All that is needed for digital migration to take place in a civilised way is for the Communications Authority of Kenya (CA) to accept that its conceptualisation of broadcasting freedom, which is protected by Article 34 of the Constitution, is wrong and allow NTV, KTN, Citizen and QTV to resume broadcasting pending their importation of set-top boxes.
As it will take time for these media houses to import set-top boxes, Kenyans should not, in the meantime, be condemned to uncivilised life. CA’s wrong action was based on the decision of the Supreme Court in Petition Number 14 of 2014, Communications Commission of Kenya & 5 others v Royal Media Services & 5 others, which was decided in September, 2014. The Supreme Court too got wrong the concept of broadcasting freedom in a democracy.
In addition, the Supreme Court appears to have forgotten that Article 34, like other articles of the Constitution, is designed to transform broadcasting in a society where the Government enjoyed a monopoly until 1999. The transformation agenda of the Constitution was described as follows in Speaker of the Senate & another v Hon. Attorney-General & another & 3 others,  eKLR : Kenya’s Constitution of 2010 is a transformative charter.
Unlike the conventional “liberal” Constitutions of the earlier decades which essentially sought the control and legitimisation of public power, the avowed goal of today’s Constitution is to institute social change and reform, through values such as social justice, equality, devolution, human rights, rule of law, freedom and democracy. This is clear right from the preambular clause which premises the new Constitution.
The switching off of the transmitters on Saturday and the condemning of Kenyans to an uncivilised way of life cannot be justified by a proper understanding of the nature of law in a democratic society of the kind Kenya is aspiring to be. In such democracies, the law is the instrument of protecting the values held dear by the society. CA is behaving like the Pharisees who Jesus had to remind that Sabbath was made for man and not man for the Sabbath.
The authority should accept this truism, concede that it acted in an unwise manner and permit the transmitters of the media houses to operate normally. The authority has contravened Article 10 of the Constitution which binds all state organs. By switching off the transmitters, it breached the national values and principles of governance which include patriotism, democracy, participation of the people, inclusiveness, equality, human rights, non-discrimination, good governance, transparency and accountability.
By switching off the transmitters, the authority purported to serve as the independent authority envisaged by Article 34 of the Constitution which was established to regulate the airwaves and other forms of signal distribution to ensure that broadcasters enjoy freedom of establishment. As I show below, the authority’s composition renders it impossible for it to serve as an independent regulator.
Clearly, by switching off the transmitters, CA did not realise that it was acting against the Kenyan people. Article 1 of the Constitution declares that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with the Constitution. The same article provides that the people may exercise the sovereign power either directly or through their democratically elected representatives. Article 1(3) declares that the sovereign power is delegated to state organs such as CA.
Today, it cannot be said that the decision to condemn people to uncivilised life was done with the consent of the Kenyan people. Even if the authority did not intend it, the effect of the switching off of these transmitters was to compel Kenyans to listen to only what KBC, K24 and the pay TVs are offering. Its decision violates the object of freedom of expression which the European Court of Human Righs described as follows: The court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a “democratic society”.
Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.
Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. This means, amongst other things, that every “formality”, “condition”, “restriction” or “penalty” imposed in this sphere must be proportionate to the legitimate aim pursued.
The authority is enforcing censorship. This is unacceptable in a democratic society.
The Authority is able to enforce that censorship because the Supreme Court, with respect, misinterpreted Article 34 of the Constitution in the media owners case - Petition Number 14 of 2014, Communications Commission of Kenya & 5 others v Royal Media Services & 5 others. It held that, as constituted today, CA is the independent regulator envisaged by Article 34 of the Constitution. As I demonstrate below, it erred. It did not apply the benchmarks applicable to democratic life. According to section 6 (1) of the Kenya Information & Communications (Amendment) Act, 2013, the members of that Authority are:
