ANALYSIS OF THE SUPREME COURT’S JUDGEMENT ON THE CASE OF DIGITAL MIGRATION
Maritim Kipngetich
Background of the case
On 22nd November, 2013 Royal Media Services, Nation Media Services and Standard Media Services filed a case at the High Court seeking an order compelling the Communication Commission of Kenya (CCK) to issue them with Broadcasting Signal Distribution (BSD) licenses and frequencies and an order preventing the CCK from switching off their analogue frequencies, broadcasting spectrums and broadcasting services pending the issuance of BSD license, but the Judge dismissed the petition saying that it was costly.
The outcome of the case filed by the three giant media houses in Kenya was the petitioners were not allowed to be issued with BSD licenses because of their status or legitimacy on their part.
Also, they were not allowed because the implementation of the digital migration was not a violation of the petitioners’ fundamental rights and freedoms.
Finally, the court held that the petitioners had not established that their intellectual property rights had been infringed.
The media houses never accepted the decision of the High Court and they made an appeal at the Court of Appeal.
On 28th March, 2014 the Court of Appeal delivered a concurring judgment different from the one which was declared at the High Court.
The Court of Appeal ruled that CCK was not the independent body contemplated by Article 34 of the constitution and it had no mandate to issue BSD licenses.
An appeal at the Supreme Court
The three media houses filed an appeal at the Supreme of Kenya where judges made their ruling in on 11th April, 2014 that Signet Kenya Limited, Star Times Media Limited, Pan African Network Group Kenya Limited and GOtv Kenya Limited are prohibited from broadcasting any content from the three media houses without their consent pending the hearing and determination of the intended appeal.
The Court also ruled that CCK is prohibited from switching off broadcast frequencies, broadcast spectrum and broadcast services pending the hearing and determination of the appeal.
Also the Court also made a ruling that the CCK is not the body envisaged under article 34 (3)(b) of the constitution of Kenya.
A BSD license allows the company to digitally transmit program content to the consumers. In analogue terrestrial television the broadcaster develops content and transmits the content while also maintaining the infrastructure.
In digital terrestrial television the broadcaster only develops the content while the digital distributer in this case the Pan African Network Group and SIGNET, obtains a BSD license to transmit the content developed by the broadcaster.
This case involves a bid the National Signal Network (which normally issue license to three media houses) to obtain a BSD license.
The case however is not restricted to issuing only to the issuing of licenses, but touches on matters of fundamental rights of consumers and hard-fought for freedom.
The case is based on the rights of freedom of expression, media freedom and the right to access information.
The CCK disqualified the National Signal Networks and granted the license to PANG. The National Signal Network appealed to the Public Procurement Appeal Review Board.
The board however, upheld the decision of the CCK and this prompt the National Signal Network to move to the High Court to seek relief.
The high court held that the National Signal Network was not entitled to a BSD license merely because they ere established media houses with substantial investments in broadcasting equipment over the years.
The court also held that the implementation of the digital migration did not violate their fundamental rights and freedoms. The National Signal Network was however not satisfied and they made an appeal at the Court of Appeal.
This is the court where National Signal Network got some relief since the Court of Appeal ruled that the National Signal Network had invested much in the broadcast industry and therefore it had a right to be issued with BSD license.
On the above court of appeal ordered that independent regulator should grant National Signal Network a BSD license and revoke the BSD license issued to PANG. It is against this judgment that the PANG file an appeal in the Supreme Court.
The main issue before the supreme court is that the body that makes decisions about granting of BSD license must be independent as it is envisaged under article 34 (3) (b) of the constitution. The requirement of the body to be independent is important to ensure that licensing procedures are not under influence of the government, political or commercial interest.
The Independence of the body envisaged under article 34 of the constitution is vital in that it shields against influence from the external forces.
The National Signal Network argued that the CCK was not independent as its leadership is composed of government appointees.
