and then came the court orders...on a good sunday! 2013/2/3, Grace Githaiga <ggithaiga@hotmail.com>:
Finally! CCK has taken the right direction and should not be cowed by all the noise in the blogsphere. The law must be enforced regardless of the timing. An illegality is an illegality. Kindly let us not politicize the matter. Enforcement of this judgment does not in any way relate to SK supporting CORD. This should be seen as a pure enforcement of a broadcast requirement.
Broadcast licences have conditions and CCK does warn against their breaching. For example CCK is usually clear on power of transmitter, the radius of broadcast, the equipment that is approved etc. If for example you go beyond that radius, or use a more powerful transmitter and therefore interfere with other stations' signals, you breach the law and CCK has to come in. Further, in this case, RMS was given sufficient time to put in corrective measures.
This court case between RMS and CCK has been going on for a while. Please read: http://kenyalaw.org/CaseSearch/view_preview1.php?link=7054245789133869626628...
Just to highlight a few things:
CCK issued a public notice on May 17, 2012 where it warned of "UNAUTHORISED USE OF BROADCAST FREQUENCIES" in the Daily Nation, and reminded "the licensed frequency users that all radio frequency transmitters must be operated under a valid licence whose conditions must be adhered to. In accordance with the Kenya Information and Communications Act, Cap 411A, operation of radio services without a licence is an offence that attracts a fine of Kshs.5 million and imprisonment for a term not exceeding three years or both"
Those operating illegal licences were given a 30 day notice to surrender the frequencies, failure to which CCK warned that it would take action. Several radio stations among them Neutral Digital Broadcasters Limited, Trans World Radio – Kenya, Real-Time Solutions Limited, Imani Radio & TV Ministries, Capital FM and other stations duly complied with the direction and informed CCK that they had installed band filters to minimise harmful interference.
CCK wrote to RMS a “Notice of Violation” letter dated 3rd August 2012, where several non conformities were noted. CCK was concerned that that despite having asked RMS to correct the anomalies, no action had been taken. CCK further asked RMS to take corrective measures within 30 days from the date of the letter to ensure that it installs "the band pass filters, obtain Type Approval for its transmitters, shut down unauthorised stations and relocate to the designated broadcast sites". RMS on different dates received more letters from CCK on unauthorized use frequencies.
Needless to say, RMS did not comply and instead went to court (it enjoined the AG and the Minister of Information) arguing that it was entitled to continued use of the frequencies since the body envisaged by Article 34 (5) of Kenya's 2010 Constitution for licensing and issuing broadcaster’s frequencies was yet to be established. Further, RMS argued that the letters and Notice issued by CCK contravened/violated its fundamental rights and freedoms under Articles 34, 40, 47 and 48 of Kenya's Constitution and requested the court. Additionally, RMS wanted (14) (g) A permanent injunction restraining the 2nd (Minister) and 3rd (CCK) respondents or any of them from cancelling, stopping, suspending, restricting or in any way whatsoever interfering with the petitioner’s licences frequencies, broadcasting spectrums and broadcasting services.
The courts (Justice Majanja) already re-emphasized the regulatory role of CCK in issuance of licences and frequencies on 18th January 2013.
This is the summary of the ruling.
Conclusion and disposition
62. In summary, I find and hold that the CCK is entitled to exercise regulatory authority over broadcasting and other electronic media pursuant to the Kenya Information and Communications Act until such time as Parliament establishes the body contemplated under Article 34(5) of the Constitution. Thus prayers (a), (b) and (c) of the amended petition are dismissed.
63. I find and hold that the letters dated 6th March 2012, 3rd August 2012, the Notice of Violation dated 3rd August 2012 and the notice issued in the Daily Nation of 17th May 2012 are not in contravention of the petitioners rights protected by Articles 34, 40 and 47 of the Constitution as they are in the nature of notices that afford RMS to show cause why regulatory action should not be taken against it. As a consequence, I reject prayers (d), and (e) of the amended petition.
64. The grant of prayers (f) and (g) of the amended petition would have the effect of excluding RMS from statutory regulations. As I have held, I do not think regulatory action, which entitles the RMS to due process is a violation of the Constitution nor does such action interfere with its fundamental rights and freedoms of the petitioner.
65. In view of the findings I have made, the petition is dismissed. As this is a matter for the enforcement of fundamental rights and freedoms I decline to make an award for costs.
66. I thank counsel who appeared in this matter for their detailed submissions.
DATED and DELIVERED at NAIROBI this 18th day of January 2013.
-- Grace L.N. Mutung'u (Bomu) Kenya Skype: gracebomu Twitter: @Bomu Website: http://www.diplointernetgovernance.org/profile/GraceMutungu