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Title:                                      Royal Media Services Ltd & 2 Others v A.G & 6 Others
Venue:                                   High Court at Nairobi ( Milimani Constitutional & Human Rights                         Division)
Case id:                                 Petition no 557 of 2013
Authoring Judge:                D.S Majanja
Date of Decision:                 23rd December 2013
Petitioners:                             Royal Media Services Ltd
                                              Nation Media Group Ltd
                                              Standard Group Ltd
Respondents:                       Attorney General
                                              The Ministry of Information Communication & Technology
                                              Communications Commission of Kenya
                                              Signet Kenya Ltd
                                              Star Times Media Ltd
                                              Pan African Network Group Kenya Ltd
                                              Go TV Kenya Ltd
Interested Parties:              Consumer Confederation of Kenya ( COFEK)
                                              West Media Ltd

Key words:                        Intellectual Property Rights infringement

Facts
The petitioners filed a petition claiming that the respondents are in violation of the constitutional rights of the public, freedom of expression and freedom of media as described in Article 34 of the constitution  by implementing the process of migration of terrestrial television broadcasting from analogue to digital platform ; digital migration.

Issues
1.    Whether and to what extent the petitioners are entitled to be issued with BSD licences by the  CCK and whether the issue of the licences to other licensees to the exclusion of the petitioners is  a violation of Article 33 and 34 of the Constitution.
2.    Whether implementation of the digital migration constitutes a violation of the petitioners’  fundamental rights and freedoms and if so, whether the process should be stopped, delayed or  varied in order vindicate or ameliorate the petitioner’s fundamental rights.
3.    Whether 4th, 5th, 6th and 7th respondents have breached and or  violated the petitioners’ intellectual property rights.

Holding

As regard the first issue, the court held that The petitioners are not entitled to be issued with BSD licences by the CCK on the basis of their  established status or on the basis of any legitimate expectation. Licensing is subject to statutory  provisions which allow the CCK in exercise of its mandate to make certain considerations and impose  conditions that are necessary for the achievement of the objects and purposes of the Constitution and  the law. The issuing of BSD licence to other licensees to the exclusion of the petitioners as alleged in the  petition is not a violation of Articles 33 and 34 of the Constitution.
In answer to the second issue, the court held that The implementation of the digital migration is not a violation of the petitioners’ fundamental rights and  freedoms and no basis has been made by the petitioner to stop, delay or vary the digital migration  process. The process of migration of the broadcasting platform from analogue to digital was consultative  and participatory and in line with Kenya’s international obligations.
As regards the third issue, the court held that the petitioners have not established that their intellectual property rights were violated by the 4th, 5th, 6th  and 7th respondents.

