Tag Archives: constitution

High Court Strikes Down Government Media Directive

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In a significant blow to the government’s media policy, the High Court has resoundingly declared as unconstitutional a directive that sought to channel all public sector advertising exclusively through the state-owned Kenya Broadcasting Corporation (KBC). This landmark ruling, delivered by Justice Lawrence Mugambi, effectively nullifies the order issued by the ICT Principal Secretary, Edward Kisiang’ani, in March 2024, which mandated that all government ministries, agencies, and parastatals place their advertising solely with the national broadcaster. The court’s decisive action underscores the judiciary’s commitment to upholding the tenets of the Kenyan Constitution, particularly those safeguarding media freedom, equality, and the principles of good governance, thereby setting a crucial precedent for the relationship between the state and the media landscape.  

A Report by KTN News Kenya

The High Court’s judgment hinged on the finding that the directive contravened several fundamental articles of the Constitution. Justice Mugambi meticulously detailed how the policy violated Article 10, which enshrines good governance and integrity, Article 27, which guarantees equality and freedom from discrimination, and Article 34, which protects the freedom of the media. The court reasoned that limiting government advertising to a single entity constituted an indirect form of control over the media, potentially stifling dissenting voices and undermining the independence of the press. Furthermore, the judge pointed out a critical procedural flaw, asserting that the ICT Principal Secretary had overstepped his legal authority, as the power to make such a significant policy decision regarding public procurement of advertising services rests solely with the Treasury Cabinet Secretary. This lack of legal mandate rendered the directive void from its inception, highlighting the importance of adherence to established legal frameworks in government operations.

The implications of this ruling extend far beyond a mere legal victory; it serves as a powerful reaffirmation of the critical role of a diverse and independent media in a democratic society. Had the directive been allowed to stand, it would have created an uneven playing field, unfairly disadvantaging private media houses that rely heavily on government advertising revenue for their sustainability. Critics had argued that such a policy would not only threaten the financial viability of independent media outlets, potentially leading to job losses and closures, but also limit the public’s access to a plurality of voices and perspectives. The court’s decision safeguards against the potential for government influence through financial leverage, ensuring that the media can continue to operate as a watchdog, holding power to account and providing the public with the information necessary for informed participation in national discourse.

References:

Citizen Digital High Court declares gov’t advertising monopoly unconstitutional

Nation ‘Non-existent powers’: Court quashes PS Kisiang’ani order restricting State advertising to KBC

Kenyans.co.ke High Court Rules That Kisiang’ani Directive Moving Govt Advertising to KBC is Unconstitutional

The Eastleigh Voice High Court declares ICT PS Kisiang’ani has no powers to decide who gets govt advertising

The Standard State cancels adverts to Standard Media as court set to rule on ad monopoly case



BILL TO CHANGE 2012 POLL DATE | The Hidden Plot?

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Is it pushing the date to 2013? Flashback to 21st July, 2011 and, MP for Kilome, Harun Mwau, in a suit lodged at the High Court in Nairobi, said, “there has been confusion as to when the next general elections shall be held.” Mwau contends that the term of the 10th parliament began on January 15, 2008, and shall end on January 15, 2013.

The cabinet and various members of parliament, across the coalition divide, are of the view that the new constitution preserves the term of the current parliament, until mid-January 2013. Article 262 (10) of the constitution states that: “The National Assembly existing immediately before the effective date shall continue as the National Assembly for the purposes of this constitution for its unexpired term.” Thus, the cabinet recently approved a Constitution Amendment Bill 2011, which seeks to alter the poll date. httpv://www.youtube.com/watch?v=Lmw_ceVMmws  Despite public uproar, Justice and Constitutional Affairs Minister, Mutula Kilonzo says, he will push through the Bill on election date, which sets the date for the next general elections on the third Monday of December, every fifth year of an elections cycle. Transitional provisions promise the current parliament its full tenure. It is however prudent to note that the last ‘contentious general elections’, that produced the 10th parliament, was held before the new constitution came into force. Therefore, it would be more accurate to define the “full tenure” of the 10th parliament, as it would have been defined, if the last constitution was in force. “The issue of an August date has never been contentious. The date was determined after consideration of the wishes of the people of Kenya which included submission that a December date interfered with the festive season when Kenyans travel to places where they may not have registered to vote: coincides with religious festivities and the prevailing weather conditions complicate the logistics of ferrying election materials.” CIC addressed. httpv://www.youtube.com/watch?v=BSOWpxaZSo8 Undoubtedly, the wishes of the people of Kenya, expressed in the constitution, have an upper hand against any one single Bill prepared by a few representatives in government. “CIC wishes to remind Kenyans that what killed reforms in this country were “convenience” amendments of the constitution soon after independence… It is such amendments that Kenyans wanted the constitution to be insulated against.

This issue begs the question: Is this the 10th parliament’s plot to extend its tenure in a quest to collect more campaign monies? Politicians should not blame time for their incompetency to perform required tasks. Rather, they should resign from office already, without wasting any more time. What Kenyans need is authentic people power, not the dumbocracy of political rule.

References:

Mwau Asks Court for 2013 Election Date allAfrica.com July 22, 2011

Why the Next Elections May Be Held in 2013 MENAFN.COM July 31, 2011

Change of 2012 poll date height of mischief, impunity Capital News September 14, 2011

Mutula firm on elections date amendment Capital News September 15, 2011

CIC warns over election date change KBC News September 17, 2011

Mutunga Wants Case On Date of 2012 General Election Speeded Up allAfrica.com October 6, 2011

 

 

 

Prerequisite Reforms in Run-Up to 2012 Elections

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On 22nd March 2011, H.E. President Mwai Kibaki addressed a special sitting of parliament to urge the members of the August House to pass at least 10 legislations and other several crucial reforms required to implement the new constitution which will ensure that the 2012 elections are, “conducted within a framework that guarantees the freedom and fair exercise of people’s choices.”httpv://www.youtube.com/watch?v=2eM-ARMrUmk

According to The National Accord and Reconciliation Act, 2008, “a coalition must be a partnership with commitment on both sides to govern together and push through a reform agenda for the benefit of all Kenyans.” The Grand Coalition Government was anticipated to boost the process of constitutional reform-which has been done, now shifting focus to its implementation. In his address, the President said, “the Grand Coalition Government is determined to systematically implement the new constitution.” However, the government is falling behind schedule in implementing the prerequisite reforms, “which must have been passed according to the Fifth Schedule (the fifth schedule lays out the table of implementation) of the constitution, within one year of the promulgation of the constitution,” stated the President. He also highlighted bills relating to judicial reforms and electoral systems, which will be intended to; strengthen accountability, administration of justice, rule of law and ensure checks and balances in governance.”

To be able to conduct a free and fair elections-process is undoubtedly a challenging task, however, it should be noted that, “the sum of parts is greater than the whole.” The August House has a great responsibility of setting up the necessary prerequisite legislations and civil education prior to the 2012 elections. These call for; unity within the Coalition partners, and the prioritization of the process of the implementation of the constitution. Thus any decision to be made and acted upon should follow thorough dialogue and scrutiny such that the end will be seen to justify the means.

References:

Kibaki Urges MPs to Pass Reform Bills 22/03/2011
Kibaki Urges Reforms in Run-Up to Kenyan Elections 23/03/2011

Pres. Kibaki’s Address During a Special Sitting Of Parliament 22/03/2011