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September 19, 2018

Kenyan Courts Should Toss Out Frivolous Lawsuits

When Deputy President William Ruto at a press conference recently asked the Kenyan judicial courts to be responsible partners in the fight against terrorism, he might as well have been referred to the digital migration issue.

Few other issues demonstrate how sometimes our courts are divorcing themselves from the world in which they live in to deliver judgments than the digital migration issue.

From an initial deadline of June 2013 for Kenya to migrate to the digital TV platform, here we are in June 2014, a whole year later, and we still haven't migrated. Reason; lawsuits, both frivolous and substantial have held up the process with no end in sight.

Meanwhile, the International Telecommunications Union-imposed deadline for the entire world to migrate to digital TV broadcasting by 2015 looms large.

At this rate, chaos beckons if Kenya does not get its act together and starts the migration with ample time to deal with glitches and problems that may arise.

On one hand you have the Consumer Federation of Kenya, an ambiguous self-appointed outfit, purporting to act on behalf of consumers whom it claims will be left out in the migration for inability to purchase the set-top boxes. On the other, you have three prominent media houses demanding their own digital transmission licence before they can allow their content to be broadcast digitally.

Cofek's argument is easy to dispose of. First, the average cost of the set-top box that is in the market comes nowhere near the price of a television set.

For Cofek's argument to hold, the consumer they purport to protect must own a TV. The price of a TV is usually more than Sh8,000. The best-selling range of TVs, the 21-inch screen, retail for well over Sh10,000. Is Cofek claiming that households can afford a TV but not a set-top box which goes for an average of Sh4,000.

Of course when it is presented as an issue of choice by agitators like Cofek, then many households may not have the discretionary spending to burn Sh4,000 on a device that Cofek portrays as an unnecessary punishment on citizens.

But the ITU deadline of 2015 digital migration is real. When that happens what will the time-wasting Cofek say? Kenyans in fact have already started to appreciate this reality. Ipsos, a research group in a recent study, shows that 99 per cent of Kenyans are aware of the impending digital migration.

Out of these, 32 per cent have already purchased a set-top box (STB), with majority having bought them more than two months ago when the switch-off was supposed to happen, indicating clearly that sticking firmly to deadlines would motivate consumers to adjust accordingly.

Of the 68 per cent of Kenyans who have not bought an STB, Ipsos found that 62 per cent intend to purchase one, and another 13 per cent will buy a digital TV with the digital receiver already integrated.

Only 23 per cent said they would not purchase an STB. Why then is Cofek seeking to block migration when the majority clearly intend to comply?

Kenyan courts must toss out frivolous lawsuits meant to delay inevitable events when they clearly are not based on facts but are driven by self-serving outfits executing the agenda of faceless industry players they do not name.

In any case, besides government removing duty to make STBs more affordable to Kenyans, some providers like GoTV have gone ahead to sign financing agreements for their boxes with the popular Safaricom's M-Shwari service, enabling would-be consumers to pay for these boxes conveniently.

However, no sooner had Kenyans switched to using STBs than they found out that three of the local TV channels – Citizen, KTN and NTV – were missing from their bouquets despite having been assured by the Communications Authority of Kenya that these would be available. This should tell us that many Kenyans have already seen the need to migrate.

I asked Multichoice staff why they were denying Kenyan viewers these channels and was told that in fact, the question would be best addressed by the media houses themselves.

Apparently, it is they who, after going to court to fight digital migration on the grounds that they deserved to also be given a transmission licence, decided to withdraw their content from GoTV.

In April, the Supreme Court issued orders barring digital signal transmitters and content aggregators from carrying content from these media houses without their consent.

"That Signet Kenya Limited, StarTimes Kenya Ltd, Pan African Network Group Kenya Ltd and GoTV be, and are hereby prohibited from broadcasting any content from Royal Media Services Ltd, Nation Media Group Ltd, (and) Standard Media Group Ltd without their consent pending the hearing and determination of the intended appeal," Supreme Court directed on April 11.

It turns out that on the strength of this order, the media houses withdrew the content. "GoTV is willing and able to restore the channels immediately but requires the permission of the channel to do so," a GoTV spokesman said.

"At this stage, permission has not been given." This is another example of courts being misused to frustrate policy, innovation and development.

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