The High Court on Friday restrained the Communications Authority of Kenya (CA) from stopping TV stations' live coverage of demonstrations called by Azimio chief Raila Odinga.
The court cited a suit filed by the Law Society of Kenya (LSK), the Katiba Institute and journalists' unions, which it said raises serious issues.
The CA said the six TV stations - NTV, Citizen, K24, KBC, TV47 and Ebru Africa - violated the Programming Code during the coverage of opposition demos on Monday. It wrote to all broadcasters asking them to ensure compliance.
Katiba Institute, a Kenyan civic rights promotion group, then wrote to the authority demanding revocation of the decision, saying the move was unconstitutional and a threat to the media's freedom of expression.
It filed a suit alongside the LSK, the Kenya Union of Journalists, Kenya Editor’s Guild, Kenya Correspondents Association and the Bloggers Association of Kenya.
In his decision on Friday, Justice John Mugwimi Chigiti noted that the case raises weighty and arguable issues against the CA and the Attorney-General.
“Upon perusing the application alongside the annexures, I find that the application raises an urgent and arguable case. It raises weighty issues that shall be heard and determined on merit at the appropriate stage should the court be appropriately moved,” said Justice Chigiti.
He directed the petitioners to furnish the CA and the Attorney-General with the court documents within 14 days, so that they can file their responses, and said the case will be mentioned on May 10 for further directions to be given.
Through lawyers Lempaa Suyianka and Dudley Ochiel, the petitioners argued that the CA’s censure was aimed at limiting the freedoms of expression, information and the media. They also claimed violation of the rules of natural justice.
Urging the court to issue the interim orders, the lawyers said the matter was urgent because the CA had threatened revocation of broadcast licenses or broadcast frequencies of the media houses.
“The CA’s decision could have a chilling effect on media freedom, freedom of information and freedom of expression. Besides, the decision endangers life because it would enable the trigger-happy National Police Service to operate in darkness and police demonstrations without media oversight. The harm to the public interest is real: the urgency is self-evident,” said the lawyers.
The suit was occasioned by a letter by the CA Director-General Ezra Chiloba, claiming that six TV stations including NTV, Citizen, K24, KBC, TV47 and Ebru Africa violated the Programming Code during coverage of the demonstrations.
Mr Chiloba had alleged that the media coverage depicted scenes that could cause panic or incitement to the public, and threaten peace and cohesion in the country.
He asked all broadcasters to ensure compliance, saying it was "imperative all broadcasters exercise caution in live broadcast coverage to avoid scenes that would be detrimental to peace and cohesion".
"Take note that failure to adhere to the outlined obligations shall be acting in breach of license conditions, which shall attract liability under relevant provisions of the law including revocation of broadcast license or/and broadcast frequencies," said Mr Chiloba.
But the petitioners told the court that Article 34(2) declares that the State shall not “exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium”.
They said the Constitution also provides that the State shall not “penalise any person for any opinion or view or the content of any broadcast, publication, or dissemination”.
“The CA’s decision violates the rules of natural justice under Articles 47 and 50 and section 4 of the Fair Administrative Act. None of the six media houses was heard on the decision to censure them,” they said.
“No reasons informed the decision because the CA refused to supply applicants with copies of the letters it alleged it had sent to the six media houses and with minutes or recordings of the CA meeting."
In addition, they said, the decision of CA was ultra vires section 46I of the Kenya Information and Communication Act, 2009.
The said section requires all broadcasters to “gather and present news and information accurately and impartially”; and “make reasonable efforts to present alternative points of view”, either in the same programme or in other programmes, within the period of current interest, when controversial or contentious issues of public interest are discussed”.
