[kictanet] Digital Migration Appeal Court Ruling: COFEK Response

Mon Mar 31 12:56:17 EAT 2014

Ok. I understand.

One question, Did the appellant challenge the legality/composition of
CCK/CAK? I didn't get a chance to find that out.

Regards 

From: Wainaina Mungai [mailto:wainaina.mungai at gmail.com] 
Sent: Monday, March 31, 2014 12:32 PM
To: Bernard Kioko
Cc: KICTAnet ICT Policy Discussions
Subject: Re: [kictanet] Digital Migration Appeal Court Ruling: COFEK
Response

Bernard,

Feel free to comment...I have no censorship powers. Simply put, let us also
discuss the important issue of the REGULATOR as it is the composition of the
regulator that seemed to have brought a "twist"to the whole case. It is also
where the solution seems to lie as I am privy to the fact that CCK/CAK
officials do themselves prefer a law that "strengthens them".

On Mon, Mar 31, 2014 at 12:22 PM, Bernard Kioko <bkioko at bernsoft.com> wrote:

Wainana I feel like you are trying to sway us away from the real
issue...what happened at the courts! Is there any specific reason u r
attempting to close that particular debate and saying ppl here have little
objectivity?

On 31 Mar 2014 09:23, "Wyne Bar" <wainaina.mungai at gmail.com> wrote:

I have kept off this debate because of vested interests by several parties
claiming to be making objective analyses. On this list, there's little, if
any, objectivity in the matter of Signal Distribution licensing and
#DigitalMigrationKE as a whole. I will therefore abstain from making direct
comment on the ruling, STBs, Tenders, BSD licences or the Switch-Off date.

Instead, I propose we focus on the new regulator. Six years ago, we had a
somewhat related debate (copied below) about Media Owners versus Editorial
Freedom.

The matter of what really constitutes 'media freedom' came up in 2012/13 as
it did in 2008 around the election period. It came up again during debates
on Media Laws as media owners presented their grievances. We forget to sort
out media regulation in fair weather.

After the ruling by the Supreme Court enforcing Section 34 of the
Constitution, what we may want to ensure as "Consumers of media", is that
the new regulator will be truly "independent" and yet "powerful"...cannot be
influenced by Media Owners or Government etc and can make & enforce bold
decisions. 

If we get the composition, independence and (power) of the new regulator
wrong, nothing else we debate here about Signal Distribution, investor
protection or consumer rights will be of any consequence in protecting
consumers from rogue media or a rogue government.  

On Broadcasting, the cliché "content is king" still holds and whether or not
BSD licence goes to local private media, the right to access/rebroadcast
their FTA content must remain with the Broadcaster. That is also true for
upcoming content producers who need protection of their content from other
players along the value chain. As we debate the issues, let us remember
there are many players in the Digital Broadcasting value chain. 

As the ruling has proved, the REGULATOR is a critical player in the
industry. Let us all help to put together a regulator that will guarantee
justice, innovation and all our ICT aspirations as a country. 

**This is my personal position as a Kenyan consumer of media...and my views
do not represent any media house; or group of Broadcasters**

Have a regulated day,

Wainaina 

---------- Forwarded message ----------
From: Wainaina Mungai <wainaina at madeinkenya.org>
Date: Wednesday, February 13, 2008
Subject: [kictanet] Kenya: The Media is Not Innocent
To: wainaina.mungai at gmail.com
Cc: KICTAnet ICT Policy Discussions <kictanet at lists.kictanet.or.ke>

Allow me to re-deflect the issue away from a specific media house and state
the following as a way forward:

1. Journalists must work with all Kenyans to make the press free from undue
influence from Media Owners. Press Freedom will not be achieved until we
liberate the journalists from the editorial biases of the media owners.

2. Editors must be held responsible when media houses publish/broadcast in
an unethical manner. For this to hold, we must ensure that the media owners
are not the 'final' editors.

3. Journalists/reporters have developed a culture of accepting inducements
in order to edit stories as requested. This must be treated as a crime due
to the privileges society accords the press.

4. Media houses must employ and retrain qualified and ethical staff. There
must be standards that ensure professionalism. Engineers, Doctors and others
submit to standards that the media continues to dodge.

5. Kenya needs a Media Council "with teeth"...that will be a watchdog that
acts in the interest of the public not as a affiliate lobby for Media
Owners.

The verdict should be a clear message to all of us in the media circles.
It's time to look inwards and liberate the profession of journalism from the
businessmen who own the media houses.

