[kictanet] Digital Migration Appeal Court Ruling: COFEK

Sun Mar 30 12:03:30 EAT 2014

+1 Harry,

My thoughts on this matter have been that the earlier we migrate the better
for everybody, that then we shall be able to learn from the challenges that
come from the digital switch, am not sure exactly the reasons behind the
continued postponement given that the global deadline for the switch is
very close.

Gideon Rop
DotConnectAfrica.

Like many in the list, I appear lost on what the federation considers to be
> a "win" for consumers. I haven't got a chance to read the ruling as
> delivered by the court and therefore using the snippets you provided in
> your post as context.
>
> As a consumer in my own right, I feel this ruling has robbed me the right
> to consume content how I want it, when I want it and where I want it read
> Choice. As an industry player, the ruling is to say the least misguided,
> unconstitutional and out of touch with industry trends and international
> obligations.
>
> So can you be kind enough to explain to us how the consumer has won in
> this case. Or did you confuse the consumer with COFEK and/or together with
> its partners the media owners? At this point I am completely confused who
> COFEK actually represents.
>
> With Kind Regards
> Harry
>
> > On Mar 28, 2014, at 6:47 PM, "Consumers Federation of Kenya \(COFEK\)" <
> hotline at cofek.co.ke> wrote:
> >
> > Dear All,
> >
> > This afternoon's ruling by the Court of Appeal is certainly a major win
> for the consumers, operators and other stakeholders on the broadcast media.
> Indeed the consumer movement is emboldened and we hope other sectors shall
> take their lesson.
> >
> > It vindicates our long held view that in its' current form, the CCK (and
> now CAK) is not the regulator envisaged under Article 34(3) of the
> Constitution. We are grateful that the Media Owners Association have pushed
> and won the fight we began in December 2012 to make the transition to
> digital broadcasting fair and independent to all stakeholders.
> >
> > We expect that the nullified Broadcast Signal Distribution license to
> PANG will have immediate consequences on Star Times and that the BSD to
> media owners will be fast-tracked. It will be futile for the Government to
> appeal the ruling at the Supreme Court.
> >
> > In light of such embarrassment to Government, it is only fair that the
> ICT Secretary resigns from office and that the regulator rescinds all major
> decisions it has made as the effect of the ruling has the potential to
> reverse all decisions made by the CCK since August 27, 2010 when the
> current Constitution was promulgated. Thank you.
> >
> > Japheth Ogutu, FOR: Secretary General, The Consumers Federation of Kenya
> (Cofek)
> >
> > _______________________________________________
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> >
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> >
> > The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform
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> >
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> Message: 2
> Date: Sat, 29 Mar 2014 11:40:15 +0300
> From: David Makali <
> dmakali at yahoo.com>
> To: Dennis Kioko <dmbuvi at gmail.com>
> Cc: "kictanet at lists.kictanet.or.ke" <kictanet at lists.kictanet.or.ke>
> Subject: Re: [kictanet]
> Digital Migration Appeal Court Ruling: COFEK
>         Response
> Message-ID: <AAC896E0-4BBF-40E7-A0E2-274AEA6CF95D at yahoo.com>
> Content-Type: text/plain; charset="utf-8"
>
> The court exceeded its mandate and sowed more confusion:
>
> 1. By legitimizing the expectation of the media owners for a license and
> proceeding to grant it one uncompetitively. So, why did the const require
> vetting of judges who were in office by 2010? They had a legitimate
> expectation to continue working into pensionhood, having held  their
> positions for years. The pt: the constitution erased all preferential
> expectations and set a new standard because of grievances over legitimacy
> and competence of the status quo.  In the case of ICT/ broadcasting,
> similar questions lie over the evenness of the ground.  The "competitive"
> standard in the award of any public resource or positions is to address
> such issues.
>
> 2. By simply voiding the rights of PANG which had been issued a license
> pursuant to a competitive process, however conducted by an "illegal" cck,
> and disregarding the injustice and financial consequences of such a
> decision. Why uphold the rights of one party and extinguish the rights of
> others? The court's Sympathy only seemed to lie on one side for which it
> poured out its heart generously, but totally ignored the rights of Pang and
> its subscribers.  A middle ground position, recognizing the predicament of
> the current media investors and a suitable remedy to the injustice it found
> committed against them by cck would have sufficed to put the country on a
> forward footing. But this? The next Destination seems to be the Supreme
> Court, which am afraid is going to be choking soon with many unnecessary
> petitions, thanks to the court of appeal's contestable strokes of justice.
> Pang, a subscriber, another investors, or even "cofek's" unrecognized
> consumers have more than enough ground the way I see it.
>
