Journalism in Kenya MUST protect human dignity.
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Complaint Regarding the Conduct of Kimiko de Freytas-Tamura- Incoming East Africa Bureau Chief at the New York Times
1. On 15th January 2019, in the wake of the horrific attack at Dusit D2 Hotel, Riverside, Nairobi, Kimiko de Freytas-Tamura (hereinafter referred to as “the Journalist”) wrote and, together with others, caused to be published an article entitled “Shabab Claim Responsibility for Deadly Assault on Nairobi Hotel-Office Complex” (attached herein as Exhibit 1) on The New York Times website. According to the New York Times (hereinafter “the Newspaper”), a version of this story was then printed in the newspaper’s January 16th 2019 edition on Page A8 under the headline: “Militants Stage Deadly Assault at Kenyan Hotel-Office Complex”.
2. This article contained, among other things, 4 photographs of victims and survivors of the attack who were either killed in a very gruesome manner or injured (with both mild and serious injuries) respectively. These pictures were dehumanising and insensitive not to mention, understandably traumatic for the friends and families of the persons depicted therein, as the attack was still on-going at the time of publication.
3. Publishing and sharing these pictures was a violation of the victims and survivors’ rights to dignity (Article 28 of the Constitution of Kenya) and privacy (Article 31 of the Constitution).
4. These pictures were also very disturbing to numerous Kenyans who proceeded to raise alarm on the issue. Thousands of people spoke out against the Journalist and the Newspaper’s callous treatment of Kenyans and unethical reporting.
5. When various Kenyans raised the issue with the Journalist, her response was that she has no say over the pictures which are selected to accompany her stories. She referred complainants instead to the photo department at the Newspaper.
6. Shortly thereafter, the Journalist issued an additional statement in which she attempted to “apologize… for causing anger and anguish”. The photos, however, remained in the article.
7. The Newspaper then proceeded to attempt to issue an apology of their own.
8. On 17th January 2019, the Media Council of Kenya wrote to the Nairobi Bureau of the Newspaper taking issue with the appalling and reckless reporting of the Journalist and the Newspaper and demanding that the offending photographs be taken down within 24 hours.
9. In response to this demand, the Newspaper issued a statement reiterating that the Journalist had no say in the photographs which were chosen to accompany her article and that the photographs were included so as to present “... a clear picture of the horror of an attack like this”. The Newspaper further added that is was its practice to publish dehumanising photographs of victims and survivors of attacks citing its coverage of attacks in New York, London and Manchester.
Particulars of the Complaint
1. The law in Kenya on publishing content such as that which was published by the Journalist is very clear. Paragraph 10 of the Code of Conduct for the Practice of Journalism (hereinafter, the Code of Conduct) which is the Second Schedule in the Media Council Act (No. 46 of 2013) provides as follows:
(1) In general, persons subject to this Act shall not publish obscene or vulgar material unless such material contains [a] news.
(2) Publication of photographs showing mutilated bodies, bloody incidents and abhorrent scenes shall be avoided unless the publication or broadcast of such photographs will serve the public interest.
(3) Where possible an alert shall be issued to warn viewers or readers of the information being published.
2. The photographs in the Journalist’s article did not add any new information to the article. Thus they did not contain any news.
3. Additionally, the gruesome scenes depicted therein did not need to be included in the article as they served no public interest purpose. In fact, based on the responses by the Kenyan public, the photos served no other purpose than to unnecessarily expose the victims and survivors as well as traumatise and scare the public.
4. Finally, the legal requirement to issue alerts where such material is included in an article was not met. While the New York Times is not under the purview of Kenyan law, the Journalist who claims to be the “Incoming East Africa Bureau Chief for the New York Times” and, thus, intends to (if she is not already) practice journalism in Kenya, has an obligation to uphold Kenyan law. She did not fulfill this obligation as she posted the story on her personal account without any warning.
5. In addition to the provisions of Paragraph 10 of the Code of Conduct, by including the above mentioned photographs her article, the Journalist also contravened Paragraph 4 of the Code of Conduct which requires all journalists, including the Journalist to “… respect the dignity and intelligence of the audience as well as the subjects of news”.
6. From the foregoing, it is clear that, through her article, the Journalist grossly violated of the Code of Conduct which was formulated by the government of Kenya to guide journalists, media practitioners, foreign journalists and media enterprises. This is a fact that is clearly stated in Section 45(1) of the Media Council Act (No. 46 of 2013) provides that:
The journalists and media enterprises shall keep and maintain professional and ethical standards and shall, at all times, comply with the code of conduct set out in the Second Schedule.
7. The Journalist’s article is also a violation of the acknowledgement in the accreditation form which the Journalist signed as part of the accreditation process which states that:
“…I acknowledge in receipt of this card I shall subscribe to the Journalism profession Code of Conduct as stated in the Second Schedule of the Media Council Act 2013 and failure to that the Media Council of Kenya may take the necessary measures in accordance with the Act.”
