By Kodi Barth

Whenever the Press and the Judiciary run into each other these days, it is dangerous business to make a comment, any comment, on the encounter. Lawyers rush to court and jail threats are dangled over the perceived culprit’s head. It is a disturbing development.

If five people stood by the roadside and talked for three days about a case in court, would they be dragged before the law to face contempt of court charges? Hardly. But the Press is a touch more influential than five chaps yapping away by the roadside. So, journalists are trained to tread carefully where the law is concerned.

It must be made clear from the outset that whenever a journalist — this columnist included — writes anything touching on the courts, it must be done with the utmost respect. For all our freedoms stop at the law, and the courts are the last interpreters of the law.

On the other hand, the Judiciary is the third arm of government. And the Fourth Estate is known the world over for its role to check the excesses of government. May the Press keep watch on the courts?

Why not? But how to do so effectively without going to jail is a case for serious head scratching. A recent local case should demonstrate the dilemma facing Kenya and, indeed, any emerging democracy.

A Nairobi magistrate last week ruled that journalists should be compelled to disclose the sources of their stories because their code of conduct is not recognised in law.

The magistrate ordered a journaslist with The Standard, Evelyne Kwamboka, to appear in court to reveal the source of her June story carried under the heading: "Deya Miracle Babies to be adopted by German couple."

It was a startling development. And the Canadian based International Freedom of Expression Exchange, IFEX, is now closely monitoring the case. It was startling because it effectively pulls the rug from under the Press.

A judicial process in the United States got close to doing so last year. New York Times reporter Judith Miller was jailed in June last year for refusing to identify a confidential source to a grand jury investigating the leak of a CIA operative’s identity. Miller went to jail with her head up, proudly stating that she was not above the law, but that journalists must be trusted to keep sources secret. "If journalists cannot be trusted to guarantee confidentiality," she said, "then there cannot be a free Press."

Should the highest court in the land, where Kwamboka has filed an appeal, uphold our magistrate’s ruling no newspaper will ever easily publish a story citing anonymous sources.

Yet, as much as anonymous sourcing is a frequent blow to credible journalism, it is not without merit. Indeed, if a journalist’s source were a whistle blower or a private citizen whose identity would jeopardise lawful source of income, expose them to physical harm or public ridicule, it would be unethical to name such a source.

Still, it is hard to quarrel with the magistrate’s ruling. Journalists’ code of conduct and ethics truly has no legal foundation. Why should the court’s hands be tied by something outside the law? Why should journalist alone be allowed a privilege that may traverse justice, particularly justice to a private citizen?

On the other hand, it is hard to see how anyone, let alone a court of law, would raise a finger against ethical practice within an institution. Perhaps what is really in doubt is whether the journalists go by their own vowed code of ethics?

But if the Kwamboka case presents a grim picture for the media, Thursday’s ruling by the Kiruki Commission was a welcome reassurance. The Commission of Inquiry investigating the Artur brothers rejected an application by a lawyer who wanted Kenya’s main media organs locked out of the proceedings. Instead, the commission wound up with a rousing restatement of the principles of Press freedom. To shut out the Press would be a grave departure from the tradition of freedom of expression on matters of public interest, said the commission.

It would be wrong for anyone even the courts, do order otherwise.