, NAIROBI, Kenya, Sept 29 – The switch off of analogue television signals and migration to digital broadcast signal distribution (BSD) that was to take place on Tuesday has been put off for another 90 days.
This is after the Supreme Court set aside the Court of Appeal ruling that had set the migration deadline for September 30 and directed that the warring parties engage in dialogue.
“We are basically saying the interests of this country demand that there be dialogue and consultation because the country is bigger than the interests represented here,” Chief Justice Willy Mutunga explained.
The Communication Authority of Kenya (CA), KTN, NTV and Citizen TV would then, in the course of these consultations, decide on the new switch off date in line with the international deadline of June 17, 2015.
“After 90 days please don’t come here telling us that you can’t sit and talk,” Mutunga cautioned following the directive that they report back to the court at the end of the 90 days.
The directive by the court that the CA reconsider the application by KTN, NTV and Citizen TV for a digital distribution license, Mutunga said, was informed by patriotism.
“We are perturbed by the contents of Wangusi’s affidavit which appears to suggest that SIGNET has ceded its license operations to external corporate entities,” he said.
And to drive the point home, Mutunga quoted the lyrics to Kenyan musician Ken wa Maria’s song, “These are my things, these are our things, and these are the fundamentals.”
The court also directed CA to ensure the BSD license it issued to Pan African Network Group Kenya Limited, and which the Court of Appeal had annulled, “meets the constitutional and statutory requirements.”
This is after it set aside the Court of Appeal annulment of the license on finding that at the time of issuing the license Communication Commission of Kenya (succeeded by CA) was independently constituted.
The Court of Appeal had found that as the license was issued after the August 2010 promulgation of the Constitution which required CCK to be independently constituted as set out in Article 34(5) but it was not as it was government control and therefore had no business issuing the license.
But the Supreme Court was of the opinion that the said Article applied to the Media Council of Kenya, not the CCK and that the CCK was operating under the law that was in place prior to the promulgation of the Constitution which allowed three years for the setting up of the said independent regulator.
The Supreme Court also found that the Court of Appeal erred when it directed that NTV, KTN and Citizen TV be issued broadcast distribution licenses without going through a tendering process.
It also set aside the Supreme Court finding that the television stations’ intellectual property rights had been infringed by GOtv and others who included their stations in their bundles without their consent.
Speaking after the Supreme Court ruling ICT Cabinet Secretary Fred Matiang’i said his ministry would work with all stakeholders to ensure a speedy implementation of the Digital Migration process ahead of the global deadline of June 2015.
“We have taken note of the supreme court directive on the date of digital migration, we will consultatively work with all stakeholders to ensure that a new and hopefully final digital migration timetable is developed within the next 90 days as directed,” he said.
Through their legal representative Paul Muite, the media owners also welcomed the ruling saying that they found the final orders of dialogue with the regulator, “satisfactory.”