Media companies have accused a High Court judge of misinterpreting the law on media freedom to dismiss their petition challenging the switch from analogue to digital broadcast.
Nation Media Group, Royal Media Services and Standard Media Group submitted that Mr Justice David Majanja misunderstood their concerns and went ahead to give a judgment that went against constitutional provisions on media freedom.
Through their lawyer Issa Mansur, they argued that the judge erroneously held that they were not entitled to digital licences and frequencies, even after a government taskforce recommended that existing media houses be considered in the issuance of the permits.
“The judge failed to consider that the body which warded the licences was government controlled, which is an express violation of the law. He should have upheld that if the licensing procedure was not in conformity with the Constitutionthen it was invalid,” said Mr Mansur.
He told a three-judge bench of the Court of Appeal that Mr Justice Majanja had a duty to interrogate the composition of the Communications Commission of Kenya (CCK) since licensing of digital broadcasters should not have been their preserve until an independent organisation free from government control was set up.
“What the judge did was like validating CCK’s control over the media. He did not have to interrogate the reasonableness at which the digital licences were issued when there was glaring violation of the Constitution in regard to media rights and freedoms,” said Mr Mansur.
The lawyer submitted that the media houses do not understand the rush by the government on digital migration when the internationally set deadline is June 2015. He said it was wrong for the judge to trample on media rights even if they were not entitled to the licences.
“The judge should have directed the Attorney-General to do the necessary amendments to ensure the switch is in conformity with the Constitution. At the end, we have a self-imposed deadline when we still have enough time to put in place sufficient infrastructure,” said Mr Mansur.
He added that the country will not become an outcast state among other nations if it does not implement the digital migration now.
Mr Mansur said the media houses are ready and willing to roll out the digital broadcast if given the licences and frequencies.
Lawyer Philip Murgor accused the judge of disregarding evidence provided by the media houses to prove there was bribery in issuing the licences. He said the best way would have been to call for cross-examination of the media representatives who made the claims.
“We filed an affidavit stating that the digital licence issued to Star Times was issued through bribery after the company promised to cede five per cent of their shares to government officials but in a total misdirection, the judge struck out the evidence without being asked by any party,” said Mr Murgor.
Mr Murgor said Mr Justice Majanja worked towards making a decision based on his thinking and not the evidence and constitutional violations presented to him.
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