Kenyans get more time to make digital move

Standard group CEO Sam Sholei (right) with his Nation group counterpart Linus Gitahi at the Supreme Court.[PHOTO;FIDELIS KABUNYI/STANDARD]

Kenya: Chief Justice Willy Mutunga faulted the technical approach taken by the three main media houses – The Standard Group (KTN), Nation Media Group (NTV) and Royal Media Services (Citizen) - especially in the way they picked issues before the High Court and later the Appellate Bench, they were united in their view that the Communication Authority of Kenya (formerly CCK) should have been more sensitive to the interests of the general population.

They argued that the airwaves are a public resource and their management in the transition from the limited analogue technology to the boundless digital era should have factored issues such as protection of local investments, public involvement, inclusiveness, equity and non-discrimination against some actors.

“CCK (Communication Commission of Kenya which is a predecessor of CAK) was operating as if the Constitution did not exist,’’ said Dr Mutunga in his closing remarks as the authority was ordered to reopen the process and consult at every stage with all the parties to the suit.

“The interests of the country are bigger than those represented here,’’ said Mutunga as he cautioned the parties the court will keep an eye on the reopened process to ensure there is dialogue. “Kenyans, who are not fond of dialogue, will have to do so... after 90 days please do not come here and tell us that you couldn’t dialogue.”

He drew the attention of the parties to the fact that they have a date with his court, after the 90-day period, to deposit the agreements reached and progress made with the registry through CAK.

He also warned that the new time-lines for expansion of platform providers and reaching consensus on thorny issues that have jolted the transitional pace from analogue to digital broadcast must not be let to undermine the global migration deadline of 2015.

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Top media executives from the three houses - Mr Sam Shollei (Standard Group), Mr SK Macharia (chairman of Royal Media Services) and Mr Linus Gitahi (Nation Media Group) - sat through the reading of the judgement in turns by all the court’s judges. They later welcomed the ruling and declared they would obey it and engage in the dialogue recommended.

Similar sentiments came from Information and Communication Technology Cabinet Secretary Fred Matiang’i who also pledged cooperation between the State and the media industry operators.

The ruling giving the CAK 90 days to reconsider its decision to deny the three media houses Broadcast Signal Distribution (BSD) licences was the climax of a protracted legal fight that went up to the highest court in the land.

The Supreme Court however set aside orders issued by the Court of Appeal which had ordered CAK to automatically issue the media houses with the licences.

In the 200-page verdict, the judges directed the authority to ensure the tender awarded Pan Africa Network Group’s (Pang) was aligned with the statutory and constitutional provisions.

MEDIA FREEDOM

The judges also directed CAK, media houses and other parties in the suit to negotiate and set time-lines for the digital migration before the stipulated shut-down of analogue transmission slated for next year.

The Court also set aside the Court of Appeal’s decision to order an independent regulator to issue a BSD licence to the National Signal Networks without going through the procurement procedures.

The judges again ordered CAK to consider the merits of the application for a BSD licence by national signal networks within 90 days from the date of the Judgement.

The bench unanimously agreed that media freedom was the foundation of any modern democracy, saying that was the aspiration of Kenyans when they enacted the Constitution in 2010.

They also unanimously agreed that the Communication Authority had failed to observe the Constitution on the country’s national values when it went ahead to award the tender in total disregard of the enormous public interest in the tender.

“In awarding the tender, CAK acted as if the Constitution did not exist. The tender was not a normal procurement of goods and service. In reaching its decision it should have been informed by the Constitution,” ruled the CJ.

The Supreme Court also issued proposals to the National Assembly to come up with legislation that would ensure safe disposal of analogue equipment as the country moves to the digital era.

Judges Mutunga, Deputy Chief Justice Kalpana Rawal, Philip Tunoi, Mohamed Ibrahim, Jackton Ojwang, Smokin Wanjala and Njoki Ndung’u also proposed to Parliament to come up with legislation on requisite infrastructure for moving from analogue to digital platform.

“In the proposal Parliament should consider environmental factors that should guide signal distributors in complying with Article 10(2)(d) of the Constitution. It should come up with legislation for sustainable development, which is one of the national values and principles of governance which enshrine the right to a clean and healthy environment,” they said.

The Court also recommended CAK to ensure the sale of Set-Top Boxes (STBs), which are gadgets required by Kenyans to watch the programmes transmitted digitally, is open to competition. “In this vein, the court further recommended that the CAK consider requiring the BSD licensees to subsidise the cost of the STBs,” the verdict read in part.

HAVE STAKE

The Supreme Court also proposed to the CAK to realign its operations with Article 10 of the Constitution.

The Article states, that “the national values and principles of governance in this Article (10) bind all State organs, State officers, public officers and all persons whenever any of them... applies or interprets this Constitution... enacts, applies or interprets any law; or... makes or implements public policy decisions.”

The judges noted that Kenyans and the local investors had a stake in the decision of the bid and added that CAK was bound to conduct its affairs more keenly in total regard of the national values. The suit was triggered by the country’s decision to move from analogue broadcasting to digital broadcasting.

The Court was also asked to determine whether CCK infringed on the fundamental rights of local media houses, Royal Media Services Limited, Nation Media Group Limited and Standard Group when it denied the latter a BSD licence. A BSD licence empowers a company to digitally transmit programmed content.

The Judges held that the Court of Appeal was not right when it ordered the Government to issue to the three media houses (Standard Group, Nation Media Group and Royal Media Services) with a third licence without going through the tendering process.