Case Cited
1.    Central Broadcasting Services Limited v Attorney General [2007] 2 LRC 19,
2.     Benjamin  v Minister of Information and Broadcasting [2001] 4 LRC 272,
3.     Observer Publication v  Mathew and Others [2001] 288
4.    Retrofit v Posts and Telecommunications Corporation  [1996] 4 LRC 489.
5.    Beatrice Wanjiku and Another v Attorney General and Another [2012]eKLR
6.    Royal Media Services  Limited v Attorney General and Others Nairobi Petition No. 346 of 2012
7.    Royal Media  Services Limited v Director of Public Prosecutions Nairobi HC Misc. Appl. No. 43 of 2013
8.    Minister of Health and Other v Treatment Action Campaign and Others, CCT 8/02, [2002]
ZACC 15.
9.    Joel Nyambuto Omwenga and Others v Independent Electoral and  Boundaries Commission and Others [2013]eKLR,
10.     Diana Kethi Kilonzo and Another v  Independent Electoral and Boundaries Commission and Others Nairobi Petition No. 359 of  2013.
11.    Trade  Bank Limited v LZ Engineering Construction Limited [2000] 1 EA 266
12.    Hunter v Chief  Constable of the West Midlands Police and Others [1981]UKHL 13
13.    Peter Njoroge Mwangi and Others v Attorney General and Another Nairobi Petition No. 73
of 2010 (Unreported)
14.    Hon. Chirau Ali Mwakwere v Robert Mabera and Others Nairobi  Petition No. 6 of 2012 (Unreported)
15.    R v National  Environment Management Authority CA Civil Appeal No. 84 of 2010 [2011]eKLR
16.    Olum & Another v Attorney-General of Uganda [2002] 2  EA 508
17.    Dennis Mogambi Mong’are v Attorney General Nairobi  Petition No. 146 of 2011 (Unreported) [2011] eKLR
18.    Trade Bank Ltd  v LZ Engineering Construction Ltd [2001] EA 266, 272
19.    Kenya Transport Association v The  Municipal Council of Mombasa and Another Msa Petition No. 6 of 2011 [2011]eKLR
20.    Wananchi Group (Kenya)  Limited v Communication Commission of Kenya and Another
21.    COFEK v Minister for Information and Communications and Others Nairobi Petition No.  563 of 2013 (Unreported )
22.    In the matter of Interim Independent  Electoral Commission Application No. 2 of 2011 [2011]eKLR
23.    Mumo Matemu v Trusted Society of Human Rights Alliance & 5  others, Civil Appeal No. 290 of 2012 of 2012 [2013] eKLR
24.    Nairobi Metropolitan PSV Saccos United Ltd and Others v County of  Nairobi Government and Others Nairobi Petition No. 486 of 2013 (Unreported)
25.    Sanitam Services (EA) Ltd v Tamia Ltd and Others Nairobi Petition No. 305 of 2012  [2012]eKLR
26.    John Harun Mwau & Others v The Attorney General & Others Nairobi nPetition No. 65 of 2011 (Unreported)

Judgement

Introduction
1. The subject of this decision is the nature and extent of the freedom of the media protected under
Article 34 of the Constitution and whether it has been violated by the respondents in the context  of the migration of terrestrial television broadcasting from analogue to digital platform (hereinafter  “digital migration”). Article 34 of the Constitution provides as follows;
34. (1) Freedom and independence of electronic, print and all other types of media is guaranteed, but
does not extend to any expression specified in Article 33 (2).
(2) The State shall not—
(a) exercise control over or interfere with any person engaged in broadcasting, the production or
circulation of any publication or the dissemination of information by any medium; or
(b) penalise any person for any opinion or view or the content of any broadcast, publication or
dissemination.
(3) Broadcasting and other electronic media have freedom of establishment, subject only to licensing
procedures that—
(a) are necessary to regulate the airwaves and other forms of signal distribution; and
(b) are independent of control by government, political interests or commercial interests.
(4) All State-owned media shall—
(a) be free to determine independently the editorial content of their broadcasts or other communications;
(b) be impartial; and
(c) afford fair opportunity for the presentation of divergent views and dissenting opinions.
(5) Parliament shall enact legislation that provides for the establishment of a body, which shall—
(a) be independent of control by government, political interests or commercial interests;
(b) reflect the interests of all sections of the society; and
(c)    set media standards and regulate and monitor compliance with those standards

2. The petitioners are limited liability companies engaged in the provision of broadcasting and  media services throughout the Republic of Kenya. Collectively they control 85% of the television  coverage in the country.

3. The 2nd respondent is the Ministry charged with the executive mandate of formulating and  implementing policy, together with other entities, with respect to the information, communications
and technology industry. In this judgment it shall be referred to as the Ministry, Minister or  Cabinet Secretary where the context admits.

4. The 3rd respondent, the Communication Commission of Kenya (“the CCK”), is a body corporate
established under the provisions of KICA. It is responsible for implementation of the international
obligations that Kenya has to the International Telecommunication Union (“the ITU”), a  specialized agency of the United Nations in the field of information and communications  technology. Kenya has been a member of ITU since 11th April 1964. Section 5 of the Kenya  Information and Communications Act (Chapter 411A of the Laws of Kenya) (“KICA”)  provides that the CCK, shall in performance of its function take into account, “(a) any policy  guidelines of a general nature relating to the provisions of this Act notified to it by the Minister  and published in the Gazette (b) Kenya’s obligations under any international treaty or agreement  relating to the provisions of telecommunication, radio and postal services.”