1. A chairperson appointed by the President who serves in the executive branch of the Government
2. The Principal Secretary for the time being responsible for matters related to broadcast;
3. The principal secretary for the time being responsible for matters relating to finance;
4. The principal secretary for the time being responsible for matters relating to internal security; and
5. Seven persons appointed by the Cabinet Secretary.
By no stretch of imagination can a body constituted by the executive branch of the Government, which does not seek concurrence or the legislature or any other organ, be independent. The CA is not independent. In democracies, broadcasting freedom means freedom from government control just as the Constitution provides. Article 34 (3) provides that broadcasting and other electronic media have freedom of establishment subject only to licensing procedures that are necessary to regulate the airwaves and other forms of signal distribution and are independent of control by government, political interests and commercial interests.
Eric Barendt, in his book titled Broadcasting which discusses broadcasting law of democracies, says this of broadcasting freedom: Whatever else it means, broadcasting freedom surely entails freedom from state or government control. In particular the censorship by government of programmes would appear incompatible with it. ... It is constitutionally proscribed in Germany by Article 5 of the Basic Law, while in the United States the Federal Communications Act does not allow censorship of broadcasting. The principle applies as strongly to public as it does to independent private broadcasting.
The legal consequences of freedom from state control (Staatsfreiheit) have been explored at length in Germany. In its first decision on the structure of broadcasting, the constitutional court emphasised the importance of freedom from state control when it held the foundation by the Federal government of the Deutschland-Fernsehen-GmbH contrary both to the Basic Law’s distribution of powers between federal and state government and to the fundamental principle of broadcasting freedom guaranteed by article 5.
That principle prohibits state control, direct or indirect, of broadcasting authorities or companies (though not some state representation on these bodies). The court found that the new broadcasting institution was to be entirely under federal government control; the guidelines which provided for editorial independence could easily be amended, since they had not been incorporated in a parliamentary statute. Its establishment would, therefore, be incompatible with Article 5.
Clearly the Supreme Court’s interpretation of Article 34 of the Constitution in the media owners case did not benefit from the kind of discussion referred to above. The Supreme Court should overrule that decision at the earliest opportunity that comes to it. In JS Rai & 3 others v TS Rai & 4 others Petition No. 4 of 2012, the court held that it has power to depart from any of its previous decisions which it considered to have been decided wrongly. It stated as follows: (50) For the special role of precedent in the certainty and predictability of the law as it plays out in daily transactions, any departure is to be guided by rules well recognised.
It is a general rule that the court is not bound to follow its previous decision where such decision was an obiter dictum (side remark), or was given per incuriam (through inattention to vital, applicable instruments or authority). A statement obiter dictum is one made on an issue that did not strictly and ordinarily, call for a decision and so it was not vital to the outcome set out in the final decision of the case. And a decision per incuriam is mistaken, as it is not founded on the valid and governing pillars of law.
The alternative which the country has to avoiding switch offs is for Article 34 of the Constitution to be amended to give the criteria of appointing those who will constitute a regulator that is independent of control by government, political interest or commercial interest.
The debate of the actions of CA shows that the authority and the state are yet to resolve four issues. First, there is the question of Government involvement in commercial activity. The Government has become a great competitor in the television industry. Since the late 1980’s the Government has been withdrawing from commercial activities. It now appears to be going back to the policy of government involvement in commercial ventures.
The second issue concerns the equality of arms when that happens. How is a private broadcaster going to compete with a state which has enormous power? The third pertains to the impartiality of the Government. Article 27 of the Constitution mandates that every person be equal before the law and gets equal protection, benefit and protection from the law. The authority has no respect for this constitutional value. It appears to be out to create wealth for some broadcasters or the state.
The fourth issue concerns our relations with those we do business with. Kenyans are beginning to wonder whether our relationship with the Republic of China will be for our benefit or for the benefit of China. The country’s struggle for freedom was designed to ensure that after the British left the country, no nation would tamper with our freedom. The time might have come for Kenyans to review their relations with China, whose companies or company are at the heart of the switch-off.
Mr Kuria is a Senior Counsel