Lawyers and journalists have dragged Edward Kisiang'ani, the Principal Secretary, State Department for Broadcasting and Telecommunications, to court for monopolising government advertisements.
The Law Society of Kenya (LSK), Kenya Editors Guild (KEG) and Kenya Union of Journalists (KUJ) have asked the High Court to quash the PS's decision.
The PS directed that all government advertising in television be exclusively done by Kenya Broadcasting Commission (KBC). However, LSK, KEG and KUJ argue that the directive is wrong and flouted the law on government's information.
According to the three lobbies, Kisiang'ani also ignored Kenya's free market policy. "The impugned action taken by the second respondent is a complete departure from constitutional and statutory provisions and industry norms that accord and ensure that crucial Government information is not only published but also publicised, circulated and disseminated as widely and broadly as possible in compliance with Article 35 of the Constitution," court papers filed on Thursday, read in part.
Article 35 guarantees every citizen the right of access to information held by the state and requires the state to not only publish but also publicise any important information affecting the nation. The court heard that Kisiang'ani's actions amount to killing independent media.
In addition, the court heard, the PS's actions amount to controlling media houses that are getting the adverts to sing the tune to Kenya Kwanza regime's propaganda.
He is also accused of ignoring the fact that majority of Kenyans do not watch KBC, hence, will be left out of critical information affecting them. "The Petitioners contend that by limiting public sector advertising to the 3rd Respondent, the 2nd Respondent violated the provisions of Article 34 (3) (b) and (4) which requires broadcasting and other media to be free and independent of control by government, political or other commercial interest, and for media to be free to determine independently their editorial content and should be impartial," the lobbies argued.
This is the second time Kisiang'ani is finding himself in court over draconian and controversial decisions touching on the media industry. He first limited supply of My-Gov to The Star newspaper, which was challenged in court.
Kisiang'ani decided to deny The Standard Group PLC (SG), Nation Media Group (NMG) and People Daily a contract to run My.Gov pull-out.
In court, the Eric Theuri-led LSK argued that The Star only circulates in Nairobi. 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 be supplied through competitive bidding.
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.
He said access to government information is a right ratified by regulation requiring that the government pass information through newspapers that have a countrywide reach.
LSK sued the Attorney General, the Treasury 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 said 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. Article 227 provides that procurement of government services or goods should be done in a fair, reasonable, transparent and cost-effective manner.
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, KEG and KUJ want court to declare that the establishment of GAA is unconstitutional.
