Victory for Kenyans as judges halt rush to digital migration

Television viewers were the biggest winners on Friday when the Appeal court ordered the government to postpone digital broadcast migration by eight months to September.

The ruling, which will allow Kenyans more time to install set-top boxes on their analogue TV sets, was part of a landmark verdict that blocked pay television stations, such as South Africa’s DStv and Zuku, from rebroadcasting local channels without permission.

The judges also scrapped the controversial award of signal distribution licences to China’s Star Times, and ordered a fresh tender process.

And, in another victory for local broadcasters, the court ordered the consortium of Kenyan media — Nation Media Group, the Standard Group and Royal Media — which had sued the government, to be given a signal distribution licence.

The decision deals a blow to the massive investment by Star Times’ mother company, Pan African Network Group, which had hoped to charge local broadcasters millions of shillings for linking them with Kenyan digital television viewers.

They also set the stage for the disbandment of the government-controlled Communications Authority of Kenya, (previously Communications Commission of Kenya) whose composition they declared unconstitutional.

Judges Roselyne Nambuye, David Maraga and Daniel Musinga said they did not understand why the government was hurrying into migration in disregard of the Constitution and broadcast laws.

“The digital migration date is still far ahead as per the set international deadline of June 2015 and it is our view that an additional six months will be adequate for all stake holders to agree on an independent body to issue the digital licences,” ruled the judges.

Massive investment

They unanimously agreed to stop the Information and Communications minister and the Communications Authority of Kenya from switching off analogue television signals until September 30, which they set as the new date.

The judges ruled that the legitimate expectation of the three local stations was violated when Star Times was given the signal distribution licence.

Because of their massive 15-year investment, the media firms were entitled to a licence without going through tender, they said.

“It will be outrageous to reduce to waste the over Sh40 billion they have invested in the industry and it is our view that there should have been exception for them to get the licence.’’

The judges found that the award of the licences by the Communications Authority of Kenya was illegal because it was not independent as required by the Constitution.

“An independent body should therefore give them a licence without going through the tender process provided they comply with the regulations,” Mr Justice Maraga said.

On that issue, however, Justice Musinga dissented.

The judgment was a setback to viewers who had acquired digital set-top boxes from Star Times as the Bench unanimously cancelled the digital broadcast licence issued to them.

“Having found that the CCK was not the right body contemplated under the Constitution to issue the digital licences, we declare that the licence issued to Pan African Network Group is null and void and cancel it forthwith,” ruled the judges.

To save the company from loss, the judges ordered the CCK to refund it all the money it had invested, including the licence application fees it had paid.

The ruling further set the stage for the disbandment of the CCK (currently CAK) as it was not the independent body contemplated by the Constitution.

“We find and uphold that the CCK was not the envisaged body under the Constitution to conduct the digital migration process since it is government controlled.

“Any decision it purported to make in issuing the digital licences is therefore null and void,” Justice Nambuye said.

Justice Maraga added that the government had a duty after the promulgation of the Constitution to alter the composition of the CCK to ensure that it was independent from government, political or commercial interests.

“It is evident the composition of the CCK are appointees of the President and the minister, making it fully government controlled.

Intellectual property

“The government should be in the forefront in upholding what is envisaged in the Constitution, otherwise the decision reached by the body is unlawful,” said Justice Maraga.

Justices Nambuye and Maraga were also in agreement that the CCK had allowed digital pay-television providers to violate the intellectual property rights of the three media houses by rebroadcasting their programmes.

“Everyone has a right to protect their property and the CCK had no right to allow the re-broadcast of the appellants programmes without their consent,’’ they said.

The judges also dismissed argument that the media houses should have appealed against the decision to deny them the digital licences through a judicial review case, ruling that the matter touched on their rights, which justified their filing of a constitutional petition at the High Court.

“The issue of seeking a review for denial of the licences does not apply since the issues touched on the legitimate expectation of the media houses and an extension of the Bill of Rights. The conditions which were set by the minister were unjustifiable, which we nullify,” Justice Nambuye said.

Consumer Federation of Kenya secretary-general Stephen Mutoro  praised the ruling, saying, it was a major win for consumers, operators and other players.

“It vindicates our long-held view that in its current form, the Communication Commission of Kenya is not the regulator envisaged under Article 34(3) of the Constitution. We are grateful that the Media Owners Association have pushed and won the fight we began in December 2012,” he said.

Nation Media Group’s CEO Linus Gitahi said the ruling showed that the rule of  law is supreme.

“The courts have lifted the veil and undone all the things done in the dark. Kenyans are the real winners… but most importantly, the content that media and journalist work so hard to create cannot just be picked by a pay TV without permission,” he said.

His sentiments were shared by  Royal Media managing director Wachira Waruru.

“We are happy with the ruling. But let it be understood from the onset that we were never against digital migration…. all we wanted was fairness in the process. We are happy that the court has agreed with us.”

Lawyers stand to pay their respect to the Supreme Court judges during the ruling on Digital migration on March 28, 2014. The presiding judges ruled that the Analogue will remain till September 2014 and ruled the cancellation of the current digital licenses. Photo/JEFF ANGOTE

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