Reprieve for viewers as court orders retention of analogue TV signal

Reprieve for viewers as court orders retention of analogue TV signal.

By KURIAN MUSA

Kenya: Television viewers yesterday got 45 days reprieve after the Court of Appeal ordered retention of the analogue TV signal in the long drawn out battle to migrate to digital platform.

The injunction was granted pending the determination of an appeal against High Court ruling last week that gave the state the nod to enforce migration.

The court’s order for a stay of the switchover from analogue to digital signal against the Communications Commission of Kenya (CCK) ended a 16-hour blackout for more than two million analogue TV sets. At midnight on December 26, the analogue TV signal in Nairobi and its environs was switched off.

The court extended the deadline following an application by The Standard Group, the Nation Media Group and Royal Media for stay of execution of the High Court verdict. The three media houses have appealed a ruling by High Court Judge David Majanja, The court extended the deadline following an application by The Standard Group, the Nation Media Group and Royal Media for stay of execution of the High Court verdict. The three media houses have appealed a ruling by High Court Judge David Majanja, who last week dismissed a case by the three seeking a delay in migration.

The Court of Appeal has issued a 45-day injunction for suspension of the execution of the judgment Justice Majanja issued on December 23, which culminated in the switch-off of the three mainstream television broadcasters in the country. President of the Court of Appeal Justice Kihara Kariuki led the three-judge bench (including Alnashir Visram and Hannah Okwengu) in ordering the CCK to allow the three media houses to continue with their analogue television broadcasting.

The media houses have also been engaged in a long-running tussle with the CCK over licensing to distribute their own signal. At present Signet, owned by Kenya Broadcasting Corporation and a Chinese firm Pan Africa Network Group, are the only licensed distributors of the digital signal.

Content control

That in turn has precipitated fears that the state was planning to use the two outlets to control content. The media houses also hold the position that the reluctance by the state to grant them a license to distribute their signals was discriminatory and designed to curtail media freedom.

The set-top-box (STB) decoders are retailing at between Sh2000 and Sh8000, which is far out of reach for most Kenyan households, especially in the midst of festivities and with the schools set to open in a few days.

The ruling was greeted with jubilation, as less than 20 minutes after the court order analogue television sets, which had gone blank following the Thursday midnight migration to digital frequencies platform, were back on air. The stay of execution will remain in force pending full hearing and determination of the appeal against the lower courts’ judgment.

The Standard Group, Royal Media Services and Nation Media Group were granted injunction against the Ministry of Information and Communications Technology and the Communications Commission of Kenya from switching off their analogue signals. The applicants through lawyers Paul Muite and Issa Mansour filed a notice of motion on the grounds that they have an arguable case, which raises fundamental questions of law and fact.

“The intended appeal will be rendered useless and ‘nugatory’ if orders sought are denied,” pleaded Muite, a senior counsel.

Their grounds were supported by an affidavit sworn on behalf of the applicants by Samuel Macharia on December 23, 2013.

Lawyer Issa Mansour observed, “Let no one mislead this honourable court that there are technicalities involved in reversing our signals back on air. If we are granted the orders we shall switch back.” Lawyer Wambua Kilonzo for CCK, told the court that the switch to digital signal platform was a global process that would interfere with other players in neighbouring states like Uganda and Tanzania.

The application arose from the High Court decision on the nature and extent of freedom of the media protected under Article 34 of the Constitution of Kenya.

The three-judge bench’s verdict coincided with issuance of a communiqué following daylong talks on pacification of South Sudan, a major international event that most of the country’s TV viewers were unable to follow.

As a result of the news blackout occasioned by the switch-off, there was little information on the progress of the talks, which have far-reaching implications on Kenya’s territorial integrity, security and economic and political stability in the region. The talks at State House in Nairobi provided a test-run of the effects of unmitigated migration to digital platforms, leaving a big percentage of TV viewers in the dark on major developments.

In their application, the media houses sought a decision from the superior court whether the High Court ruling has made the respondents to violate the freedom in the context of the migration of terrestrial television broadcasting from analogue platform.

“This digital migration only relates to digital terrestrial television transmission,” observed Justice Kihara.

“In our opinion we have formed an opinion that there are grounds for an arguable appeal and such an appeal would be rendered nugatory should we not grant the orders of injunction sought,” the judge ruled.

 He added, “For an applicant to succeed, he must not only show an intended appeal is arguable but also that unless the court grants him an injunction or stay the success of the case of the appeal will be rendered nugatory.”

The appellate judges declined the submissions of the respondents that the application had been overtaken by events since the switch-off had already taken place.

“You deliberately went on to switch off the applicants signal knowing that there was an appeal. They deserve a hearing,” said Justice Alnashir Visram.

In well thought-out circumstances, the judges were of the opinion that the respondents approach on the matter on technicalities was null and void as enshrined in the laws of Kenya.

“It could be fatal to the essence and substance of the judicial process before us, such an approach is contrary to fair administration of justice,” read the part of the court order.

“The order restrains the second and third respondents from switching off the applicants analogue frequencies, broadcasting spectrum and broadcasting services, and if already switched off reinstate,” they said.

The three media houses were directed to file and serve their record of appeal together with their written submissions within seven days of receipt of the proceedings.

The respondents are to file and serve their respective written submissions within seven days of service of the applicants’ submissions