Win for media as gag on live protest TV coverage overturned

The High Court has ruled that the Communication Authority of Kenya was wrong to threaten six television stations with closure to stop giving live coverage of the Azimio protests earlier in the year.

Judge John Chigiti found that the agency violated the rights of Citizen TV, NTV, Ebru TV, T47, K24 and KBC because the order of caution given to them against the coverage was issued unilaterally without giving them a fair hearing.

He also found that the commission relied on an instrument, the programming code for broadcasting services in Kenya 2019, which was already expired and hence had no force of law. It also found that the commission misapplied the law they cited to enforce the censure it dished out to the stations.

On March 22 this year, Ezra Chiloba-led commission issued a censure to the stations by relying on section 46A (k) of Kenya Information and Communication Act 2009 as well as KICA broadcasting regulation that empowers it to monitor broadcasts.

It had told court in the proceedings brought by the station that it gave the advisory because it “believes that live broadcast of the demonstrations run a foul of the provision of Regulations 19 (1) ( c) and (d) of the KICA (broadcasting) regulations, 2009 and that warranted a reminder by the authority [through its DG] to the six stations of their obligations under the KICA.”

In the advisory, the commission told the stations that if they did not take remedial actions against the coverages, they shall be in breach of their license conditions “which shall attract liability under relevant provisions of the law including revocation of broadcasting license or broadcast frequencies…”

The stations went to court to protest what they called an overreach by the commission, asking for quashing of the order and striking down of the broadcasting regulations, calling them broad and vague.

They also argued that the broadcasting programming code was obsolete at the time of the issue of the censure, hence any order given relying on them were illegal.

During trial, the stations said Kenyans had a right to access to information and broadcasting of the events was cardinal because the country was a signatory to the international convention on civil and political rights.

The commission, in its defence, said that “the advisory was made in public interest and as a courteous reminder to the broadcasters of their mandate under the KICA law and the program code for broadcasting in Kenya.”

It said the caution was necessary because the stations broadcast live the March 20 protests by Azimio “in which scenes of violent confrontations between the police and charged opposition party adherents were depicted as the whole country.”

The court largely sided with the stations, ruling that “by invoking the programming code to censure the six stations for their broadcasting of live opposition protests with threats of sanctions under the relevant provisions of the law including revocation of broadcasting license or broadcasting frequencies amounts to an unconstitutional limit of the media houses right under Article 33 of the Constitution.”

It also held that Kenya was party to the international covenant of civil and political rights and the order violated it because citizens were not able to receive information as was.

“The censure was not concerned within any of the four legitimate speech limitation under article 33 (2): propaganda for war, incitement to violence or advocacy for hatred and on this account it is illegal,” the judgement dated October 19 reads.

Even fundamental, the court struck down section 19(a) (b) (c) and (d) of the KICA (broadcasting) regulations 2009, declaring it unconstitutionally limits the freedom of expression, media and information in vague and overboard terms.

It also ordered that the commission reviews the 2019 broadcasting programming code.