5. The 4th and 6th respondents are companies carrying on business in Kenya and have been
granted Broadcast Signal Distribution (“BSD”) licences by the CCK. ?The 5th respondent is the
holder of a temporary licence holder of a Broadcasting Subscription Management Service  Provider. The 7th respondent is a television broadcaster carrying on business in Kenya. The 2nd  interested party is a media company licensed to broadcast by the CCK.

6. The 1st interested party is an organisation whose function is protect, promote and represent
consumer interests.  Petitioners’ Prayers

7. The petitioner’s case can be understood from the prayers sought in the petition dated 22nd  November 2012 in which the petitioners seek the following reliefs;
1. A declaration that the Petitioners' rights as broadcasters under Articles 33 and 34 of the  Constitution have been infringed and threatened with violation by the 2nd and the 3rd  Respondents.
2. A declaration that the Respondents in limiting the Broadcast Signal Distribution licence to five
licensees has violated the freedom of establishment of the media contrary to Article 34 of the
Constitution.
3. A declaration that the Petitioners' right of establishment as television broadcasters protected by
Article 34(3) of the Constitution is violated and rendered meaningless by the failure to issue the
Petitioners with Digital Signal Distribution licenses and Digital frequencies.
4. A declaration that the proposed switch off date of 13th December 2013 is punitive and against
public interest and infringes on the Petitioners' right of establishment as media houses and  broadcasters and will disenfranchise the public's right to receive information.
5. A declaration that analogue and digital broadcasting spectrum can co-exist and the 2nd and the  3rd Respondents are under an obligation to give the public the right to choose until such time that  there are adequate number of universal set top boxes in the country.
6. A declaration that the Petitioners are entitled to be issued with a Broadcast Signal Distribution
license and Digital frequencies by the Government and in default they should continue with the
current analogue broadcasting services.
7. An order compelling the Government through the 1st and the 2nd Respondents to issue the
Petitioners with Digital Broadcast Signal Distribution licenses and Digital frequencies.
8. An Order of injunction restraining the 2nd and the 3rd Respondents from switching off the  Petitioner's analogue frequencies, broadcasting spectrums and broadcasting services on 13th  December 2013 or at all pending the issuance of the Broadcast Signal Distribution licenses and  Digital frequencies to the Petitioners, a reasonable period to roll out digital television  broadcasting services and the supply of universal set top boxes to all consumers with television  sets.
9. An order of permanent injunction restraining the 4th, 5th, 6th and 7th Respondents by themselves,
their licensees and/or agents, from broadcasting, distributing or in any way interfering with the
Petitioners' programs, broadcasts, copyrighted material and productions or in any way infringing
the Petitioners' intellectual property rights.
10. The Respondents to pay the Petitioners costs of the Petition in any event.

Issues for Determination
8. From the prayers cited above, it is apparent that there are three broad claims which the  petitioners seek to be resolved by the court and which are as follows;
a. Whether and to what extent the petitioners are entitled to be issued with BSD licences by the
CCK and whether the issue of the licences to other licensees to the exclusion of the petitioners is
a violation of Article 33 and 34 of the Constitution.
b. Whether implementation of the digital migration constitutes a violation of the petitioners’
fundamental rights and freedoms and if so, whether the process should be stopped, delayed or
varied in order to vindicate or ameliorate the petitioners fundamental rights.
c. Finally, as regards the 4th, 5th, 6th and 7th respondents, whether they have breached and or
violated the petitioners’ intellectual property rights.

