Court failed to hold State to its pledge on licence

Facts are brutal. Here are some. There are an estimated 3.4 million households (40 per cent) with television sets in Kenya.

Of these, pay TV accounts for probably less than 100,000 households. In population terms, this means television has an estimated viewership of 15.5 million, of which only 456,000 are of pay TV.

In effect, 15 million viewers depend on free-to-air TV. Implicated in the digital migration case at the Supreme Court is not merely the right of the three largest free-to-air broadcasters, it is also the constitutional right of these 15 million viewers to receive ideas.

Pay TV will never cover that market. This means the Communications Authority’s apparent favouring of pay TV is really to the benefit of the other free-to-air TVs not involved in this case.

One need not like the three big media houses — Nation Media Group, Standard Group and Royal Media Services — as they have often been insensitive, intrusive and even incompetent. A friend even quipped: “They have been so arrogant; this is their comeuppance.”

But there are two reasons why one should care about the survival of these media houses that many love to hate. First, those who are old enough will remember the tepid political waffle that the Voice of Kenya once served as news.

They will appreciate that competition has given Kenyans access to better and more information.

Second, constitutional rights are not protected because those who hold them are likable, but because Kenya has committed itself to an idea intolerable to tyrants — that we are better off with an independent media, warts and all.

It maybe that this was the reason why initially the government had promised to grant a broadcast signal distribution licence to incumbent broadcasters to carry their own content.

In the final instalment in this series, we look at how that promise played out in the Supreme Court, which, in effect, left the law related to legitimate expectations in limbo.

In the Report of the Task Force on The Migration of Terrestrial Television from Analogue to Digital Broadcasting, 2007, which was meant to provide the modalities of implementing the 2006 National Information and Communications Technology Policy, the government was explicit.

It committed itself to develop “broadcasting services that reflect a sense of Kenyan identity, character, cultural diversity and expression through the development of appropriate local content”.

LEGITIMATE EXPECTATION

The task force recommended that “incumbent broadcasters be allowed to form an independent company licensed to run the signal distribution services”.

These statements, according to the three media houses, gave them a legitimate expectation that they would be licensed as broadcast signal distribution carriers.

The doctrine of legitimate expectation applies the principles of fairness and reasonableness where a person has an expectation that the government will keep a promise it has made.

It applies mainly in cases in which once the promise is made, citizens adjust their position in a way that leaves them vulnerable if the promise is not kept.

The media houses argued that they had a legitimate expectation to be given a broadcast signal distribution licence based on three premises: one, the government’s promises in its policy documents; two, a statement of the Information PS, in a public speech, and three, because of their substantial investment, amounting to Sh40 billion, towards digital broadcasting.

The Supreme Court disagreed. Relying on Wade and Forsyth’s Administrative Law and two cases cited in that book, the court ruled that the three media houses had no legitimate expectation that they would be issued with a broadcast signal distribution licence.

The court appears not to have carefully read the two cases it quoted. It is true that the statement the court relies on to reject the PS’s promise (that a promise made by a minister cannot found an expectation that an independent officer will act in a particular way) was made in the case R. v. DPP ex p. Kebeline. However, the case itself tells a different story because no explicit promise was, in fact, involved.

This was a criminal case in the UK involving serious terrorism charges. The accused tried to press the Director of Public Prosecutions not to give consent to prosecute.

Their argument was that the Human Rights Act was then about to come into force and they thought that once it did, the DPP would not give his consent.

One of the issues for the court was whether pending the coming into force of the Act, the applicants had a legitimate expectation that the DPP would exercise his discretion to consent to a prosecution in the European Convention on Human Rights, which the act was meant to domesticate.

The court held that they did not, partly because the Human Rights Act itself made it clear that not all provisions of the convention would come into force immediately.

The second case, R. v. Secretary of State for Education and Employment, ex p. Begbie, was related to a politician’s election promise. The English Court of Appeal said, correctly, that an election promise was not binding when the politician became a minister.

But the court would not go as far as our Supreme Court did. It merely said that a statement of intention made by a politician seeking election does not create a legitimate expectation that the promise will be fulfilled after he or she is elected.

However, while recognising that fact, the court had no doubt stated that “the Secretary of State was bound by the policy statement only, and not by pre-election promises, or a mistaken letter”.

In disposing of the promises made in the ICT policy and the task force report, the Supreme Court said “Section 5B of the Act guarantees the independence of the Communications Commission of Kenya, now CAK, stipulating that it shall perform its functions independent of any person or body, except as may be otherwise provided in the Act”.

Under Section 5A(1), however, the relevant minister may issue to the first appellant (commission) policy guidelines of a general nature, relating to the provisions of the Act as may be appropriate.

It is not clear that the Supreme read the policy and the Act correctly. The Act was the instrument enacted to implement the 2006 policy, so it has to be read in that context.

Then there are factual matters that show the importance of the policy. Signet Networks, the licensee that is a subsidiary of KBC, was issued with its licence without a tender or an application, principally because the ICT policy made that commitment.

Why is it legitimate for Signet to get a BSD licence based on an undertaking in the policy but it is illegitimate for incumbent broadcasters, including the three media houses, to rely on a similar promise in the very same policy?

COMMERCIAL ENTITY

One may retort that KBC is a public broadcaster. But that argument forgets the crucial point that though Signet is publicly owned, it is not a public signal carrier. It is a commercial entity that will compete in the carrier market for paying customers.

So, there is, in principle, no real public interest argument for KBC to own a subsidiary with a broadcast signal distribution licence.

The court said promises such as those the PS may have made would have no lawful imprimatur, and would not bind the Communications Authority.

But as the English court said in R. v. Secretary of State for Education and Employment, ex p. Begbie: “In cases where government has made known how it intends to exercise powers which affect the public at large it may be held to its word… The legitimate expectation in such a case is that the government will behave towards its citizens as it says it will.”

The court’s reason for rejecting a legitimate expectation in this case is the assumption that it amounts to an illegal direction to the Communications Authority. But the underlying reasoning is faulty: the law allows the minister to give policy directions to the authority.

It is obvious from this that what the law protects is the operational independence of the authority. If the government decides, at it did in the policy and task force report, that both local stations and KBC would be licensed as broadcast signal distribution carriers as a matter of policy, the authority has the operational independence to choose the most effective means of carrying out that policy.

Think of it this way. The government has decided that building digital villages is a policy priority. Picture the Communications Authority asserting its independence by saying that it won’t play its part in implementing that goal because it is an independent agency.

The authority does not have institutional independence to set policy goals in conflict with those of the government. The Judiciary, in contrast, is both institutionally and operationally independent.

So, this series ends on a poignant note. The decisions of the authority and the Supreme Court have left the country in an unhappy place. The promise of the Constitution has not been fulfilled.

The policy goal of protecting national interest by proper husbandry of frequencies has been forgotten. The interest of a majority of poor viewers have been overlooked in favour a small pay TV elite. Copyright law has been damaged. The very troubling question is: Why? For whose benefit?

The writer is an Advocate of the High Court.