The Law Society of Kenya (LSK) has moved to court to challenge the government's decision not to run its adverts in three national newspapers.
The Kenya Kwanza government has instructed state agencies not to advertise in the newspapers a move some see as a bid to monopolize information.
Kenya Kwanza decided to deny The Standard Group PLC (SG), Nation Media Group (NMG) and People Daily a contract to run My.Gov pull-out.
Instead, it settled for The Star newspaper, in a contract issued to Convergence Africa Media Limited.
In court, the Eric Theuri-led LSK argued that the problem with The Star is that it only circulates in Nairobi.
In documents seen by The Standard on Saturday, LSK argued the government is not only denying Kenyans access to crucial information on jobs and government tenders, but it is also stifling their participation in decisions that require scrutiny and their contribution.
"Because of restriction now imposed in the publication, printing and distribution of My.Gov publication, many Kenyans and consumers of government information who reside outside Nairobi run the real risk of losing out on crucial information which is published on My.Gov publication pull out," said LSK lawyer Peter Wanjiku.
Wanjiku told High Court judge Chacha Mwita that on February 8, 2017, the then head of public service Joseph Kinyua communicated to all PSs that the Cabinet had decided to establish its paper dubbed My.Gov.
In the memo, all autonomous and semi-autonomous state agencies are to place their advertisement through the paper which is run by the Government Advertising Agency (GAA).
The court heard that the government then started running the pullout through the four daily newspapers. This lasted until December last year when Kenya Kwanza ordered that My.Gov would be supplied through competitive bidding.
The court heard that the Ministry of Information, Communication and Technology then gave orders that no agency of government would advertise outside the exclusive deal.
He argued that both My.Gov and the GAA are not established under any law or in the Constitution.
On the flip side, he said, access to government information is a right that is ratified by regulation requiring that the government pass information through newspapers that have a countrywide reach.
LSK sued the Attorney General, the National Treasury and Economic Planning Cabinet Secretary, the Principal Secretary in the Ministry of ICT, Innovation and Youth Services (State Department of Broadcasting and Communications), Convergence Africa and The Star Publications Limited.
In her supporting affidavit, LSK CEO Florence Muturi stated that the decision to restrict government advertisement and the formation of GAA and My.Gov was never subjected to public participation and stakeholder engagement.
She said the government's move is shrouded by mischief as it also never sought to have it subjected to the national legislation process.
"The establishment of GAA under Treasury circular no. 09/2013 and the subsequent establishment and launch of My.Gov through a memorandum issued on February 8, 2017, and the decision to exclusively award the four and fifth respondents the contract of advertising services to The Star newspaper therefore making them the sole printers and distribution of My.Gov are illegal and unconstitutional," said Muturi.
LSK is of the view that the decision to limit the circulation of government information has major ramifications that ought to have been discussed by among others, the general public.
LSK expressed concern that the current regime is out to muzzle the freedom of the media through public procurement.
"The impugned actions ought to have been, but were not subjected to public participation so that the key stakeholders could be given adequate notice and opportunity to participate in its consideration meaningfully and qualitatively as the effect of many key stakeholders, job seekers and the people of Kenya would be adversely affected," argued Wanjiku.
It accused the AG of failing to tell the Cabinet that the decision to form GAA and My.Gov was unconstitutional and illegal.
It claimed that the AG failed to tell the CSs that a decision to restrict My.Gov to The Star only violated the right to information. "Granting only one newspaper the exclusive right to publish information emanating from the government does not serve citizens right to get this information most easily and the most widely published medium," argued LSK.
In the meantime, the society also said that at least 31 Acts of Parliament require information of general importance to be publicized in two newspapers of nationwide circulation. It was of the view that none of the laws have been reviewed or repealed to accommodate the new arrangement.
"By awarding the fourth and fifth respondent (Convergence and The Star) the exclusive contract to print and distribute the My.Gov publication in the country, when The Star is not a newspaper of nationwide circulation, the third respondent (PS) is in breach of the provisions of Article 227 of the constitution and section 96 of the Public Procurement and Disposal Act, 2015 and a myriad of other legislations," said Wanjiku.
Article 227 provides that procurement of government services or goods should be done in a fair, reasonable, transparent and cost-effective manner.
On the other hand, the Public Procurement and Asset Disposal Act, of 2015 prescribes a framework on how government services and goods are procured. According to the lawyer, media stakeholders had tried to reason out with the PS but their quest hit a dead end as he allegedly turned a deaf ear to them, a move Wanjiku termed as arbitrary.
"There is a real and present danger that the public will suffer greatly by the arbitrary actions by the second and third respondents, and the implementation thereof by the fourth and the fifth respondents and their constitutional rights as highlighted herein will continue to be infringed and or threatened," she said.
LSK wants the court to declare that the establishment of GAA is unconstitutional. It is also seeking an order to find that the decision to create My.Gov contravened Articles 10, 27, 47 and 201.
LSK is also asking the court to find that the decision to restrict My.Gov circulation to the Star Newspaper is against a requirement to have government information circulated in two newspapers of nationwide circulation. Further, it wants the court to declare the January 23, 2024 directive to be null and void.
The society also wants the court to bar Convergence Africa Media and The Star Publication Limited from either publishing or printing My.Gov as a pullout of The Star newspaper.
National government remains the single largest source of revenue for news organisations in Africa. In Rwanda, 85 to 90 per cent of advertising revenue comes from the public sector. However, since 2013 when the Jubilee coalition took over, revenue from advertising in mainstream media has shrunk from nearly 50 per cent and now almost zero per cent.
GAA was seen and is seen as a way of taming media's watchdog role amid heightened tension between the media and government.
The move cost the media approximately Sh2 billion in advertising revenue forcing mainstream media houses to think of new revenue raising measures.
President William Ruto's government is however not the first to have an acrimonious relationship with the media, according to history.
Over the years, governments have employed various tactics to try to control the media as was the case in 2018, when the state cut off transmission from some of the country's private TV stations including Citizen TV, Inooro TV, NTV, and KTN in an attempt to stop them from airing live the swearing-in ceremony of the opposition leader Raila Odinga as the "people's president."