The court therefore considered article 34 (3) of the constitution which guarantees the freedom of establishment of broadcasting and other electronic media, but subject to licensing procedures that are necessary to regulate the airwaves and other forms of signal distribution.
The court concluded that CCK was legally mandated to issue the BSD license even after the promulgation of the 2010 constitution.
CCK’S decision not to include the Royal Media Services and Nation Media Group Limited on the technicality was not in the line with the values of the constitution.
Another issue which was raised before the court was the matter of legitimate expectation. The National Signal Network argued that they had not been promised the BSD license in both the ICT Policy of 2006 adopted by the Permanent Secretary in the ministry Information and Communication in speech he gave at the media gathering.
The court rejected the argument saying granting of licenses is a function vested in CCK by law. The court found out that the license can only be allocated through the legal provisions that guide such a process and cannot be the result of a promise made by an official who does not have statutory powers.
The court also considered the argument that as National Signal Networks decided not exercise its rights to appeal against the Tribunal’s decision to the high court, the decision of the tribunal became final.
The underlying principle is that judicial and administrative decision is to be treated as final as it enhances fairness, uphold the integrity of the courts and the administration of justice.
The emphasized the provisions of Article 10 of the constitution which lays out the national values and principles of governance which are binding in the interpretation and application of the constitution and in the making and implementing of public policy decisions.
The court stated that the sustainable development requires the Communication Authority of Kenya (CAK) to balance ten public sectors, the local private sectors and the international sector interests when considering applications for BSD licenses.
The court also declares that the interests of local investors in the broadcast industry should neither be ignored nor be dismissed out of hand. The recognition of local private sector investment and indigenous commercial interests also encourages competition, plurality of players and stimulates economic growth within the domestic sphere, all to the benefit of the ordinary consumer.
The court noted with concern that though SIGNET, a subsidiary of Kenya broadcasting cooperation was granted BSD license based on KBC’s role as the public broadcaster, SIGNET has yielded its licensed operations as private corporate entities a decision that defeats the public interest considerations upon which SIGNET was founded.
The court then urges the CAK to consult with government about this question. The court reiterated the responsibility of state organizations to protect our national interests. Also SIGNET must meet its public obligation to remain to be a public broadcaster.
Although CAK deployed the procurement procedure in the Public Procurement and Disposal Act, in granting the a BSD license to Star Times Media Limited and denying the same to Royal Media Services, the Nation Media Group Limited and the Standard Media Group Limited. The court therefore dismiss the move decision it made by the CAK to grant BSD to one media house by saying it was not an ordinary procurement of goods and services.
The court declares that the decision by CAK to license the three media houses appeared not to have been informed by the imperatives of the values of the constitution in as it is stated in Article 10.
Deputy Chief Justice gave an opinion that emphasized the importance of the elevation of judicial review of the constitutional level. She held that administrative function under Article 34 (3) is an administrative action that should adhere to the prerequisites off Article 47.
The court issued proposals and orders which include recommending that parliament consider environmental factors that should guide signal distribution in compliance with Article 10 (2)(d) of the constitution_ sustainable development which is one of the national values and principles of governance and article 42 of the constitution which envisaged the right to a clean and healthy environment.
The court also decided that it would urge the CAK to ensure that sale of Set Top Boxes (STB) is open to completion to avoid creating monopoly and duopoly. The highest court on the land also declares that, the center of sale of STB should be at the interest of the consumer.
STB will allow the consumers to watch the digital program.
The court also recommended that the CAK should consider requiring the CAK to ensure that BSD licence issued to PANG meets the constitutional and statutory mandate.
The court ordered that the Court of Appeal’s directive to independent regulator to issue a BSD licences to Nation Media Group, the Royal Media Services and the Standard Media Group be set aside.
The CAK was ordered to ensure that the BSD licence issued to Star Times Media Limited is aligned to constitutional and statutory mandate.
The Supreme Court also ordered CAK to consider the merits of the application for BSD licence by National Signal Network within 90 days from the date of the judgment.
