Crystal,
 
Thank you for sharing the below. Articles 19 and 20 are appreciably anchored in the constitution under sections 79 and 80. Nearly every independent nation in today's world has laws that define states of emergency for there will be events that demand such emergencies be declared so as to preserve public order and life.
 
To evaluate the potential for arbitrary declarations, we should review how many times and under what circumstances "states of emergency" have been declared in the last 45 years. If we  contrasted this with the case of Egypt which has been under a state of emergency since 1981 http://www.hrw.org/en/news/2008/05/27/egypt-extending-state-emergency-violates-rights we would be appreciative that there have been no repetitive abuses of such declarations in Kenya.
 
The constitution requires laws that are inconsistent with the mentioned sections to make provisions that are reasonable in the interest of "defence, public safety, public order, public morality or public health". If section 88 is unreasonable then it could very easily be:
 
1) Declared unconstitutional through the courts.
2) Amended to add safeguards against abuse.
3) Deleted in totality
 
Options 2 and 3 require legislative action while option 1 requires a truly independent judiciary. Option 3 raises the question of what ought to be specifically done about rogue elements that endanger public safety and order were the section to be deleted. A past raid has been cited as one of the driving reasons for deletion, such raids are an abuse not a proper application of the law hence the need for option 2 above and an independent, well functioning judiciary to remedy or deter the same. 
 
Were there to be a Kenyan Radio Mille Collines broadcasting content that endangers public life, what solution anchored in law do the proponents for the deletion of section 88 suggest could be used to reasonably prevent such elements from doing so? It seems that this is an issue the proponents are apparently not keen, willing or able to answer.
 
Revisiting the declaration of states of emergencies. The Preservation of Public Security Act offers more stringent measures that would make section 88 appear saintly. Does this imply that the media is comfortable with the more stringent measures of the PPS act? Deletion of section 88 would still leave room for adhoc potentially more stringent section 88's to be imposed under the PPS. It would be best that such provisions are not left open ended as to the extent they can be applied and by whom.
 
4.(1) Where an order under section 85 of the Constitution (which relates to the bringing into operation of this Part) has been made by the President, and so long as the order is in force, it shall be lawful for the President, to the extent to which this Part is brought into operation and subject to the Constitution, to make regulations for the preservation of public security.
 
2) Regulations for the preservation of public security may make provision for -
(d) the censorship, control or prohibition of the communication of any information, or of any means of communicating or of recording ideas or information, including any publication or document, and the prevention of the dissemination of false reports;

On Mon, Dec 15, 2008 at 8:59 AM, Crystal Watley <crystal@voicesofafrica.org> wrote:
A free and fair media is a necessary element in any democracy. The press is the watchdog of the government. They ensure that the truth be told. The government should have no power in a democracy to control news outlets. If the bill is signed the government is essentially stealing the voice of the people so they will be able to declare a "state of emergency" when it is convenient for them. Giving the government a gag hold on the media's ability to report the truth. The Universal Declaration of Human Rights written 10 December 1948 contains two articles which are in direct opposition to Article 88

Article 19.

Article 20.


2008/12/15 Moto Baridi <motobaridi@motobaridi.com>
next thing, they'll require ISP's to block sites that include any "offensive" text or image.
Did you just search for "paedophile" in Wikipedia?
"Sorry. The page you requested has been deemed inappropriate by parliament and shall not be displayed. If you have any queries, please contact your MP."
then they'll storm your house and confiscate those Nigerian movies because of that barely-visible 1.2 sec bedroom scene.
this is the first step on the slippery slope towards *gov't-sponsored* net censorship.
unfortunately, even where it has been implemented by people who understand much
more about these things,it has failed miserably in ALL instances.
when will people ever learn from the painful experiences of others (e.g. Australia)??

yours cynically,
[motobaridi]
[carpe noctem]

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Crystal "Naliaka" Watley
Voices of Africa
crystal@voicesofafrica.org
http://www.voicesofafrica.org/

"You must be the change you wish to see" - Gandhi

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