The first Commandment of Press freedom states that there shall be no prior restraints to publication. This commandment was laid down in 1796 by a legal scholar known as William Blackstone. An English Jurist and Professor of Law, William Blackstone wrote a treatise on law called “Commentaries on the Laws of England.” In these communities, he stated the following regarding Press freedom.
“The liberty of the press is indeed essential to the nature of the free state; but this consists in laying no previous restraints upon publications; and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this is to destroy the freedom of the press.”
The meaning of this commandment is that any act that interferes with or prevents the publication of any material is illegal and any law that does so is unconstitutional. The import of the commandment is not that there can be no punishment for the publication of obnoxious material. William Blackstone thus added to his commandment the following: “But if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.”
The reason why there should be no prior restraints to the liberty of the press was explained by Blackstone as follows: “To subject the press to the restrictive power of a licenser… is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points on learning, religion and government”.
In Blackstone’s reasoning, while there may be justification in government wanting to lock out some sentiments from being published, the judgment of what is to be locked out ends up in the hands of one man. It is he who then decides what is good and legal to be said and what is not.
Firstly, in the process of censuring publications, many good ideas become locked out with the bad ones. And, very often, it is better to deal with the consequences of bad ideas than to suffer the effects of killing good ones.
A good example of this is the case of Galileo Galilei, referred to as the “father of science”. In the early 1600, he began publishing ideas of how the earth moved round the sun. He invented a telescope and used it to prove that these ideas had a scientific foundation. For his effort, he was charged with heresy and his ideas were denounced as blasphemous. He was placed under house arrest. The publication of his past and present ideas was forbidden. Luckily, all his “heretical” ideas survived and they became the foundations of everything we know today as astronomy.
The second fault is that the person deciding on the legality of the publication is exercising an executive function and not a judicial one. Yet, in a constitutional government, only the judiciary can decide as to what is legal. It is not for the executive to decide for the people what a good or dangerous idea is.
One legal jurisdiction that has put into practice Blackstone’s theories of press freedom is the USA. Its constitution provides for the protection of the press by denying Congress any power over the media. In its first Amendment it states: “Congress shall make no law… abridging the freedom of the press…”
As explained by James Madison, later to be the fourth President of the United States, the purpose of removing from Congress the power to control press freedom was to protect the press from the ambitions of the executive as well as the legislature.
In America, it falls on the judiciary to decide whether there should be prior restraint to a publication. So that if the government was of the opinion that an intended publication needed to be stopped in the public interest, then the Attorney-General has to file a suit against the publisher and seek a court order to stop the publication.
In Kenya, the Kenya Communications Amendment Act sets up the opposite kind of system. While England and America rejected prior restraints in the 17th Century, Kenya is adopting them in the 21st Century.
Section 79(1) of the Constitution says that “no person shall be hindered in the enjoyment of his freedom of expression that is to say… freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference.”
Under sub-section (2), it authorizes laws “that make hindrance that is reasonably required in the interests of defence, public safety, public order, public morality or public health.” The sub-section also requires that the hindrance imposed by that law must be reasonably justifiable in a democratic society.
What is the new development in Kenya that justifies the imposition of prior restraints to press freedom at this stage of our democratic development? What are these rare and exceptional circumstances that have arisen to warrant the promulgation of such draconian powers? And who shall decide when such circumstances exist?
According to the Act, it is the decision of the Minister for Internal Security. But our constitution could not have intended that the rights of the people to express themselves freely can be curtailed by the decision of a minister exercising an executive function.
There are many reasons, some even good, why government would want to promulgate a law regulating the media. But the fundamental issue is not how good those reasons are. For it is said the road to hell is paved with good intentions. So long as the effect of that law is to hinder the freedom of expression, it is unjustifiable, the good reasons notwithstanding.