged abuse of executive authority, all communications by the President and his officers have been archived, and are eligible for release after 12 years through FOIA requests. But Bush’s EO compounded the difficulties facing interested observers requesting access to information following this 12 year blackout.

Obama’s EO expands what has been a restricted right to access information concerning governmental action. It entails three major changes.

Scope of exemptions

First, Obama has reduced the justifications a President (sitting or former) can employ to deny a FOI request, through “executive privilege”. Under Bush’s EO 13233, presidents were exempt from sharing information if doing so would potentially compromise:

military, diplomatic, or national security secrets, Presidential communications, legal advice, legal work, or the deliberative processes of the President and the President’s advisers.

Under Obama’s new EO, this list has shrunken to:

national security (including the conduct of foreign relations), law enforcement, or the deliberative processes of the executive branch.

With fewer executive privilege exemptions, presidents will be less able to rebuff FOIA requests.

Procedures

The new EO also revises the procedure of reviewing FOIA requests, changing it from a system of presumed secrecy to a system which requires review by the President and staff. Under Bush’s EO, upon receipt of a request that might trigger executive privilege, the National Archivist simply had to notify the incumbent president and the previous president. The former president then had 90 days – with the possibility of extension – to request executive privilege. When faced with a former president seeking to exercise this privilege, the burden of proof was on the sitting president to prove “compelling circumstances” to release the information.

Obama’s EO restricts the powers of the former president to dictate the fate of an FOI request. For one, it significantly reduces (to 30 days) the time a former president has to review the request. Secondly, it includes the Attorney General – a cabinet-level officer held accountable by Congress – in the process of review. This not only ensures that more opinions concerning the requested information’s sensitivity are heard, it protects a sitting president from being unduly influenced by a former president’s wishes.

Powers of the sitting president to override former presidents

In consonance with the previous revision, Obama’s EO explicitly empowerssitting presidents to override a past president’s desire to keep information secret. Previously, under Bush’s EO, an incumbent president had to be faced with “compelling circumstances” to overturn the request of a former president to deny the disclosure of information.

Now, sitting presidents are not discouraged or deterred from contradicting the parochial wishes of previous presidents. Instead, the National Archivist “shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order,” without regard for how ‘compelling’ the incumbent president’s reasons may be.

The values implicit in the EO were complemented by two memorandums also released on Obama’s first day.

Memorandums

The memorandums, while not yet publicly available on the White House website, confirm the new administration’s commitment – articulated throughout the campaign – towards promoting an accessible and transparent government.

Filled with sweeping normative statements, they also include a framework for ensuring these values will be reflected in upcoming policy reform.

FOIA Memorandum

In a memorandum on the FOIA, Obama clarified that it would be the position of his administration to err on the side of releasing information, rather than restricting it. His claims are in stark contrast to a memo filed by then-Attorney General John Ashcroft, which reassured government agencies and departments they would be supported in efforts to profligately reject FOIA requests. As the new President says,

All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.

Obama directed Attorney General Eric Holder and Director of the Office of Management and Budget, Peter Orszag, to issue new internal guidelines informed by this commitment to openness.

Transparency and Accountability Memorandum

The second memo was no less ambitious. Obama begins,

My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.

In accordance with basic principles of good governance, the memo goes on to say, “Government should be transparent,” “Government should be participatory,” and “Government should be collaborative.”

Stating the importance of running a government that embraces such values is one thing. Prompting that government to act on behalf of these ideals is another – and far more difficult – task entirely.

But Obama seems up for the challenge. To translate these goals into a practical set of guidelines, he ordered the creation of an Open Government Directive within 120 days to instruct governmental agencies and departments to “take specific actions implementing the principles set forth in this memorandum.”

Stay tuned for updates about the content of the Open Government Directiveand opportunities to shape it.

For insight into how the new actions detailed in this post align with general World Resources Institute (WRI) principles and activities, particularly their work to protect the environment, please read this article, posted on WRI’s main website.

Struggle Over Information in Kenya

By David Heller (Posted: January 16, 2009)

The Kenyan government’s power to undermine the press’ essential role in providing and interpreting access to information has been reaffirmed and strengthened by President Mwai Kibaki, who rang in the New Year by codifying a series of amendments to the controversial 1998 Communications Bill.

“While Press Freedom is a cardinal pillar of democracy,” the President explained, “this is a right that carries with it special duties and responsibilities. Press freedom must therefore be counterbalanced with other freedoms and must at all times take into account the overriding interest and the safety of Kenyans.”

The original Communications Bill liberalized and regulated the fledgling Kenyan communications sector. An early balancing act, it also reflected an unwillingness to fully cede control over the media’s content to private entities.

Section 88, the target of much disdain, empowers the Minister responsible for Internal Security “to take temporary possession of any telecommunication apparatus or any radio communication station or apparatus within Kenya,” upon “the declaration of any public emergency or in the interest of public safety and tranquility.”

This section also grants Kenya’s government the power to intercept, detain, and dispose; any telephone call, email, or letter, being transmitted at such a time.

Since being passed, the government has not been hesitant to exercise this power and wrest control of credible media outlets.

As The Standard reported,

At the height of the chaotic 2007 general election, the government deployed paramilitary personnel at [a] KICC media centre who flushed out journalists, sealed off the facility then switched off live transmission feeds. The government also banned live coverage of violent chaos across the country immediately [after] President Kibaki was sworn in late in the evening.

The new amendments do little to prevent such events from recurring. While their stated purpose is to euphemistically “help streamline and introduce regulatory provisions in electronic transactions and broadcasting,” they utterly fail to address Section 88 and in fact erect additional barriers to the free flow of information. Now, the government can control the press’ output without requiring the pretense of emergency.

As International Freedom of Expression eXchange reported,

The amendments… grant the Information Minister sweeping powers to control what can be broadcast, when and in what form. The Minister will also appoint the government-dominated Communication Commission, which is charged with licensing broadcasters and ensuring the broadcasts are of “good taste.” Among other provisions, penalties for press offences – fines and jail time – have also increased.

President Kibaki justified codifying these restrictive measures by referring to the amendments’ goal of initiating economic growth.

“The enactment of the new law,” he says, “would enhance investor confidence and lead to more jobs and economic benefits especially for our youth.”

He also took some parting shots at the Kenyan media – who’ve recently been very critical of Members of Parliaments’ inflated salaries – saying that the press must “recognize that freedom must go hand in hand with responsibility.”

Despite his ostensible commitment to democratic principles, President Kibaki misunderstands the relationship between freedom and responsibility. It is the responsibility of the press is to report the truth. Kenya has stacked the deck against its media so much so that it has undermined the ability of the press to uphold this responsibility and report even innocuous truth. What good is the press’ freedom then when their ability to fulfill this purpose is being co-opted?

Furthermore, Kibaki underestimates the supreme value of truth for democracies. Citizens’ knowledge of their governments’ true actions – made possible through their access to information – is an ideal of fundamental importance. It ought to always trump a state’s fleeting and capricious desires for prosperity, happiness, and even security or so-called interests.

Implicit in the President’s remarks is his desire for a balance between the ideals of a secure state and his peoples’ right to a free press. While the oft legitimate tension between societal safety and freedom of information is at the heart of many struggles over media censorship, he would do well to take a step back and see just how unbalanced his new laws have made these competing goals become. As they say, the truth hurts. Let’s hope there are enough courageous journalists left in Kenya to make him feel its sting.