<html><head><meta http-equiv="Content-Type" content="text/html charset=windows-1252"></head><body style="word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space; ">Having read the petition and attendant facts, it is clear that the lawyers (I would expect better from Kamau Kuria & Kiraitu!) clearly misadvised (it seems due to some fallacious misinterpretation of the Kenya Constitution, 2010) Royal Media Services. There is no doubt that their arguments were specious and the case was to me frivolous. This is especially clear in section 7(1) of the Sixth Schedule to the Constitution which states that all law in force immediately before the date of the promulgation of the Constitution of Kenya, 2010 continued in force and shall be construed with the adaptations necessary to bring it into conformity with the Constitution.<div><div><br></div><div>A layman's view!?<br><div><div> <br><div apple-content-edited="true">
<div style="color: rgb(0, 0, 0); font-family: Helvetica; font-size: medium; font-style: normal; font-variant: normal; font-weight: normal; letter-spacing: normal; line-height: normal; orphans: 2; text-align: -webkit-auto; text-indent: 0px; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px; -webkit-text-size-adjust: auto; -webkit-text-stroke-width: 0px; word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space; "><div>Dr George Nyabuga Tel: +230 403 51 00<br>Head, Communications and PR, AFRINIC Fax: +230 466 67 58</div><div><a href="mailto:george@afrinic.net">george@afrinic.net</a> - <a href="http://www.afrinic.net/">www.afrinic.net</a><br> <br>----------------------------------------------------------------------------------------------------<br>Please join us at the Africa Internet Summit, Lusaka, Zambia, 9 � 21 June 2013<br>----------------------------------------------------------------------------------------------------</div></div>
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<br><div><div>On Jan 22, 2013, at 10:55 AM, "Grace Mutung'u (Bomu)" <<a href="mailto:nmutungu@gmail.com">nmutungu@gmail.com</a>> wrote:</div><br class="Apple-interchange-newline"><blockquote type="cite"><p align="center"><strong>Press Freedom: CCK�s Media Regulatory Role Meets the Test of the New Constitution<br>
</strong>Reported by Michael M. Murungi.</p><p>Royal Media Services Ltd v Attorney General & 2 others [2013]eKLR<br>
High Court at Nairobi
(Milimani Law Courts, Constitutional and Human Rights Division)<br>
Justice DS Majanja<br>
January 18, 2013</p><p>Advocates:<br>
Dr. Kamau Kuria (Kamau Kuria & Kiraitu Advocates) for the Petitioner<br>
Mr. Kaumba, Litigation
Counsel (State Law Office) for the 1st and 2nd Respondent<br>
Mr. Wambua Kilonzo
(Sisule Munyi Kilonzo & Associates) for the 3rd Respondent</p><p><em>Constitutional
law � interpretation of the Constitution � interpretation promoting the
purposes and values of the Constitution and good governance � where a
new constitution provides for the enactment of a law to establish a
body to regulate the media � Communications Commission of Kenya a
statutory body exercising regulatory functions before the Constitution
was promulgated - whether the Commission could continue to exercise
those functions before the body contemplated under the constitution is
established in law � whether to construe the Constitution as having
extinguished the Commission and to leave a regulatory vacuum would
undermine the principles and objectives of the Constitution -
Constitution of Kenya, 2010 Articles 34, 259(1), Fifth Schedule, Sixth
Schedule section 7(1)</em></p><p><em>Constitutional
law � constitutional rights - press freedom � freedom of the media -
notice by media regulator to a broadcaster to surrender broadcasting
frequencies it was said be operating without a licence �whether the
notice was in violation of the broadcaster�s right to freedom of the
media, the right to ownership of property in the frequencies and the
right to fair administrative action � Constitution of Kenya Articles
34, 40 and 47</em></p><p><strong><em>Issues for determination</em></strong></p>
<ul><li><em>Whereas
article 34 of the Constitution of Kenya, 2010 provided for parliament to
enact legislation to establish a body to regulate the media, was the
Communications Commission of Kenya, which had been previously
established under the Kenya Information and Communications Act of 1998,
entitled to continue to perform that regulatory function when
parliament had not passed the legislation contemplated by the new
Constitution?</em></li><br><li><em>Was the Commission the regulatory authority contemplated under Article 34 of the Constitution?</em></li><br><li><em>Did a
notice issued to the petitioner by the Commission notifying it that
certain of its frequencies were being operated without a licence and
that the frequencies were liable to being surrendered violate the
broadcaster�s constitutional rights to freedom of the press, to the
ownership of property and the right to fair administrative action under
articles 34, 40 and 47 of the Constitution?</em></li></ul><p><strong><em>Facts</em></strong><br>
The Communications