Further, in A Handbook on Reporting Terrorism developed by the Media Council of Kenya in 2016, the Council elaborates further on the need for compassion, sensitivity, and the need to balance the replication of trauma and the need to report fairly and credibly.
In addition to the above law, the handbook also quoted The Programming Code For Free-to-air Radio And Television Services In Kenya which is a regulation passed pursuant to the Kenya Information and Communication Act,1998 (Cap. 411A) . Section 10.2 of this regulation requires journalists to ensure that, in crime and crisis situations:
Coverage should avoid inflicting undue shock and pain to families and loved ones of victims of crimes, crisis situations, disasters, accidents, and other tragedies.
The Handbook also provides that, as a result of the right to privacy as provided in Article 31 of the Constitution, journalism in times of terrorist attacks should be guided by “... decency and human respect…” which require that “...the authorities must first notify the families about their loss before mentioning the victims’ names on the airwaves, never mind showing their pictures”. The handbook also calls on journalists to ask themselves the following questions when it comes to photography:
a) Should this moment be made public?
b) Am I acting with compassion and sensitivity?
c) Will being photographed send the subjects into further trauma?
11. The Journalist and the Newspaper ignores all the above regulations and guidelines.
12. The Journalist’s claim that she has no say in the photographs that are used in her articles is untrue because, as the Journalist states in her biography, she is the incoming Bureau Chief for East Africa. This means that, it is intended that she will head the East African office of the New York Times. The Journalist holds a position of both managerial and editorial power within her organisation and has powers, responsibilities and sway as a result of her title. Thus, even though she may not have chosen the photographs, she could have taken Kenyan complaints and protests seriously and moved the Newspaper to take them down.
13. The complainants are also dissatisfied with the attempts made by both the Journalist and the New York Times to apologise for their blatant disregard for the dignity of the victims and survivors because:
a. These apologies were not accompanied by any corrective measures. As per the drafting of this complaint, the article is still up and the photographs have not been removed or changed.
b. The explanation given by the New York Times, which the Journalist fully supported that they were merely trying to give readers “...a clear picture of the horror of an attack like this…” is disingenuous because a similar objective could have been met without posting photographs of dead and injured Kenyans.
c. Finally, the allegation that the New York Times and, by extension, the Journalist, “… take the same approach wherever in the world something like this happens” is simply untrue. This is supported by the following key facts:
i. The New York Times coverage of other tragic and horrific attacks such as the Orlando Shooting on 12 June 2016 and, most recently, the ISIS attack in Syria which killed 4 Americans did not feature a single picture of a dead victim or an injured survivor.
ii. Also, by its own admission, the New York Times subscribes to there is a hierarchy when it comes to the value of a life and thus the dignity afforded to the dead which the New York Times subscribes to. This hierarchy was clearly set out in an article which was written by Sarah Sentilles, dated 14 August 2018, titled When We See Photographs of Some Dead Bodies and Not Others and published in the New York Times Magazine. At the top of the hierarchy is are American soldiers - which is why there are no pictures of dead American soldiers in any publication. At the bottom of the hierarchy is minorities and marginalised groups which includes black people - which is why the New York Times and the Journalist had no qualms using pictures of dead and injured Kenyans to create a shock factor or, as they call it “…a real sense of the situation”.
14. From the above, it is clear that both the New York Times and the Journalist, through the photographs in the Journalist’s article, exhibited a reckless disregard for both the privacy and dignity of Kenyans and the laws that govern journalism in Kenya.
15. The Complainants are aware that the neither the government of Kenya nor the Media Council have jurisdiction over the New York Times.
16. However, in accordance with Sections 6 (d), (g), (h), (k) and (m) of the Media Council Act, the Media Council has the mandate to regulate her conduct as a foreign journalist working in Kenya. Additionally, in accordance with Section 31(b) of the Media Council Act this Complaints Commission has jurisdiction to hear and decide complaints made against her on the basis of her conduct as a journalist.
17. It is in light of this, and in accordance with Section 38(f) and (h) of the Media Council Act, the complainants pray that the Commission will:
1. Impose a fine of one hundred thousand shillings (KES 100,000) on the Journalist for her gross violation of both the Media Council Act and the Code of Conduct; and
recommend to the Council that the Journalist’s accreditation be suspended and that her name be removed from the register of the journalists; or
In the Alternative, if the Journalist is not currently accredited in Kenya, the complainants pray that any accreditation application she may make be denied on the grounds of her conduct as set out above which clearly illustrates that she is an insensitive, unethical and irresponsible journalist.
18. We hope our remedies shall be granted.
 A bureau chief is the head of a regional New York Times Office
 Paragraph 1 of the Code of Conduct, Schedule 2 of the Media Council Act
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