ICT Cabinet Secretary Fred Matiang’i said the Court of Appeal acted in excess of jurisdiction and infringed on his ministry’s mandate when it set a new September 30 deadline.
“The ministry is best placed to determine the actual timelines for analogue switch off. By assuming the powers of the Executive in directing the manner and time within which this process should be undertaken, the Court of Appeal was, on advice of the Attorney General, manifestly in excess of its jurisdiction,” Matiang’i who spoke in the company of AG Githu Muigai said.
And should the verdict be left to stand, he said, it would have, “grave,” consequences on the decisions taken by the Communications Commission of Kenya (CCK) post-promulgation of the Constitution.
“That’s partly why we’re going to the Supreme Court. Essentially if you were to read the judgment carefully it would mean that there would be chaos in the sector quite frankly because it means that even the licensing decisions that have been taken including on the appellants on this particular case would be construed to be unconstitutional and illegal.
“The repercussions of the judgment by the Court of Appeal are too grave to contemplate,” he said.
The Consumer Federation of Kenya (COFEK) Secretary General Stephen Mutoro had called for the CCK to, “rescind all major decisions it has made as the effect of the ruling has the potential to reverse all decisions made by the CCK since August 27, 2010 when the current Constitution was promulgated.”
Muigai added that should Friday’s ruling be left to stand, it would have expensive consequences on the tax payer.
“The court suggested that any license that had initialled to another party could be cancelled and that the government could pay for the cost. I don’t know whether that would be one billion, 10 billion… 20 billion? I’m sorry to say we would have to pay it from national coffers.
“We would have to take money from health, from education, from roads, to pay the investor,” he warned.
Matiang’i added that the court’s directive to issue NTV, KTN and Citizen TV with a digital Broadcast Signal Distribution (BSD) license, without them needing to go through a tendering process, would contravene procurement laws.
“By directing the Communications Authority of Kenya (CCK’s successor) to issue licenses against the said procurement process to persons some of whom had never applied for, the Court of Appeal was, on advice of the Attorney General, manifestly in excess of its jurisdiction,” he said.
And the decision to void the digital BSD license awarded to Pan African Network Group Kenya Limited, he said, would strike fear in the hearts of investors.
“What the ministry and CCK would like to see is a level playing field for everybody. For local investors, for foreign investors, for consumers, for everybody and that is what we would seek to persuade the Supreme Court,” Muigai said.
It was for all these reasons, Matiang’i said, that the Executive would be challenging Judges Roselyn Nambuye, Daniel Musinga and David Maraga’s ruling in its entirety.
They both however stopped short of stating a position on whether the CCK, as constituted at the time it issued Pan African Network Group Kenya Limited a license, was independent of the Executive as envisaged in Article 34 (3) (d) of the Constitution and chose to focus instead on the ramifications of Friday’s ruling.