Commission of Kenya (the CCK) was established in 1998 by the then Kenya
Communications Act 1998, which is now the Kenya Information and
Communications Act, 1998. The CCK was established as the regulator for
telecommunication, radio and later broadcasting and ICT services.</p><p>The CCK had issued
Royal Medial Services, a Kenyan broadcasting company, with licences to
provide radio and television broadcasting services in various parts of
Kenya. </p><p>In August 2010, a new constitution came into force, section 34 of which provided as follows:</p><p><em>34.(1): Freedom
and independence of electronic, print and all other types of media is
guaranteed, but does not extend to [forms of expression prohibited under
Article 33(2)-</em></p><p><em>(2) The state shall not �</em><br>
<em>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<br>
<br>
(b) penalize any person
for any opinion or view or the content of any broadcast, publication
or dissemination.</em><br>
<br>
<em>(3) Broadcasting and other electronic media have freedom of establishment, subject only to licensing procedures that � </em><br>
<em>(a) are necessary to regulate the airwaves and others forms of signal distribution; and</em><br>
<em>(b) are independent of control by government, political interests or commercial interest�.</em><br>
<em>(5) Parliament shall enact legislation that provides for the establishment of a body, which shall-</em><br>
<em>a. be independent of control by government, political interests or commercial interests;</em><br>
<em>b. reflect the interests of all sections of the society; and</em><br>
<em>c. set media standards and regulate and monitor compliance with those standards.</em></p><p>In May 2012, the CCK
issued a press notice that certain radio frequencies in some towns in
Kenya were being operated without a licence and required the operators
to surrender the frequencies within 30 days. The majority of the
frequencies which were the subject of this notice were for television
and radio services operated by Royal Media Services (RMS).</p><p>RMS filed a
constitutional petition in the High Court in which it argued that the
notice was contrary to the Constitution because the CCK was not the
licensing body sought to be established by section 34(5). It argued
that the effect of the new Constitution was to re-organise the state
entities concerned with media regulation in order to protect the newly
established constitutional freedom, and to suspend all the licensing
provisions and functions of the CCK under the Kenya Information and
Communications Act until the body envisaged under Article 34 of the
Constitution was established.</p><p>RMS further argued
that the notice violated its freedom as a media organization, its right
to the property in the frequencies and its right to fair
administrative action.</p><p>Held:</p>
<ul><li>The Constitution
of Kenya 2010 was superimposed on an existing legal framework. The
framers of the Constitution intended that over time, this framework
would be transformed by legislative Acts to accord with the
Constitution. It was for this reason that Article 261(1) and the Fifth
Schedule to the Constitution required parliament to enact the
legislation contemplated under Article 34 within three years from the
date of the promulgation of the Constitution.</li><br><li>Under section
7(1) of the Sixth Schedule to the Constitution, all law in force
immediately before the date of the promulgation of the Constitution of
Kenya, 2010 continued in force and shall be construed with the
adaptations necessary to bring it into conformity with the
Constitution.</li><br><li>Moreover,
Article 259(1) of the Constitution was to be interpreted in a manner
that promoted its purposes, values and principles; advanced the rule of
law, human rights and fundamental freedoms; permitted the development
of the law and contributed to good governance. For the Court to permit a
situation where a legally constituted body is extinguished leaving the
airwaves unregulated would undermine the constitutional objectives of
good governance.</li><br><li>It followed that
the Kenya Information and Communications Act, 1998 and all the
regulations made under it remained in force subject to the Constitution
and the transitional provisions. </li><br><li>The
Communications Commission of Kenya was established by legislation which
was currently in force and was empowered to licence and regulate
postal, information and communication services as contemplated under
Article 34 of the Constitution until the body contemplated under
Article 34(5) was established.</li><br><li>The action of
the Commission against Royal Media Services was in the nature of a
notice to show cause why regulatory action should not be taken against
it and it did not amount to a contravention of any of the petitioner�s
rights under Articles 34, 40 and 47 of the Constitution. </li></ul><p><em>Petition dismissed.</em></p>
<div align="center"><a href="http://www.kenyalaw.org/Downloads_FreeCases/91338.pdf" target="_blank"><strong><u>Download the Full Judicial Opinion</u></strong></a></div>
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