Switch to digital TV can wait five years, says Muite

Paul Muite          PHOTO:COURTESY

By Stephen Makabila                            

A lawyer representing three media houses in an appeal case on digital television migration has indicated there is room for a five-year extension if Kenya fails to meet the June 2015 deadline.

Senior counsel Paul Muite told The Standard on Sunday in an interview that there was no justification for urgency that had been displayed by government. “We can apply for a five-year extension if we do not make it by 2015,” said Muite.

Muite who is among the lawyers representing KTN, NTV and Citizen TV, says they will be seeking to achieve all the 10 prayers and declarations lined up in the petition filed on November 22, 2013.

In a ruling read on behalf of the three-judge bench on December 27, Court of Appeal presiding Judge Kihara Kariuki ordered the Communication Commission of Kenya to stop the transition to digital broadcasting for 45 days until February 6 when an appeal by the media houses will be heard.

“We are fighting to check media censureship by the government, and avoid a situation where the heavy infrastructural investment by these media houses running into millions of shillings go to waste because of being denied broadcast licences,” says Muite.

Precedent setting

He adds that in other countries, media houses had been allowed to progressively implement digital alongside analog broadcast to give a chance to the public acquire set boxes and weigh matters of quality.

“What should be happening is for the government to subsidise the cost of the set boxes. By November last year, there were only 26,000 set boxes in the country, all for pay TVs,” said Muite.

 “The petitioners invite the court to compare the digital migration in other countries like the US where the government gave out two free set-top boxes to 22 million qualifying households to support the migration process and its success while ensuring that its citizens were not disenfranchised by the switch over.”

In South Africa, Muite says the government also developed a Scheme for Ownership Support (SOS) in December 2012 to support poor families that are unable to afford STB’s. The scheme took into consideration factors such as the living standards and income threshold of the consumers.

Technological transition

In the appeal case to be heard on February 6, the petitioners are seeking that their rights as broadcasters under Articles 33 and 34 of the Constitution have been infringed and threatened.

Political analyst and Communication consulant Tony Gachoka says the petition by the three media houses is one of the most significant challenges facing the Judiciary since the Supreme Court decision on the 2013 presidential petition. “The court will be considering weighty constitutional, legal and administrative issues whose findings are destined to affect millions of viewers and media broadcasting as we know it in Kenya. Key among the matters in court is when, how and who shall control distribution of signal and content,” he said.

Gachoka   pointed out that as  the final arbiter between parties, the court will be setting a precedent on important matters touching on the public interest as balanced against what may be perceived to be commercial interests.

“This is also a major step towards interpretation of the 2010 constitution and the decision of the court will be studied by legal scholars for years to come. As a journalist and commentator who’s fidelity is to the law and the sanctity of the constitution, suffice it to say that “the arch of history may be long but it always bends towards justice” added Gachoka.

From inception, the petitioners and all other licenced television broadcasters have been operating analogue free to air terrestrial broadcasting services. However, a technological transition was mooted at the Regional Radio Communications Conference held in Geneva in 2006, which established the digital terrestrial broadcasting plan that required that countries start preparation to migrate from analogue to digital terrestrial broadcasting technologies.