There is truth in the statement of an unknown wit that proclaimed that “men fight for freedom, then they begin to accumulate laws to take it away from themselves.”
This is the feeling one gets in the survey of the decision of the Supreme Court on Article 34, the media freedom clause, in the digital migration appeal.
This article assesses the impact of the court’s decision on the freedom of media clause. First, we track the case from the High Court to the Supreme Court. Second, an analysis of the Supreme Court’s reading of Article 34 follows. Finally, the conclusion tries to assess the impact of this decision on media freedom.
Let’s begin with the case in court. Royal Media Services, the Nation Media Group and the Standard Media Group were eventually shut out of the BSD (Broadcast Signal Distributors) procurement process. They then lost the appeal to the Public Procurement Administrative Review Board (PPARB), and, to their chagrin, the Communications Commission of Kenya (since renamed Communications Authority of Kenya) authorised their rivals to carry their content without their consent.
It was then that the media houses decided to file a constitutional case against the CCK, the Attorney-General and the Ministry of ICT in the High Court.
FOUR ARGUMENTS
They made four arguments: That Article 34 of the Constitution had been violated to their detriment; that the Constitution requires the State to establish an independent broadcast regulator and that the CCK was not that body; that the decision of the CCK authorising pay TV to carry their content without their consent was an illegal use of copyrighted materials and so a violation of their intellectual property rights; and, that by reneging on the promise to grant them a BSD licence, the government had frustrated their legitimate expectation arising from its own policy documents.
They argued that, as with KBC — which had similarly been promised and granted the BSD licence — they should never have had to go through a tendering process. The case was first heard in the High Court.
The High Court rejected all these claims. It held that, having participated in the tendering process and exhausted the procurement appeals process, they could not re-open the issue of the BSD licensing through a constitutional application.
On the CCK, the court held that the CCK was the body contemplated by the Constitution, at least in the transition period. It also rejected the intellectual property argument saying that it could not see how any copyright had been violated in the CCK letter authorising pay TV to carry the content of the local broadcasters without their permission.
LEGITIMATE EXPECTATION
Nor, according to Justice David Majanja, could any legitimate expectation claim be allowed. On appeal, the three Court of Appeal judges reversed the decision of the High Court and, in effect, agreed with the media houses on all their four claims.
The appellate court held that the three media houses had a legitimate expectation that they would get the BSD licence, partly because of their massive investment in broadcasting — amounting to 40 billion shillings — and partly because of the promises made by the government.
The court also held that the CCK was not the body contemplated by the Constitution as the independent broadcasting regulator. One effect of that finding was that the licence issued to PANG was cancelled. The CCK, the Attorney-General, the Ministry of ICT and PANG appealed to the Supreme Court, which re-instated the decision of the High Court with only one exception.
The Supreme Court held that the CCK had violated the principles and values in Article 10 of the Constitution. It now ordered that the CCK be reconstituted as the Communications Authority of Kenya, to kick-start discussions with the three media houses partly to agree on modalities of digital migration and partly to agree on additional BSD licensing.
OWN CONTENT
When the 90 days expired, the modalities of digital migration had not been agreed upon and though the three media houses have now been allowed to carry their own content, in principle, they had not been granted a BSD licence, which would have allowed them to offer broadcast carrier services to other broadcasters.
Having furnished the background, we now turn to the decision of the Supreme Court. Even though the judgment of the Supreme Court has received little interest in the media, it will prove to be as far-reaching- perhaps more so than the decision of the Supreme Court in the presidential election petition.
The court’s narrow reading of Article 34 is a blow to the intentions of the makers of the Constitution that media would flourish in the new dispensation. In this piece, let us focus on the court’s reading of Article 34 of the Constitution. In this case, the Supreme Court was called upon to interpret the clear language of Article 34 generally and sub-Article (3) in particular.
As the judges saw it, the explicit language of that Article is tentative and does not explicitly compel government to establish an independent broadcast regulator. All that article 34(3) required is that the process used by CCK be independent of government. It is not the CCK itself that had to be independent of government.
COURT IS MISTAKEN
Let’s take a close look at Article 34 to see why the court is mistaken. The right of media — now secured by Article 34 of the Constitution — rests on the idea that the public debate depends on a free and plural media.
For that reason, Article 34 imposes very explicit duties on government in sub-Articles 1, 3 and 5, all of which were key issues in the digital migration case. The first sub-Article guarantees the “freedom and independence of electronic, print and all other types of media”. Sub-Article 3 secures the right of establishment for “broadcasting and other electronic media” subject only “to licensing procedures”.