The Court also ruled that the 30th September, switch off date, should remain valid pending the hearing and determination of the appeal.
Maritim Kipngetich
Background of the case
On 22nd November, 2013 Royal Media Services, Nation Media Services and Standard Media Services filed a case at the High Court seeking an order compelling the Communication Commission of Kenya (CCK) to issue them with Broadcasting Signal Distribution (BSD) licenses and frequencies and an order preventing the CCK from switching off their analogue frequencies, broadcasting spectrums and broadcasting services pending the issuance of BSD license, but the Judge dismissed the petition saying that it was costly.
The outcome of the case filed by the three giant media houses in Kenya was the petitioners were not allowed to be issued with BSD licenses because of their status or legitimacy on their part.
Also, they were not allowed because the implementation of the digital migration was not a violation of the petitioners’ fundamental rights and freedoms.
Finally, the court held that the petitioners had not established that their intellectual property rights had been infringed.
The media houses never accepted the decision of the High Court and they made an appeal at the Court of Appeal.
On 28th March, 2014 the Court of Appeal delivered a concurring judgment different from the one which was declared at the High Court.
The Court of Appeal ruled that CCK was not the independent body contemplated by Article 34 of the constitution and it had no mandate to issue BSD licenses.
An appeal at the Supreme Court
The three media houses filed an appeal at the Supreme of Kenya where judges made their ruling in on 11th April, 2014 that Signet Kenya Limited, Star Times Media Limited, Pan African Network Group Kenya Limited and GOtv Kenya Limited are prohibited from broadcasting any content from the three media houses without their consent pending the hearing and determination of the intended appeal.
The Court also ruled that CCK is prohibited from switching off broadcast frequencies, broadcast spectrum and broadcast services pending the hearing and determination of the appeal.
Also the Court also made a ruling that the CCK is not the body envisaged under article 34 (3)(b) of the constitution of Kenya.
A BSD license allows the company to digitally transmit program content to the consumers. In analogue terrestrial television the broadcaster develops content and transmits the content while also maintaining the infrastructure.
In digital terrestrial television the broadcaster only develops the content while the digital distributer in this case the Pan African Network Group and SIGNET, obtains a BSD license to transmit the content developed by the broadcaster.
This case involves a bid the National Signal Network (which normally issue license to three media houses) to obtain a BSD license.
The case however is not restricted to issuing only to the issuing of licenses, but touches on matters of fundamental rights of consumers and hard-fought for freedom.
The case is based on the rights of freedom of expression, media freedom and the right to access information.
The CCK disqualified the National Signal Networks and granted the license to PANG. The National Signal Network appealed to the Public Procurement Appeal Review Board.
The board however, upheld the decision of the CCK and this prompt the National Signal Network to move to the High Court to seek relief.
The high court held that the National Signal Network was not entitled to a BSD license merely because they ere established media houses with substantial investments in broadcasting equipment over the years.
The court also held that the implementation of the digital migration did not violate their fundamental rights and freedoms. The National Signal Network was however not satisfied and they made an appeal at the Court of Appeal.
This is the court where National Signal Network got some relief since the Court of Appeal ruled that the National Signal Network had invested much in the broadcast industry and therefore it had a right to be issued with BSD license.
On the above court of appeal ordered that independent regulator should grant National Signal Network a BSD license and revoke the BSD license issued to PANG. It is against this judgment that the PANG file an appeal in the Supreme Court.
The main issue before the supreme court is that the body that makes decisions about granting of BSD license must be independent as it is envisaged under article 34 (3) (b) of the constitution. The requirement of the body to be independent is important to ensure that licensing procedures are not under influence of the government, political or commercial interest.
The Independence of the body envisaged under article 34 of the constitution is vital in that it shields against influence from the external forces.
The National Signal Network argued that the CCK was not independent as its leadership is composed of government appointees.
The court therefore considered article 34 (3) of the constitution which guarantees the freedom of establishment of broadcasting and other electronic media, but subject to licensing procedures that are necessary to regulate the airwaves and other forms of signal distribution.