> 3. By failing to admonish the govt for its confused policy (chaotic
> really) and confirming how dangerous it is to invest n this country, in ict
> particularly, because it has protected investors, and others are secondary
> regardless of the processes, which are now routinely reversed.
>
>
>
> This is official mail. If you doubt the content, call back on
> +254722517540.
>
> On Mar 29, 2014, at 10:15 AM, Dennis Kioko <dmbuvi at gmail.com> wrote:
>
> > Very interesting Grace.
> >
> > Was the court well versed on the whole digital migration process,
> spectrum and the fact that spectrum is a resource that belongs to all
> Kenyans, and not a few organisations?
> >
> > On Saturday, 29 March 2014, Grace Githaiga <ggithaiga at hotmail.com>
> wrote:
> >> @Kioko, I quoted this sentence because I just didnt believe that a
> court of law can disregard the fact that there are rules to tendering
> processes. Inaonekana mambo ni yale yale!
> >>
> >> ?An independent body should therefore give them a licence without going
> through the tender process provided they comply with the regulations,? Mr
> Justice Maraga said.
> >> Date: Sat, 29 Mar 2014 09:26:13 +0300
> >> From: dmbuvi at gmail.com
> >> Subject: Re: [kictanet] Digital Migration Appeal Court Ruling: COFEK
> Response
> >> CC: kictanet at lists.kictanet.or.ke
> >> To:
> ggithaiga at hotmail.com
>
> >>
> >> The court ruling as reported in the Daily Nation article is quite
> confusing.
> >>
> >> First, the court is asking the government to reimburse PANG and
> StarTimes for their licensing fee and investments. How much will this cost
> the tax payer?
> >>
> >> Second, the court in supporting its ruling, says media owners have
> invested a lot and they shouldn't lose their investment. The media owners
> will still lose their investment as digital broadcasting is a new
> technology that requires new infrastructure - perhaps the only
> infrastructure that can be reused is the towers.
> >>
> >> Third, is the court implying that licenses issued by CCK are
> unconstitutional?
> >>
> >>
> >> On Sat, Mar 29, 2014 at 8:14 AM, Ali Hussein <ali at hussein.me.ke> wrote:
> >> Listers
> >>
> >> Lets step back and ask a few fundamental questions:-
> >>
> >> 1. How has CAK contravened the constitution in regards to the digital
> migration.
> >>
> >> 2. How does this affect the country in the scheme of things in relation
> to the global move to digital migration.
> >>
> >> 3. How does it benefit the consumer when we continue to perpetuate a
> status quo in the media space where a few big boys muscle out everyone?
> Maybe Consumer Federation can expound on this.
> >>
> >> 4. How can we ensure going forward that the tendering processes are
> air-tight and can withstand frivolous suits. In light of what happened to
> the laptop tender we must ask a fundamental question:
> >>
> >> IS THIS GOVERNMENT SETTING ITSELF UP TO FAIL IN THE OCT SECTOR?
> >>
> >> Ali Hussein
> >>
> >> +254 0770 906375 / 0713 601113
> >>
> >> Twitter: @AliHKassim
> >>
> >> Skype: abu-jomo
> >>
> >> LinkedIn: http://ke.linkedin.com/in/alihkassim
> >>
> >> Blog: www.alyhussein.com
> >>
> >> "I fear the day technology will surpass human interaction. The world
> will have a generation of idiots".  ~ Albert Einstein
> >>
> >> Sent from my iPad
> >>
> >> On Mar 29, 2014, at 1:53 AM, Grace Githaiga <ggithaiga at hotmail.com>
> wrote:
> >>
> >>
> >>
> >>
> >>
> http://www.nation.co.ke/news/Victory-for-Kenyans-as-judges-halt-rush-to-digital-migration/-/1056/2261326/-/qc6k17z/-/index.html
> >> ?An independent body should therefore give them a licence without going
> through the tender process provided they comply with the regulations,? Mr
> Justice Maraga said.
> >>
> >> Really? How now?
> >>
> >> From: jgmbugua at gmail.com
> >> Date: Fri, 28 Mar 2014 23:36:37 +0300
> >> Subject: Re: [kictanet] Digital Migration Appeal Court Ruling: COFEK
> Response
> >> CC: kictanet at lists.kictanet.or.ke
> >> To: ggithaiga at hotmail.com
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >> Idiocy of the highest order. There is no win here only delay of the
> inevitable and stifling of innovation and investment.
> >>
> >> Multichoice is certainly a winner.
> >>
> >>
> >>
> >> From: Consumers Federation of Kenya (COFEK)<
> >> _______________________________________________ kictanet mailing list
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> behaviors online that you follow in real life: respect people's times and
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> >
> >
> > --
> > with Regards:
> >
> > blog.denniskioko.com
> >
> >
> > _______________________________________________
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> >
> > The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform
> for people and institutions interested and involved in ICT policy and
> regulation. The network aims to act as a catalyst for reform in the ICT
> sector in support of the national aim of ICT enabled growth and development.
> >
> > KICTANetiquette : Adhere to the same standards of acceptable behaviors
> online that you follow in real life: respect people's times and bandwidth,
> share knowledge, don't flame or abuse or personalize, respect privacy, do
> not spam, do not market your wares or qualifications.
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