9. These issues are to be resolved in the context of the digital migration and it is important to
provide by way of background the process that led to Kenya adopting digital migration. These
facts relating to the digital migration process can be gathered from the various depositions filed
by the respective parties and are uncontested.
Digital Migration; the Facts

10. It is important to note that digital migration occurs within a global context. The process is
implemented through a framework established by the ITU, established by Convention of the
International Telecommunication Union (“ITU Convention’) which Kenya ratified in 1964.
11. The ITU is composed of three sectors, Radio communication (ITU-R), Standardization (ITU-T)
and Development (ITU-D) but for the purposes of the present proceedings, the relevant sector is
ITU-R. It is responsible for planning and allocation of frequency spectrum resources at the global
level. Member states derive and develop their individual national frequency plans from the ITU
framework. ITU-R ensures the compatibility of frequency resources across states thereby  reducing interference in the use of the said resources between and within the said member  states.

12. The ITU-R business is conducted through its various policy organs; the World Radio Communication Conferences, Regional Radio Communication Conferences, the Radio  Regulations Board, Radio Communication Assemblies, Radio Communication Study Groups and  the Radio Communication Advisory Group. For the purposes of allocation and management of  frequencies at the global level, the world is divided into three ITU Regions with the Republic of  Kenya belonging to ITU Region 1 which comprises of Western and Eastern Europe, Africa and  the Middle East.

13. There are three technologies of TV broadcasting; terrestrial, satellite and cable digital platforms
of television broadcasting. Transmission for terrestrial television is currently in either digital or
analogue form and the purpose of the current migration is to ensure that the terrestrial television
is solely on the digital platform. Migration to digital transmission under Regional Radio  Communication Conference, 2006 (“RRC-06”) only relates to digital terrestrial television
transmission and does not affect satellite or cable television transmissions which do not utilize  the VHF and UHF frequency bands.

14. In analogue TV broadcasting, one channel can only broadcast one program and one transmitter
can only broadcast through one frequency range. In the case of analogue, the whole  transmission process is in the hands of the broadcaster who develops the content and rolls out  and maintains the transmission infrastructure including masts, antenna and actual works and  does the actual transmission.

15. On the other hand, digital terrestrial broadcasting platform attracts several players. The signal
distributor is licensed for the sole purpose of transmitting to consumers free to air TV content.
The broadcaster provides the content to the signal distributor to transmit at an agreed fee. The
signal distributor rolls out and maintains the use of infrastructure and only transmits the agreed
content without interference.

16. Prior to the year 2006, the allocation and management of terrestrial television broadcast
frequencies at the global level was governed by international treaties known as Stockholm 1961
and Geneva 1989 VHF/UHF Television Broadcasting Plans for the European and African
Broadcasting Areas, respectively for Bands I, III, IV and V ("Geneva 1989"). Band III refers to
174-230 MHz, while bands IV and V refer to 470-862 MHz on which analogue terrestrial
television broadcasts are presently made. These bands are also known as Very High Frequency
(VHF) and Ultra High Frequency (UHF) respectively. In Kenya, analogue terrestrial television
broadcasting is undertaken by broadcasters on frequencies between the 174-230 MHz band and
470-806 MHz band.

17. Following developments in technology and the need to efficiently utilize scarce frequency
spectrum resources, sometime in the year 2000, some countries in ITU Region 1 and ITU Region
3 desired to introduce digital terrestrial television broadcasting in their respective areas and to
this end requested the ITU to revise and update the Stockholm 1961 and Geneva 1989.
Consequently, Region 1 held its first Regional Radio Communication Conference in 2004
("RRC-04") in Geneva, Switzerland to establish the planning parameters for an all-digital
broadcast environment in Region 1.

18. The result of RRC-04 was that member states agreed on the planning parameters and criteria for
digital terrestrial television broadcasting in Band III and Bands IV/V for Region 1 and parts of ITU
Region 1 situated to the west of Meridian 170oE and to the North of parallel 40oS except the
territory of Mongolia and the Islamic Republic of Iran. RRC-04 also agreed to hold another  Regional Radio communication Conference in the year 2006.