The court concluded that CCK was legally mandated to issue the BSD license even after the promulgation of the 2010 constitution.
CCK’S decision not to include the Royal Media Services and Nation Media Group Limited on the technicality was not in the line with the values of the constitution.
Another issue which was raised before the court was the matter of legitimate expectation. The National Signal Network argued that they had not been promised the BSD license in both the ICT Policy of 2006 adopted by the Permanent Secretary in the ministry Information and Communication in speech he gave at the media gathering.
The court rejected the argument saying granting of licenses is a function vested in CCK by law. The court found out that the license can only be allocated through the legal provisions that guide such a process and cannot be the result of a promise made by an official who does not have statutory powers.
The court also considered the argument that as National Signal Networks decided not exercise its rights to appeal against the Tribunal’s decision to the high court, the decision of the tribunal became final.
The underlying principle is that judicial and administrative decision is to be treated as final as it enhances fairness, uphold the integrity of the courts and the administration of justice.
The emphasized the provisions of Article 10 of the constitution which lays out the national values and principles of governance which are binding in the interpretation and application of the constitution and in the making and implementing of public policy decisions.
The court stated that the sustainable development requires the Communication Authority of Kenya (CAK) to balance ten public sectors, the local private sectors and the international sector interests when considering applications for BSD licenses.
The court also declares that the interests of local investors in the broadcast industry should neither be ignored nor be dismissed out of hand. The recognition of local private sector investment and indigenous commercial interests also encourages competition, plurality of players and stimulates economic growth within the domestic sphere, all to the benefit of the ordinary consumer.
The court noted with concern that though SIGNET, a subsidiary of Kenya broadcasting cooperation was granted BSD license based on KBC’s role as the public broadcaster, SIGNET has yielded its licensed operations as private corporate entities a decision that defeats the public interest considerations upon which SIGNET was founded.
The court then urges the CAK to consult with government about this question. The court reiterated the responsibility of state organizations to protect our national interests. Also SIGNET must meet its public obligation to remain to be a public broadcaster.
Although CAK deployed the procurement procedure in the Public Procurement and Disposal Act, in granting the a BSD license to Star Times Media Limited and denying the same to Royal Media Services, the Nation Media Group Limited and the Standard Media Group Limited. The court therefore dismiss the move decision it made by the CAK to grant BSD to one media house by saying it was not an ordinary procurement of goods and services.
The court declares that the decision by CAK to license the three media houses appeared not to have been informed by the imperatives of the values of the constitution in as it is stated in Article 10.
Deputy Chief Justice gave an opinion that emphasized the importance of the elevation of judicial review of the constitutional level. She held that administrative function under Article 34 (3) is an administrative action that should adhere to the prerequisites off Article 47.
The court issued proposals and orders which include recommending that parliament consider environmental factors that should guide signal distribution in compliance with Article 10 (2)(d) of the constitution_ sustainable development which is one of the national values and principles of governance and article 42 of the constitution which envisaged the right to a clean and healthy environment.
The court also decided that it would urge the CAK to ensure that sale of Set Top Boxes (STB) is open to completion to avoid creating monopoly and duopoly. The highest court on the land also declares that, the center of sale of STB should be at the interest of the consumer.
STB will allow the consumers to watch the digital program.
The court also recommended that the CAK should consider requiring the CAK to ensure that BSD licence issued to PANG meets the constitutional and statutory mandate.
The court ordered that the Court of Appeal’s directive to independent regulator to issue a BSD licences to Nation Media Group, the Royal Media Services and the Standard Media Group be set aside.
The CAK was ordered to ensure that the BSD licence issued to Star Times Media Limited is aligned to constitutional and statutory mandate.
The Supreme Court also ordered CAK to consider the merits of the application for BSD licence by National Signal Network within 90 days from the date of the judgment.
The Court also ruled that the 30th September, switch off date, should remain valid pending the hearing and determination of the appeal.
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