Wainaina

On 2/13/08, Wainaina Mungai <wainaina.mungai at gmail.com> wrote:
>
> Thanks Farida,
>
> We should not consider the presence of lessos in ballot boxes in Kajiado
or Kamukunji as evidence that your story was true. The pre-marking or
ballots and the lesso story are what would be considered mutually exclusive
events. The use of lessos as indicator of accuracy is at the very least
speculative. The fact that [it is possible] for an election to be stolen
does not mean that and election [will be] stolen.
>
> For KTN/Standard, the more direct issues as you vouch for the integrity of
your story would be:
>
> 1. Did you have [evidence] that the ballot boxes were stuffed with
pre-marked ballot papers? or were you speculating because someone came
forward as a "witness"?
>
>
> 2. Do you believe that the killings of the Administration Police in Nyanza
were a direct result of the story you authorised? If so, what have you done
to at least console the families of the bereaved policemen?
>
>
> 3. Did you have evidence that the Citi Hoppa buses that were carrying APs
to various parts of the country were meant to be used for a rigging mission?
and would you consider that your story was responsible for the burning of
Citi Hoppa buses?
>
>
> Most voters know that ballot boxes are checked before the start of voting
and sealed infront of witnesses (agents, ECK officials etc).  It is
therefore unlikely that rigging would only take place is unless there is an
elaborate conspiracy involving [all] officials/agents at a polling station.
>
> Overall, the "vibes" KTN/Standard fraternity must contend with is not that
they are a model of "free press" but that it is biased against the
government or pro-ODM. The vibes stations such as Royal Media, Kameme and
KBC contend with is that they have given Kenyans reason to be seen as
pro-government/PNU. Those are the issues the press must address honestly and
not hide behind tags and clichés such as 'press freedom' and 'muzzling the
press'.
>
> NOTE: I work for a competing media house but that is not my motivation for
the issues i have raised on KTN/Standard. I respect journalists for the
effort that goes into writing even the simplest story. However, I am aware
that media houses and journalists have continued to allow their political
and other biases to influence the way they report stories.
>
> Wainaina
>
> On Feb 14, 2008 12:09 AM, Farida Karoney <fkaroney at ktnkenya.com> wrote:
>
> Wainaina
> I personally authorised the story you are blaming KTN for and can vouch
for the integrity of that report  any time. If indeed you believe it is not
possible to steal an election, how come that ballot boxes were found with
lessos, and election materials in some polling stations?
>  
> We cannot resolve explosive issues by hiding or supressing  the truth, and
no one is trying to exonerate the press. Let us not pretend that we do not
know why we are where we are, it is definately not because of KTN or the
Standard Group.
>  
> And it is certainly  not  an academic excercise, afterall most of us do
not have another place to call home except Kenya. Believe me, any Country
which calls itself democratic must be able to live with a free press, no
matter how much of a nuisance it is.
>  
> By all means industry players need mechanisms to promote responsible
behaviour in the media but aggression against media houses in light of the
current political crisis is in my opinion misplaced.
>  
> regards
> Farida
>  
>
> ----- Original Message -----
> From: Wainaina Mungai
>
> This message was sent to: wainaina at madeinkenya.org
> Unsubscribe or change your options at
http://lists.kictanet.or.ke/mailman/options/kictanet/wainaina%40madeinkenya.
org
>

--

On Sunday, March 30, 2014, Ngigi Waithaka <ngigi at at.co.ke> wrote:
> Guys,
>
> If an organization by the then name of CCK had done its homework and had
greed not been the overriding factor in issuing the Digital Licenses, we
would not be in the mess that we are in today, where Wanjiku has lost big
time.
>
> Any smart person @CCK would have foreseen what has happened the moment the
current broadcasters lost the bid for the digital broadcasting license. You
cannot wish away such a large fish swimming in the pool. The smart thing
would be to work with the big fish as you rear other fish and only confront
the big fish once you have other sizeable fish in that pool.
>
> They say "...The law is an ass..." and I can't think of a more applicable
case than this!
>
> Way forward:
> 1. Issue the local broadcasters the Digital License. This gets them out of
the way
> 2. Issue similar Licenses to Signet and that other Chinese firm
> 3. Get sober minds at CAK. If we don't do this, we wouldn't have a
regulator to talk about in the next couple of months.
> 4. And let the conspicuously absent CS ICT to take charge. There is not a
single *BIG* deal that touches ICT that can go through without hullabaloo!
>
> Exactly whats is hard in doing this?
>
>
> On Sat, Mar 29, 2014 at 11:57 AM, Bernard Kioko [Bernsoft Group]
<bkioko at bernsoft.com> wrote:
>>
>> David,
>>
>>  
>>
>> You have summarized it well.
>>
>>  
>>
>> Perhaps the benefit of what happened yesterday is that at the Supreme
Court, sanity will carry the day without the option of going to any other
court thereafter. It appeared to me like that's the "the plan" . Then again,
is this wishful thinking on my part.
>>
>>  
>>
>> Regards
>>
>>  
>>
>> From: kictanet [mailto:kictanet-bounces+bkioko
<mailto:kictanet-bounces%2Bbkioko> =bernsoft.com at lists.kictanet.or.ke] On
Behalf Of David Makali
>> Sent: Saturday, March 29, 2014 11:40 AM
>> To: bkioko at bernsoft.com
>> Cc: kictanet at lists.kictanet.or.ke
>>
>> Subject: Re: [kictanet] Digital Migration Appeal Court Ruling: COFEK
Response
>>
>>  
>>
>> 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. 
>>
>> Unsubscribe or change your options at
https://lists.kictanet.or.ke/mailman/options/kictanet/ngigi%40at.co.ke
>>
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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.
>>
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>
>
> --
> Regards,
> Waithaka Ngigi
> Chief Executive Officer | Alliance Technologies | MCK Nairobi Synod
Building
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