19. After RRC-04, member states agreed to several activities to take place before the next  conference and the subsequent one. These activities included the formulation of regional and  inter-regional working groups and development draft frequency plans by each member state  taking account bilateral and multilateral negotiations carried out by the relevant municipal bodies  of the different member states. Kenya participated in RRC-04 and all intercessional activities.  The Ministry, CCK and other stakeholders in the broadcasting industry were fully involved in the  preparation of the draft national frequency plans prepared by the Government of Kenya for the  subsequent RRC-06.


20. RRC-06 took place in Geneva, Switzerland between May and June 2006. During RRC-06, a
process of rationalizing the various national draft frequency plans presented by the member states took place through meetings held at various levels and sub-levels. The rationalization process included running a number of compatibility analyses of the various draft national frequency plans using super-computers with advanced tailor-made software in order to co- ordinate and make compatible the various member states' draft national frequency plans with a view to reducing frequency interference between and within member states. Planning and  negotiation groups were formed by the member states at various levels and these groups met as  part of the rationalization process and thereafter all member states met at plenary and presented  their agreed/negotiated plans for adoption by plenary. If for any reason compatibility was not  achieved at any level by some or any of the member states, the concerned member states were  required to undertake further negotiation and planning in order to arrive at a consensus and  which process is a give and take one among member states.

21. RRC-06 produced the Final Acts of the Regional Radio Communication Conference for planning
of the digital terrestrial broadcasting service in parts of Region 1 and 3, in the frequency bands  174-230 and 470-862 MHz (RRC-06) ("the Final Acts of RRC-06") as well as associated  Resolutions as contained in these Final Acts.

22. Among other things, RRC-06 agreed on 17th June 2015 as the switch off date for transition from
analogue to digital terrestrial television broadcasting for member states present at RRC-06. In  line with the Final Acts of RRC-06, and in fulfilment of its international obligations, the  Government of Kenya embarked on local preparations to transit terrestrial television broadcasting  from the analogue platform to the digital platform.

23. The Government of Kenya first set a transition deadline date of 1st July 2012 as the switch off
date, in a phased manner, in order to have the flexibility and time to address any difficulties that
would arise before the expiry of the multi-laterally agreed switch off deadline of 17th June 2015.

24. In order to implement the digital migration program locally, the Minister established a task force
known as the Task force on the Migration from Analogue to Digital Broadcasting ("the Migration
Task force "), to give recommendations that would contribute to the development of a national
strategy for the switch over of broadcasting systems from analogue to digital broadcasting. The
mandate of the Task force was to:
a. give recommendations to the government on the required policy and regulatory framework to
address the introduction of digital broadcasting;
b. develop a Kenyan approach for transition to digital broadcasting;
c. establish a transition time frame and a firm programme for analogue switch-off;
d. Give proposals on how Kenyans can adopt digital broadcasting.

25. The Migration Task force gathered views from stakeholders and the members of the public in  general and presented its final Report to the Minister on 4th October 2007 (“the Migration  Task force Report”). The Migration Task force Report recommended that the migration from  analogue to digital broadcasting be undertaken in three phases as follows:
a. Digital switch on: the introduction of digital broadcasting services involving the development of
the digital broadcasting infrastructure including introduction of a signal distributor, availability of
set-top boxes and/or integrated digital receivers.
b. Simulcast Period: In order to ensure that television viewers without set top boxes are not  deprived of services, analogue and digital will have to be broadcast in tandem for some period -  the 'simulcast' period.
c. Analogue Switch-off: Termination of analogue transmission which assumes the completion of the
switchover process, so that it will not occur, before almost all households can receive digital  signals and have digital receivers.