The licensing procedures themselves must satisfy two mandatory conditions: They must be “necessary to regulate the airwaves and other forms of signal distribution” and they must be “independent of control by government, political interests or commercial interests.”
Sub-Article 5 requires Parliament to “enact legislation” to establish a body that reflects of all “sections of society” and is “independent of control by the government, political interests or commercial interests” to “set media standards and regulate and monitor compliance with those standards.”
The three media houses argued that the effect of sub-Article 3 is that the government must create an independent body to allocate radio frequencies and that given the current structure and composition of the CCK, it was clear that it did not meet the criteria of independence that the Constitution required.
CONFUSION ARTICLES
The court disagreed. It said that the three media houses were confusing sub-Article 3 and sub-Article 5. Only sub-Article 5 required government to create an independent body. From the judges’ reading of the law, that sub-Article referred to a body for setting standards, in other words a body dealing with ethics and media standards.
The body referred to in that sub-Article, the judges concluded, was the Media Council of Kenya, which had nothing to do with frequencies. As to the meaning of sub-Article 3, the court ruled that all that a broadcaster was entitled to were ‘independent procedures” not an independent body”.
As a matter of theory and practice, the court is profoundly mistaken. Nothing in the language of Article 34 or in the principles of constitutional law says that if the law is not explicit that a law should be enacted, then no authority to enact law exists.
The laws that the Constitution explicitly says must be made are merely the minimum required to give effect to the Constitution. The point is that all of Parliament’s power is permitted by the Constitution, even if the Constitution does not explicitly say so.
When a specific clause in the Constitution explicitly says Parliament is to make a named law — as article 34(5) does — it merely defines the minimum legislative agenda, not all the necessary and proper laws that Parliament should enact.
INSUPPORTABLE CONCLUSION
If we drill a little more, it becomes clear why the Supreme Court’s conclusion is insupportable. Under Article 20, the Constitution requires the court to “adopt the interpretation that most favours the enforcement of a right or fundamental freedom.”
The court’s reading of Article 34 blights this hope. How is the broadcast media’s right of establishment to be protected if not by both independent procedures and an independent body? There are two rights which though described in stand-alone terms are nonetheless bundled: The right of media to exist — which is unqualified — and the right of establishment, which is subject to licensing procedures that are independent of government, commercial and political interests.
The purpose of the establishment clause, Article 34(3), is to make the right of the media, in Article 34(1), meaningful. But on this, the court is guilty of throwing cotton wool in our eyes. The judges spent much time and care, extensively reviewing the obligation created by Article 34(5), under which the Media Council of Kenya is created. The court concludes, correctly, that the CCK is not the body contemplated under 34(5). But that conclusion is irrelevant to Article 34(3) which governs frequencies.
CANNOT BE INDEPENDENT
In reading Article 34(3) — where frequencies are meant to be allocated through a process that is independent — the court concludes that it is logical to assume that “licensing procedures cannot be independent unless the licensing organ is itself independent.” This was the media houses’ central point: It is disposed of in four short sentences.
So we are left with the following legal proposition. What a person who wants frequencies is entitled to are independent ‘procedures’ not ‘an independent organ’. Even the court appears uneasy at its own conclusion. It notes that media houses were unhappy with the CCK because of its perceived lack of independence especially in the manner in which it is composed.
The trouble is that the court does not follow through on that unease. What is a court to do when a body with the mandate to implement constitutionally protected rights is perceived to lack independence?
Instead of answering that question, the court, in effect, opts out. It observes that since Article 34(3) does not mention the creation of a body — as Article 34(5) does — there is, therefore, no requirement that an independent body be created.
This frames the constitutional question the wrong way. The proper question is whether the government can fulfil the mandatory duty of allocating radio frequencies in an independent way through a body whose composition gives the perception that it is not independent, as the court itself notes.
SHALLOW UNDERSTANDING
The fault lies in the court’s shallow understanding of independence. As to what independence is meant by Article 34(3) the court begins well enough. It notes that this is a “combination of many factors, including ‘the fortitude of the men and women who occupy office in the said body’. But that feint to the right rhetoric is completely unhelpful.
Where litigants claim — as they did here — that their rights have been violated because a decision-maker is not independent, the court must settle the question one way or the other.
What does Article 34(3) mean by “procedures independent of government?” The CCK in effect argued that procurement would be such a procedure. In support of that position, they referred to Article 227. That Article requires the government to use procedures that are “fair, equitable, transparent, competitive and cost-effective’ when it is contracting. But, unfortunately, nothing in that Article suggests that contract or procurement is the appropriate or only permissible method for allocating radio frequency spectrum.
