Supreme Court orders CAK to reopen talks on digital migration

The Supreme Court on Monday set aside a ruling by the Appeal Court on digital migration and ordered the Communications Authority of Kenya (CAK) to reopen licensing of Broadcast Signal Distribution for 90 days.

The Court also ordered the regulator and three local media houses to agree on a new timeline on the migration from analogue to digital television broadcast.

The recommended that CAK ensure that the sale of Set Top Boxes (STBs), which are required by viewers to watch the programs transmitted digitally, is open to competition.

It further recommended that the CAK consider requiring the BSD licencees to subsidize the cost of the STBs.

The fight for digital licences has gone through the three major court divisions. The final decision of the Supreme Court was eagerly awaited by media stakeholders and the public.

It started in October last year, when the Nation Media Group, Royal Media Services and Standard Media Group filed a petition at the High Court against the proposed switch to digital television broadcast.

Mr Justice David Majanja dismissed the petition and gave the government the green light to proceed and switch off analogue television TV stations.

COURT OF APPEAL

The media houses went to the Court of Appeal, where judges Roselyn Nambuye, David Maraga and Daniel Musinga ruled that the Communication Commission of Kenya (now called the Communications Authority of Kenya) was not the right body to issue digital broadcast licences and cancelled those issued to the Pan African Network Group-Kenya .

They ordered the government to give the three media houses digital licences and stopped the Chinese-owned StarTimes Television network and GOtv Limited from rebroadcasting programmes generated by the three.

The AG, the Communications Authority, Startimes and GOtv Limited, however, contested the decision at the Supreme Court, saying the appellate judges misinterpreted the Constitution in arriving at the findings and that they had compromised Kenya’s obligation to the international digital convention.

They argued that the judges had exceeded their powers since the court had no power to grant broadcast licences to media houses.

The Supreme Court bench on the matter consists of Chief Justice Willy Mutunga, his deputy, Lady Justice Kalpana Rawal, judges Philip Tunoi, Jackton Ojwang, Mohammed Ibrahim, Smokin Wanjala and Njoki Ndung’u.