By KURIAN MUSA

KENYA: The High Court begins hearing submissions on December 6 on the Government should continue with a planned switch from analogue to digital broadcasting.

On that date, High Court Judge Mumbi Ngugi will also rule on an application by media houses urging the court to suspend the switch that was scheduled for December 13.

Three media houses moved to court though lawyer Issa Mansur on Friday last week to stop the Communications Commission of Kenya (CCK) from switching off their analogue frequencies.

Yesterday, Justice Ngugi allowed two more parties to be enjoined in the application by Standard Group CEO Sam Shollei, Royal Media Service Chairman SK Macharia and Nation Media Group Chief Executive Linus Gitahi.

The Consumer Federation of Kenya (Cofek) and West Media were enjoined in the suit in which the media houses want CCK stopped from effecting the switch-off planned for December 13.

However, there were objections from lawyer Kilonzo Wambua for CCK who argued that Cofek had written a consent letter to the Cabinet Secretary for Information and Communication wanting to negotiate.

But Cofek told the court the ministry had backtracked on the negotiations and so it would press on with the application seeking to suspend the digital migration for the benefit of television viewers in Kenya who still do not have set top boxes.

Cofek will be required to file the documents of meetings they had with Cabinet Secretary Fred Matiang’i that they claim did not yield headway.  West Media was enjoined on grounds their western-Kenya based television station would also be affected if the digital migration is effected by December.

Majority viewership

The media houses told the court the planned switch will affect over 85 per cent of their viewership that still depends on the current analog platform. They are seeking to prevent Signet Kenya Limited, The Star Times Limited, Pan Africa Network Group Kenya Limited and GoTV Kenya Limited who are listed as respondents, from interfering with their programmes. In their case, the media houses argue the licensed signal providers would infringe on their intellectual property if they were allowed to air the programs of their television channels without permission.

Signet and Star Times have been granted digital signal distribution licences by the Ministry of Information and the CCK. The media houses have invested over Sh40 billion in modern equipment and studios and have overtaken the Government owned Kenya Broadcasting Corporation. The media owners also are seeking the Government to supply the set top boxes to all parts of the country to enable the digital migration to take off effectively.

The Attorney General (AG) was also enjoined in the petition as the principal legal advisor to the Government to respond in the matter, and also defend public interest.

The AG did not oppose any move to defend the principles of governance — the rule of law, equity, inclusiveness, human rights, non-discrimination, transparency and accountability.

Communications conference

The transition was mooted at the Regional Radio Communications Conference held in Geneva in 2006 that established the digital terrestrial plan for countries to prepare for the migration.

Participants of the conference set June 17, 2015 as the deadline for transition for Europe, the Middle East, the Former Soviet Republics, Iran and Africa. The court is also expected to rule on the petitioners’ claim that CCK issued a tender in a flawed and uncompetitive process that lacked transparency and accountability.

They say a Chinese firm Pan Africa Group Kenya, the fourth respondent, obtained an additional BSD licence from CCK, but declined to award a licence to the NMG and Royal Media which applied on July 4, 2011 through their National Signal Networks.

They say the Ministry of Information pegged impractical reasons to decline issuing the licenses.