In fact, no country in the world uses contract exclusively for allocating radio frequency spectrum. Those who do, usually set very specific national interest requirements. Radio frequencies are public goods of a very special kind: Freedoms central to democracy — expression, speech, access to information, the right to assemble — depend on their fair distribution.
INDEPENDENCE
But there is a lot more that is wrong with the argument: Kenya does not have a history where a body not independent of government ever applied fair procedures. It is as if the court had argued that when the Constitution talks of a fair trial, it envisions fair procedures, not an independent judge. Independence is formal and substantive, not one or the other but both together.
Kenyans know from bitter experience that a mere declaration that procedures are fair, guarantees nothing about a fair decision if the judicial officer is a lackey of the powers that be. How decisions are made; how open the process of decision-making is; who makes those decision and how accountable the institution making the decision is, are all part of the criteria by which we define any regulator as independent.
And then there was the factual background that the court failed to consider. Not only was the CCK not, on the face of it, independent of government, its past relations with the media houses were not encouraging. It had already had numerous run-ins with the three media houses, often in circumstances that suggested that its decisions were politically instigated.
This means that even if the court thought that, in principle, an independent body was not necessary so long as independent procedures were followed, the factual matter here was the regulator in this case had already shown that despite statutory proclamations of its autonomy and independence, it was not immune to political influence. That fact alone says that it had failed one of Article 34’s requirements: The need to be independent of political interests.
SUPREME COURT MISTAKEN
But the Supreme Court is also mistaken in how it reads the media freedom clause. The court argues that the broadcast media freedom is subject to radio frequency licensing procedures. This is to read the Article in reverse: The right to freedom of the media comes first.
The right of establishment comes next. The first right, the right to freedom of media, is not subject to radio frequency licensing procedures. Rather, it is the right of establishment that is subject to those strictures.
This means that the court’s analysis should have proceeded step-wise: In the first place, the court ought to ask whether the frequency licensing regime undermines the right of establishment.
In the second step, the court then asks whether that undermines the right to freedom of the media to exist. Let us make this concrete.
Suppose the CCK decides to allocate frequencies, as it did in this case, through a procurement process through which all bidders must give a bid security of Sh120 million? The court might consider that such a rule favours no particular bidder among those qualified. Under those circumstances, the procurement is not an interference with the right of establishment.
But when the court tests that conclusion against the principles in the Constitution and freedom of media in Article 34(1), it may conclude that if procurement on those terms is implemented across the board, it potentially locks out small media from broadcasting. For example, such a procurement rule would be anti-devolution in that it would certainly cut out applicants with a small geographical reach, say those at the county level.
AFFIRMATIVE ACTION
At this point, the court may then rule that the procurement process must be supplemented by an affirmative action policy that reserves some BSD licences for marginal, geographically-limited carriers such as those in the counties.
One argument that the court made much play of has to do with the transition period. The court argued it was a fact that when the Constitution came into force in 2010, CCK was the broadcast regulator. The constitution gave the government three years within which to implement Article 34. From that fact, the CCK was entitled to continue acting as the broadcasting regulator.
The theory, in short, is that during the transition period, the Constitution did not envision a vacuum in broadcast regulation. Based on this reasoning, the court argued that CCK’s independence could not be impugned.
This argument has three flaws. First, it is important to clarify the nature of the three-year timeline that Parliament had been given. The timeline is a sunset clause — it is not an appointment. That is, a sunset clause is a deadline. It says that something needs to be done by a certain date but that means that it can also be done much earlier, depending on the policy imperatives.
THE TRICK
An appointment is different: It says that something has to be done on a specified date.
The trick is to see how this changes the analysis. When the government embarked on digital migration, it should have asked itself what legal obstacles stood in its way.
One such obstacle is Article 34, which — as relates to broadcasting — required that an independent process be in place for allocating of frequencies.
The government cannot respond to critics by saying that it had three years within which to comply with that Article. It has an obligation to comply with every article from the day the Constitution came into force. Unless, of course, the Constitution explicitly says that the Article is in abeyance.
To conclude, the Supreme Court has left media freedom and particularly broadcasting in limbo. By serving up a narrow understanding of ‘independence’ and taking an unduly narrow reading of Article 34, the court has betrayed the hopes cherished by the drafters of the Constitution that a stand-alone media clause would protect Kenya’s long-suffering Press from predation by government.
The writer is a constitutional lawyer. mainawaciira@gmail.com
(Source: Daily Nation)