26. The Migration Task force Report proposed the following milestones towards achieving the
foregoing:
Government approval – 30th November 2007
Formation of Digital Migration Board – 1st March 2008
Licensing of signal distributors – 30th August 2008
Switch on of digital and commencement of Simulcast – 30th August 2009 to 30th June 2012
End of simulcast period and switch off date of analogue broadcasting - 1st July 2012

27. In accordance with the 2006 National ICT Sector Policy Guidelines, which outlined the framework
within which national public broadcasting, private broadcasting, community broadcasting and  signal distribution services would be provided, the Migration Task force recommended that Kenya  establishes a common transmission platform for all broadcasting services to optimize usage of  the available resources.
28. The Migration Task force Report made the following recommendations which are germane to this
suit;
i. KBC shall be required to form a separate company to run the signal distribution services in order
to avoid conflict of interests or cross subsidisation.
ii. Interested investors including current broadcasters may be licensed to offer signal distribution
services.
iii. A signal distributor will be required to provide signal distribution services as a common carrier to
broadcasting licensees upon their request on an equitable, reasonable, non-preferential and non-
discriminatory basis.

29. Under the digital migration regime, signal distributors would be required to provide signal
distribution services on a common carrier platform to broadcasting content provider licensees,  upon the latter's request, on an equitable, reasonable, non-preferential and non-discriminatory  basis.

30. The Migration Task force also recommended that the Government, in consultation with the
Commission, establish a multi-stakeholder working group known as the Digital Television  Committee to implement the Migration Task force Report, if adopted.

31. The Government accepted the recommendations contained in the Migration Task force Report.
The Minister, pursuant to these recommendations, established the Digital Television Committee
(“the DTC”) to spearhead the migration process. The DTC comprised members from  Government and the media industry. The mandate of the DTC was as follows;
a. manage the migration process within a specified timetable;
b. develop an appropriate switchover strategy;
c. identify likely bottlenecks to the uptake of digital broadcast;
d. make recommendations relating to fiscal measures;
e. develop and implement appropriate consumer awareness strategy;
f. monitor and evaluate the awareness, take-up and use of the new services, and adjust the
campaign accordingly.

32. In discharging its mandate, the DTC took into account several matters that had been  recommended by the Migration Task force. It considered that under the existing analogue  broadcasting framework, each broadcasting frequency can only accommodate one programme  channel and each such frequency requires its own transmitter. ?On the other hand, under the  digital broadcasting framework, a single broadcasting frequency can accommodate several  programme channels.

33. Following recommendations of the Migration Task force, the Minister granted conditional authority
to the designated public broadcaster, Kenya Broadcasting Corporation (“KBC”), a signal  distribution licence by a letter dated 28th February 2008. KBC incorporated the 4th respondent,  Signet, as a subsidiary company to offer signal distribution services. The other BSD were to be  given to private investors by CCK through a competitive procurement process. The tendering  process for the BSD license commenced in February 2011 with an advertisement for Expression  of Interest. Six firms were pre-qualified to proceed to the tendering stage.

34. When the tender closed on 31st May 2011, four bidders submitted bids namely: African Link
Agencies Ltd, Mayfox Company Ltd, National Signal Networks, a consortium of Nation Media
Group Ltd and Royal Media Services Ltd, the 1st and 2nd Petitioners, and Pan Africa Networks
Group (Kenya) Co. Ltd, the 6th Respondent. After evaluation of bids, CCK’s Tender Committee
approved the award of the BSD license to Pan Africa Network Group (Kenya) Co. Ltd to roll out a
national broadcasting signal distribution network in Kenya.

35. National Signals Network Ltd challenged the decision to award the BSD licence to Pan African
Network Group (Kenya) Ltd through the procurement dispute resolution mechanism provided  under the Public Procurement and Disposal Act, 2005 by filing Public Procurement  Administrative Review Board (“PPARB”); Application No. 24 of 2011. On 19th July 2011, the  PPARB dismissed the application.

36. While its appeal was pending. National Signal Networks Ltd wrote a letter dated 4th July 2011 to
the Permanent Secretary, Ministry of Information and Communication seeking to be considered  for the BSD licence. The Permanent Secretary responded by a letter dated 22nd July 2011 in  which he noted that, “ ... in view of the fact that your organizations have substantially invested in  the broadcast infrastructure, the Government has directed Communications Commission of  Kenya (CCK) consider issuing you with the third Signal Distribution License.” The conditions  imposed for the application to CCK for the licence were two fold; first, the proposed licencee  would guarantee open access to all and second, the proposed licencee would have to prove to  CCK that the other current infrastructure providers have no interest investing in National Signal  Networks. National Signal Networks did not make the application to CCK as advised nor  challenge the conditions imposed.

