By Stephen Mutoro

With every winner in whatever contest and however fair or otherwise the process can be, there must exist an unhappy and an even unrelenting loser.

But that is the multi-faceted nature of how justice can be felt and perceived. Wikipedia defines justice as “a concept of moral rightness based on ethics, rationality, law, natural law, religion, equity and fairness”.

“Lady Justice”, the Roman goddess, depicts justice as equipped with three symbols: a sword symbolising the court’s coercive power; a human scale weighing competing claims in each hand; and a blindfold indicating impartiality.

That justice when it is warranted, may occasion “bending” the law as we know it to appease severely aggrieved parties – I agree with the ruling on direct issuance of the Broadcast Signal Distribution (BSD) licence, subject to other terms and conditions given to competitors, to local media houses.

A sensational myth that the Consumers Federation of Kenya (Cofek) and Media Owners Association (MOA) are against digital migration is a baseless distortion and distraction from pursuing the noble objective as confirmed by the historic ruling.

We have argued severally that successful digital migration is a process and not an event. It is the switch-off of the analogue signals that is an event.

So what happens with an unjustifiably rushed switch-off before consumers acquire sufficient number of Set Top Boxes (STBs)?

We have been told that the peculiarity of Kenyans is that they act at the last minute and that they would eventually buy the STBs anyway.

Affordability challenges for the poorest of the poor as weighed down against priorities would leave many such homes with blank screens, indefinitely.

Such an eventuality bears adverse legal, socio-economic and even political implications. The government would be in breach of Article 35 of the Constitution. The ensuing disconnection between the public and their government would be more costly in the long run especially on accountability and public resource wastage.

Since media outlets not only inform and entertain but also educate, consumers will have a challenge on many aspects such as new products and pricing trends in the market. Proportionately, the huge advertising spend will be sharply dented to detriment of the national economy as well as likely job cuts and low investment within the media sector.

How have the consumers benefitted from the ruling? In summary, this is how the consumer will benefit;

 First, that the rule of law and public (stakeholder) participation will be respected more by the Executive arm of government.

Two, the consumer representation contemplated under Section 94 of the Consumer Protection Act 2012, on all regulatory bodies will climb a notch higher.

Third, when we went to court to delay digital migration which would have happened on December 31, 2012, we argued that consumers needed more time to acquire STBs at reasonable cost, be sensitised on the same and that the digital frequency signals would be strong enough and fairly distributed.

That consumers have until September 30 to acquire STBs (which they may no longer need or may secure at much lower costs now that the Free-To-Air (FTA) channels will have their own broadcast signal distribution licence) is indeed a big win for consumers.

Fourth, since the current FTA channels would not go through an entirely independent distributor means that quality will be enhanced and the costs saved in annual subscriptions would be ploughed back to the consumer — either in acquiring the STBs or lower advertising costs.

Fifth, that for a Constitution promulgated on August 27, 2010, it took over four years to actualise the provisions of Articles 33, 34 and 35.  This points to an Executive that preferred a non-independent communications regulator for selfish reasons.

The embarrassment to the “digital” Jubilee Government is because it failed to impress upon the National Assembly to prioritise the requisite legislations in best form envisaged by the Constitution.

The culture of shortcuts, laxity, failure to embrace stakeholder openness and competitiveness in parastatal appointments will continue to haunt the ICT sector if not halted.

The fact that an “illegal” CCK had been allowed to make countless “right” decisions in the “right” manner should not occasion tolerance for what is unacceptable as per the Friday’s ruling.

We must all bite the bullet and right the many wrongs. It cannot be business as usual of “let’s forget and move on” in terms of regulating a very promising communications sector.