It is a big win for media houses in the country after the High Court quashed the Communication Authority of Kenya’s (CA) decision to censure six TV stations for covering anti-government demonstrations that happened in March this year.
The decision announced by former CA Director-General Ezra Chiloba on March 22, 2023, sought to revoke the operating broadcast licenses of six TV stations namely; Citizen, NTV, K24, KBC, TV47 and Ebru Africa over how they covered the mass demonstrations as illegal and unconstitutional.
At the time, Chiloba claimed that the TV stations violated the programming code as the coverage depicted scenes that could cause panic or incitement to the public and threaten peace and cohesion in the country.
A judgement rendered by Justice John Chigiti concurred with the arguments made by the petitioners; Katiba Institute, Law Society of Kenya and journalist unions that CA violated the programming code when it prohibited the media houses from broadcasting the protests live.
While quashing the move, Judge Chigiti termed the decision issued by former CA Director-General Ezra Chiloba as threatening.
In his decision, the Judge found that CA failed to observe basic rules of natural justice and failed to act with procedural fairness towards the media houses when it made the administrative action against them.
"It is my finding that the CA letter dated March 22, 2023, is an embodiment of procedural Impropriety. It is a censure that was generated unfairly on the part of the respondent as the decision-making authority for the non-observance of the rules of natural justice towards one to be affected by the decision and in particular the interested parties and I so hold," Justice Chigiti ruled
"It is my finding that the respondent's letter was a culmination of an illegal and unfair administrative process. It must be quashed," the judge added
He further found that the letter dated March 22, 2023, by CA is illegal since it does not accord with Article 47 as effectuated by the Fair Administrative Action Act 2015.
The judge dismissed the CA arguments that it had done a review of the broadcast coverage of the demonstrations that were earlier held on March 20, 2023, before they made the decision to bar media houses from further covering the protests.
The judge wondered why CA did not summon the media houses to show cause why they should not be sanctioned before it made the unilateral decision to bar them from covering the demonstrations.
"As a result of the flawed administration exercise by the CA, the Kenya Union of Journalists, Kenya Editors Guild, Kenya Correspondents Association and Bloggers Association of Kenya remained in the dark and without any information, material and evidence that authority relied on in making the decision or taking the administrative action," Judge Chigiti stated.
He further noted that CA denied the media houses the right to be heard before they arrived at the decision that they acted in a manner that violated the programming code.
The judge also stated that the notice by CA presented an uncalled-for censure and a threat to the six media houses' freedom of expression.
"It is my finding that the applicants have made out a case that calls for the grant of an order of prohibition and the same is issued against CA prohibiting and/or forbidding and preventing it from demanding the media houses "to take immediate remedial action" since the same was illegally issued," Justice Chigiti ordered.
The court has however directed CA to review the programming code for broadcasting services in Kenya, 2019 under Section 46H(2)(b) of the Kenya Information and Communications Act 2009 within 12 months.
This is after the judge found that the programming code for broadcasting services in Kenya has expired.
The decision by the court comes after the petitioners namely LSK, Katiba Institute, Editors Guild, Kenya Union of Journalists, Kenya Correspondents Association and Bloggers Association of Kenya moved to court to challenge the said letter by CA saying it violated the rules of natural justice.
"None of the six media houses were heard on the decision to censure them and no reasons informed the decision because CA refused to supply them with copies of the letters it alleged it had sent to the six media houses," the petitioners argued in court documents.
They argued that the censure for limiting media houses freedom of expression, information and the media is therefore illegal and unconstitutional.
Through lawyer Dudley Ochiel, the petitioners contend that the CA’s decision is informed by a material error of law as the cited portion (section 10.2.1) of the programming code does not say what CA claims it says.
“The code has expired and has no legal effect under Section 46H(2)(b) of the Kenya Information and Communications Act, 2009 and Section 11(1) and (4) of the Statutory Instruments Act, 2013,” they argue in court documents.
It was their case that Section 46H(2)(b) of KICA requires the CA to review the programming code at least once every two years and the regulatory authority last reviewed the programming code in September 2019 which means the code expired in September 2021, over 18 months ago.
