|Lawyers Paul Muite, Philip Murgo and James Orengo at the Milimani Law Courts, yesterday. [PHOTO: FIDELIS KABUNYI/STANDARD]|
By KURIAN MUSA
The High Court has suspended the Kenya Information and Communication Amendment (KICA) law as well as the Media Council Act 2013 from taking effect until the petition filed by the media fraternity is fully heard and determined.
Judge Mumbi Ngugi made the decision at Milimani Law courts yesterday. In her ruling, the judge stated that issuance of conservatory orders is not an injunction like in civil proceedings and that the court can give conservatory orders to protect the Constitution from being violated.
“The constitutionality of the KICA and the Media Council Act 2013 has been challenged,” the judge said.
The petitioners have challenged the recruitment of media council members and formation of the multi-media appeals tribunal by Information Cabinet Secretary, arguing that the move is unconstitutional.
They sought conservatory orders against the two new laws, submitting that they are inconsistent with article 34 of the Constitution, which guarantees the freedom of journalists. Senior counsels Paul Muite and James Orengo, representing the media fraternity in the case, made their submissions last week that journalists would not work freely under the heavy penalties prescribed under the new media laws. “In fact the press will be working in fear and intimidation of the heavy penalties,” submitted Muite.
In her ruling, Justice Ngugi took note of the submission that the Media Council was in place and that the intended reconstitution of the body was ill-timed.
The judge also took note of the submission by the state counsel that the orders sought by the media fraternity would stall other processes that the Cabinet Secretary would seek to implement under the same law.
Trampled on rights
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“The KICA and Media Council laws were not all about media freedom,” the state counsels said in their submission, adding that the media needed to be regulated as it also trampled on other civil rights.
However, Justice Mumbi ruled that: “The role of the media in society cannot be downplayed. Striking a balance is what is before me for determination. There would be no prejudice to be suffered by the respondents if I issue the conservatory orders.”
She then issued the conservatory orders restraining Cabinet Secretary Fred Matiang’i from implementing gazette Notices No. 186 and 187 until the hearing and determination of the petition is fully heard.
She directed the applicants to serve the respondents with their suit papers within seven days and the respondents to make their responses therein. She also referred the matter to Chief Justice Willy Mutunga to convene a three-judge bench to hear the case.
She said the issues raised in the petition are of national importance, touching on the bill of rights and freedom of the media and therefore require the interpretation of more than one judge.
Editor’s Guild vice chairman David Ohito welcomed the ruling and expressed confidence that the court would conclude the matter on a priority basis. Interested parties like the Federation of Kenyan Consumers, represented by Henry Kurauka, were directed to make formal applications to be heard once a three-judge bench has been constituted.