Why Supreme Court was wrong on signal licence dispute

There is a Welsh proverb to the effect that “the houses of lawyers are roofed with the skins of litigants”.

It is commonplace to deplore litigation; even the law itself does so.

Its best-known device for ending litigation is res judicata, the principle that a court will not allow a matter to be re-litigated once it has been judged on the merits.

In the decision of the Supreme Court in the digital migration case, the court said that having appealed to the Public Procurement Administrative Review Board (PPARB), on the BSD (Broadcast Signal Distributors) licence and lost the appeal, Royal Media Services, the Nation Media Group and the Standard Media Group could not re-litigate the BSD licensing issue.

They faced ‘issue estoppel’, a species of res judicata. The court is wrong on this point but before explaining why, first some clarity on ‘issue estoppel’.

When parties are involved in litigation, their various claims are eventually framed as a series of issues for the court to decide, one after the other.

‘Issue estoppel’ precludes either of the parties involved in such a case from re-litigating any of the issues that has already been decided. Not even if they file a different cause of action.

In effect, the Supreme Court here made the point, implicitly, that even though the three media houses had filed a different cause of action, a constitutional claim, the issue at hand in BSD licensing had been settled against them by the PPARB.

The Supreme Court has got it wrong, again. Even though the Public Procurement Administrative Review Board is bound by the Constitution - as the court says - the board had no jurisdiction to entertain a claim based on the Bill of Rights.

IRRELEVANT POINT OF LAW

The board’s jurisdiction is to hear appeals arising from the Public Procurement and Disposal Act. It does not have any jurisdiction to hear constitutional claims.

Therefore, the Supreme Court’s opinion that the board is bound by the Constitution is a trite but irrelevant point of law. Every body or agency that exercises power under law in Kenya is bound by the Constitution.

All that it means when we say a tribunal is bound by the Constitution is that within its narrow mandate, it is not allowed to act inconsistently with the Constitution.

For example, a procurement agency could not legitimately exclude a bidder because she is a Kenyan Asian or an Ogiek. That would be exactly the sort of invidious discrimination prohibited by the Constitution.

By force of reason, the issue whether the three media houses’ Article 34 rights were violated through the procurement process could not have been before the board for decision.

This is simply because that issue could not, technically, be pleaded before what was clearly a legally incompetent tribunal. What, pray, gives rise to ‘issue estoppel’ then?

MADE AT TRIBUNAL

Framed differently and bluntly, here is the Supreme Court’s conclusion: Having not raised their Article 34 claims in a hearing in which they were not legally entitled to raise it; the three media houses were now confronted with the argument that the fact that they did not raise it in that forum, they now were barred from raising it in both the High Court and the Supreme Court.

It is as if the court was saying that they should have made that claim before that tribunal and having not done so, they are treated as if they had.

This is a variation of the Kafkaesque (overly complex in seemingly pointless, impersonal, and often disturbing way) nightmare that litigants of a former era were confronted with trying to undo the series of ludicrous decisions arising from the Anarita Karimi Njeru case.

Yet for all the court’s exertions, there is good comparative case-law at hand to clear its mind on this point.

In the Canadian case of Shaju vs Canada, Minister of Citizenship & Immigration, Justice Nadon of the Federal Court of Canada pointed out that the whole point of issue estoppel is “to prohibit one party to previous litigation from putting a concluded issue” back “into contention again in newly instituted proceedings taken against the same opponent.”

That point is better developed in the House of Lord’s decision in Carl Zeiss v Rayner & Keeler. Justice Guest said that three points needed to be satisfied before ‘issue estoppel’ could kick in.

One, that the same question was decided before; two, that the judicial decision that creates the issue estoppel was final; three, that the parties to the judicial decision were the same as the parties to the proceedings in which the estoppel is raised.

The Canadian Supreme Court emphatically rounds off the point: Issue estoppel “... applies only in circumstances where it is clear from the facts that the question has already been decided.”

THINGS HAD GONE WRONG

These are stringent standards and the finding of ‘issue estoppel’ in this case meets none of them. The question raised was not the same; no decision on Article 34 and the Constitution was taken and though some parties were the same, others were not.

The point is this: It may well be that the three media houses failed to provide the correct bid bond and that issue worked against them in the appeal before the Public Procurement Administrative Review Board.

But that is a completely different issue from the one in the constitutional application on digital migration.

Many things had gone wrong in the process of making the digital migration. The first is that the Communication Authority of Kenya (CA) has been extremely cack-handed and anti-Kenyan in managing the process.

Secondly, and contrary to all best practices the world over, the authority has favoured and continues to favour pay TV (the option for the elite) against Free-to-Air TV (the option for ordinary folks).

Thirdly, the government had made promises to the three media houses and to the Kenya Broadcasting Corporation (KBC). It has honoured the one to KBC but not the one to the three private media houses.

Fourthly, the government had decided - as a matter of policy - that 30 per cent of equity in BSD licencees must be held by Kenyans. The Communications Commission of Kenya licensed a 100 per cent Chinese-owned outfit, PANG.

MEDIA FREEDOM

Finally, constitutional principles mandate public participation, transparency and equity when public bodies make crucial decisions like those in communications.

This BSD process could hardly pass muster on that criteria, a point the Supreme Court itself made.

And then there is Article 34, with the freedom of media and the right of establishment. The right of establishment surely includes the right not to be dis-established.

Surely, none of these five issues can be said to have been settled by the procurement process. Radio frequencies are not only scarce resources, their ownership and use is integral to state security.

It is partly from this insight that in the US, the Communications Act of 1934 prohibits foreign ownership or voting interests exceeding 25 per cent in US entities that control broadcasting.

In a clarification on this point issued in 2013, the Federal Communications Commission (FCC), allowed that this limit could be passed. Even so, the FCC insists that those wanting to pass this limit must draft a petition to the regulator for a declaratory ruling.

In short, Kenya has done the exact opposite of what the FCC has done, to no obvious advantage to the country or to the public interest.

These are the questions that should have exercised the mind of the court, not mundane queries whether the procurement settled the BSD licensing question. It could not have.

The writer is a constitutional lawyer. [email protected]