37. As a result of the delay occasioned by the decision to award the BSD licence, the Government
made a decision to defer the switch off date from 1st July 2012 to 31st December 2012. The  decision was also influenced by a resolution reached at the 19th Congress of the East African  Communications Organisation, Bujumbura, Burundi held on 28th May 2012. According to the  Report of Proceedings Annex XV 51.0, it was agreed that, “EACO member countries should  honour the analogue switch off deadline of 31st December 2012. No license for analogue  broadcasting to be renewed and those still on analogue after the switch off date should not claim  any protection from interference.”

38. In the meantime and in order to achieve digital migration on the new date, the DTC held multiple
stakeholder consultations and public awareness campaigns. The anticipated switch off  designated for 31st December 2012 did not take place as COFEK, the 1st interested party, filed  Nairobi HC Constitutional Petition No. 563 of 2013; Consumer Federation of Kenya v  Minister for Information and Communication and 2 others and obtained injunctive orders  halting the intended migration. The petition was later withdrawn by consent of the parties on 21st  June 2013 thereby enabling the migration process to proceed. As part of the process of  accommodation of divergent views, Mr Stephen Mutoro, the Secretary General of COFEK was  appointed to DTC on 28th June 2013 but he later resigned from the DTC on 11th July 2013.

39. The DTC continued to prepare for digital migration and at its 65th meeting of the DTC held on 6th
August 2013, it was agreed by all parties including Media Owners Association, to which the  petitioners are all members, that the new switch off dates would be as follows:
(a) Phase 1: 13th December 2013 - Nairobi;
(b) Phase 2: 30th March 2013 - Mombasa, Malindi, Nyeri, Meru, Kisumu, Webuye, Kisii, Nakuru and
Eldoret; and
(c) Phase 3: 30th June 2013 - All other remaining stations.

40. By Gazette Notice No. 13869 dated 1st October 2013, the Cabinet Secretary gazetted the  intended switch off date and the programme for implementation for the digital migration in  accordance with the powers conferred upon him by section 5A of KICA.

41. Apart from oral submissions by counsel, all parties filed comprehensive written submissions
which I shall now outline. All the respondents and the 2nd interested party oppose the petition
while the 1st interested party supports the petition.

The Submissions
Petitioners’ submissions
42. Hon. Muite, S.C., counsel for the petitioners, submitted that the right of establishment is  guaranteed by Article 34 and is only subject to licensing procedures that are necessary to  regulate the airwaves and signal distribution. He added that the right of establishment of  broadcasters and other electronic media is meant to secure media freedom and buttress the  freedom of expression under the Constitution and that failure to issue the petitioners with the  BSD licences and frequencies is a violation of Article 34. Senior Counsel cited several cases,  which emphasise the freedom of the media, in support of the petitioners’ contentions among  them Central Broadcasting Services Limited v Attorney General [2007] 2 LRC 19, Benjamin  v Minister of Information and Broadcasting [2001] 4 LRC 272, Observer Publication v  Mathew and Others [2001] 288 and Retrofit v Posts and Telecommunications Corporation  [1996] 4 LRC 489.

43. The petitioners’ contend that as established broadcasters, they have collectively invested Kshs.
40 billion in broadcasting infrastructure, which is unique in nature, and as such they had a
legitimate expectation that the government would not interfere in their broadcasting business and
that any licensing requirements and regulations would facilitate and not impede broadcasting
services. The petitioners accuse CCK of ignoring their investments and openly discriminating  against them in favour of the 4th and 5th respondents, which are foreign owned companies, with  little or no infrastructure in the media sector in Kenya. The petitioners contend that there was no  rationale for being denied BSD licences particularly when such licences should be independent  of government, political and commercial interests. They further contend that the licences were  issued in an opaque and discriminatory manner. The petitioners argue that the Ministry and CCK  must demonstrate constitutionally justifiable reasons for not giving licences to established media  houses and therefore the decision to deny the petitioners the licence was arbitrary and not  justifiable and a violation of their rights.

