Any institution that seeks to promote public interest is faced with the challenge of ensuring its continued relevance to the people it seeks to serve. This challenge becomes particularly daunting when such relevance determines the operational freedom that the institution can exercise in a situation of administrative and political restrictions. Two critical institutions that have sought to serve Kenyans by expanding the latitudes of expression are the legal profession and the media. On various periods in Kenya’s political history, the two institutions have faced various challenges. Often, they have been successful. But they have also often failed.

Many a time, the failures of the legal profession and the media in promoting public interest have been the result of their own failure to remain relevant to the aspirations of the people. Beginning by making a wrong assumption about the people’s expectations, they have often found themselves vulnerable in competition with a powerful adversary, the government.

Vulnerable position

This is the situation that Prof Yash Pal Ghai says the legal profession found itself in in the 1960s. In his book, Public Law and Political Change in Kenya, he said the Bar was in a vulnerable position because of its seeming relevance to the needs of most Kenyans, and its unwillingness to do anything about improving its organization and work. He remarked: “Unless it can convince a significant number of people that it can perform important services for the community, it will fail to obtain the support it needs to resist present encroachments of the government.” The legal profession paid no heed to the warning, and by the 1980s, had become totally ineffective in promoting public interest.

When in October, 1985, the Law Society of Kenya petitioned the government to appoint an indigenous Kenyan as Chief Justice, President Moi told the Lawyers to first put their house in order before commenting on the Judiciary. He told LSK that it had not lifted a finger against malpractices by its members. When LSK protested the removal of tenure of judges, the then Vice-President, Josephat Karanja, dismissed lawyers as “colonial anachronistic cobwebs” and the society as an “irritating irrelevance”. No Kenyan rose up in support of the legal profession.

Examining the vandalised Standard press

The media in Kenya today is at a similar crossroads. After the midnight raid on the Standard Newspapers premises, the media expected an all-round resounding public condemnation against the Government’s actions. However, listening to the call-ins to FM stations, and reading the results of polls conducted by TV stations, it became clear the condemnation was neither all-round nor sufficiently resounding. A poll by NTV revealed that 42 per cent of those polled believed the media had been hostile to the Kibaki government.

These figures and contents of the call-ins to FM stations are disturbing. They indicate the possibility that the media may not have sufficient public support to resist the encroachment. If the numbers of people who believe that the media are hostile to the Government rises, the media can expect a very bleak future.

In his book I Accuse the Press, veteran journalist Philip Ochieng’ analysed the situation the media in Africa were putting themselves. He wrote: “The continual pressure on government to loosen their grip on the means of public information can justifiably be seen as a positive development; for where press voices are muzzled, the myriads of problems which the Third World governments claim they are trying to solve cannot be reflected very clearly in a mirror for full identification and effective solution. Yet the newspaper editor appears incurably addicted to lifting himself way above society, from where he gives it the bird’s eye view and makes the avian motions of criticizing it, but only from the editor’s own extremely narrow subjective armchair. He seems to say that his own right- nay, privilege as an intellectual magistrate- should have no limiting conditions whatsoever. The editor is the absolute judge, inevitably pointing an accusing finger at everybody, every situation, everything. Like Jehovah Elohim, he is no respecter of persons. Like him, he is a god of wrath.”

These words were written in 1992. To be fair to Mr. Ochieng’s incisive analysis, the words cannot be said to represent what challenges the media in Kenya and the rest of Africa, faces, but they are a good representation of one of the main concerns in so far as the relationship between the media, the people and the Government goes.

Hopelessly academic

And the question the media must answer is whether Kenyans regard the current trends in press freedom as serving their needs. This question as Mr. Ochieng’ warns, cannot be answered from the perspective of the editor as he is wont to interpret his work from his own perspective. He says: “This tendency by editors and other intellectuals to rise high above society in order to be able to make what is only a most superficial critique of that society is basically a self-serving one.”

Mr. Ochieng’ seems to be saying that you cannot have press freedom purely as a legal abstract. The press in Kenya will not be free simply because there exists an international mandate for a free press. There can be no better summary of this media cross-roads than his summary: “To demand ‘greater democracy’ and ‘free expression’ when you have nothing at the base to discuss with on a national basis is to b hopelessly academic. The majority of the people are too busy trying to produce just a little frothier material needs to be interested in such ‘democratic’ abstractions. Their political leaders… do not know how to reply to them but can only hurl phrases which are obviously geared towards either snatching power or self-preservation in power. As a result of the present political crisis in Kenya, the ruling party was forced to open itself a little and freedom of the press became widespread. But we proved totally unable to exploit it, to show that we were ready to use such freedom creatively, and for the benefit of the country as a whole.”