Press Freedom: CCK’s Media Regulatory Role Meets the Test of the New Constitution
Reported by Michael M. Murungi.

Royal Media Services Ltd v Attorney General & 2 others [2013]eKLR
High Court at Nairobi (Milimani Law Courts, Constitutional and Human Rights Division)
Justice DS Majanja
January 18, 2013

Advocates:
Dr. Kamau Kuria (Kamau Kuria & Kiraitu Advocates) for the Petitioner
Mr. Kaumba, Litigation Counsel (State Law Office) for the 1st and 2nd Respondent
Mr. Wambua Kilonzo (Sisule Munyi Kilonzo & Associates) for the 3rd Respondent

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)

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

Issues for determination

• 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?


• Was the Commission the regulatory authority contemplated under Article 34 of the Constitution?


• 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?

Facts
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.

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.

In August 2010, a new constitution came into force, section 34 of which provided as follows:

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)-

(2) The state shall not –
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

(b) penalize any person for any opinion or view or the content of any broadcast, publication or dissemination.

(3) Broadcasting and other electronic media have freedom of establishment, subject only to licensing procedures that –
(a) are necessary to regulate the airwaves and others forms of signal distribution; and
(b) are independent of control by government, political interests or commercial interest….
(5) Parliament shall enact legislation that provides for the establishment of a body, which shall-
a. be independent of control by government, political interests or commercial interests;
b. reflect the interests of all sections of the society; and
c. set media standards and regulate and monitor compliance with those standards.

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).

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.

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.

Held:

• 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.


• 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.


• 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.


• 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.


• 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.


• 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.

Petition dismissed.