44. The petitioners’ case is that as established broadcasting houses, they are entitled to licences
and frequencies and that the rights accrued to them by virtue of Article 34 cannot be taken away
without violating the Constitution. They maintain that they have a legitimate of expectation to be
issued with BSD licences and that the direction to them to migrate to the digital broadcasting  platform without granting them BSD licences is a violation of Article 34(3). Hon. Muite S.C.,  submitted that the right and freedom of the media becomes a dead letter if established  broadcasters are not awarded BSD licences and frequencies and at the same time accorded  time to roll out the digital platform.

45. The petitioners’ challenge the current constitution of CCK, arguing that it was not the  independent body contemplated by Article 34 to regulate the media and as such it could not  superintend over the digital migration process. In support of this contention, Hon, Muite, S.C.,  cited the Principles on Freedom and Broadcast based on Article 19 of the United Nations  Declaration on Human Rights. Principle 10 which provide that all public bodies which exercise  power in the areas of broadcast and/or telecommunications regulation should be independent,  autonomous which should be guaranteed by the law. He argued that CCK as currently  constituted is not independent of government control and cannot be an independent body is not  therefore entitled to issue licences or supervise the digital migration process.

46. The petitioners argue that Kenya’s international obligations, are subject to the Constitution and
that the 2006 agreement which is the basis of the implementation of the digital migration process  is subject to Articles 33 and 34 and does not have the force of law. Counsel relied on the case  of Beatrice Wanjiku and Another v Attorney General and Another [2012]eKLR to argue that  the although the ITU convention was ratified, the agreement reached by the ITU conferences  cannot justify a violation of the Constitution.

47. Hon. Muite S.C., submitted that the petitioners anchor their case on the Constitution which  imposes a positive prohibition of State control of the media and provides for freedom of  broadcasting. He urged that the Constitution should reign supreme.  1st and 2ndRespondents Submissions

48. The 1st and 2nd respondents opposed the petitioners’ contention on the basis that Kenya ratified
the ITU Convention in 1964 and as a result of it is bound to implement all the bilateral and  multilateral agreements negotiated and concluded pursuant to meetings and conferences held by  member states of the ITU. That the ITU Convention forms part and parcel of the laws of Kenya  by dint of Article 2(5) and (6) of the Constitution. They urge the court to enforce the results of  RRC-06 by declining the orders sought.

49. The respondents asserted the both the Migration Task Force Report and the DTC recognised the
benefits that would accrue from digital migration such as creation of additional number of  frequencies, more programming channels accommodation in one frequency, more efficient use of  radio frequency, increased competition and innovation hence wider choice for consumers,  reduction of transmission costs and better technology for storing and processing content.

50. Regarding the petitioners’ complaints on the issuance of digital broadcasting licenses, the  respondents contended that their allegations were not based on law as the issuance of licences  is competitive and that neither the court nor the 1st and 2nd respondents have power to grant such
licenses.

51. The Ministry, in its Replying Affidavit sworn on 4th December 2013 by Joseph Tiampati Ole
Musuni, the Principal Secretary at the Ministry, deposed that the petitioners are members of the
DTC which is tasked with among other things managing the migration process.

52. Mr Njoroge, counsel for the 1st and 2nd respondents, submitted that by dint of Article 2(5) and
2(6) of the Constitution, the ITU Convention and the resulting bilateral, multilateral and regional
agreements negotiated under its auspices to which Kenya is party are binding. He submitted  further that the public benefits that will accrue to Kenya as a State, and for Kenyans, will far  outweigh the financial benefits that the petitioners are pursuing through the petition.

Disposition
142. The petition be and is hereby dismissed with costs to the respondents and 2nd interested party.

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