Cord camps in Homabay to drum up support for Moses Kajwang, Wetangula declares the contest is between Cord and Jubilee

CORD leader Moses Wetang’ula led ODM campaign rallies on Saturday in search of votes for ODM’s Moses Kajwang’in Ndhiwa Constituency.

Wetang’ula drummed up support forKajwang’  the party's flag bearer ahead of the February 12 by-election.

Speaking during campaign rallies at various points in Ndhiwa constituency, Wetang’ula alleged that the contest for Homa Bay senatorial seat is between the Jubilee Government and CORD.

He accused the ruling coalition of sponsoring some of the candidates contesting the seat on other political parties’ tickets.

The Ford Kenya leader alleged that the Government is planning to make CORD lose the seat in order to reduce its popularity in the area.

“This race is not between Kajwang’ and other candidates but it is between Jubilee and CORD. Electing an ODM candidate will enable us to achieve our ambition of sending the Jubilee Government home,” Wetang’ula said.

He urged residents of Homa Bay to vote for Moses Kajwang’ as a tribute to the late Senator Otieno Kajwang’.

“A vote to Moses is a vote for respect and remembrance to my late brother Otieno Kajwang," he said.

ODM Chairman John Mbadi used the platform to criticize some of the party legislators who are opposed to the party’s choice in the race.

Mbadi said the party will take stern measures against Karachuonyo MP Eng. James Rege and his Rangwe counterparty George Oner for supporting Maendeleo Democratic Party candidate Philip Okundi.

“Let us all support Kajwang’ because this by-election is going to mean a lot for politics of this county. Time has come when we need to forget about information coming from other candidates so that we can maintain political unity we have enjoyed in this county,” Mbadi said.

Senator Elizabeth Ongoro, MPs Tom Kajwang’ (Ruaraka), Chris Wamalwa (Kiminini), Peter Kaluma (Homa Bay Town), Homa Bay Deputy Governor Hamilton Orata, acting ODM Homa Bay branch Chairperson Monica Amolo and Ndhiwa Politician Michael Agwanda condemned the recent violence in which Kajwang’ was injured by youths during a funeral in Kochia, Rangwe Constituency.

A similar rally to drum support for Kajwang in Kasipula and Kabondo Kasipul Constituencies was led by Kakamega Governor Wyclief Oparanya, Kasipul MP Oyugi Magwanga, Homa Bay women rep Gladys Wanga , her Kisumu counterparty Rose Nyamunga and Suna East MP Junet Mohammed.

Oparanya and Magwanga alleged that the Government is scuttling the CORD support in its stronghold by sponsoring candidates to defeat the ODM’s.

“Let everybody understand that we should vote the ODM to shun our enemies,” Oparanya said.

They started their rally from Chabera in Kabondo Kaspul to Oyugis in Kasipul constituencies.

Wentang’ula later disclosed that Wiper leader Kalonzo Musyoka is heading to Homa Bay county on Sunday for a campaign rally in support of Kajwang’ while CORD leader Raila Odinga is expected on Wednesday.

Meanwhile, other senatorial candidates Philip Okundi (Maendeleo Democratic) Hillary Alila (Independent) and Fred Rabongo (National Agenda Party) also proceeded with their campaigns in the county.

Okundi who visited Oyugis town and various parts of Kasipul promised to utilize his network to influence disbursement of more devolved funds to Homa Bay County.

“I will also use my position to foster unity in this county so that we can join our effort in development agenda,” Okundi said.

Alila attended burial of businessman Owiti Odede in Kodera Ragwe village where he promised to use his position in ending perennial water shortage afflicting the county.

“My leadership will ensure creation of industries like that of potatoes to ensure value addition to agricultural produce,” said Alila.

CLICK 

CORD leader Moses Wetang’ula led ODM campaign rallies on Saturday in search of votes for ODM’s Moses Kajwang’in Ndhiwa Constituency.
Wetang’ula drummed up support forKajwang’  the party's flag bearer ahead of the February 12 by-election.
Speaking during campaign rallies at various points in Ndhiwa constituency, Wetang’ula alleged that the contest for Homa Bay senatorial seat is between the Jubilee Government and CORD.
He accused the ruling coalition of sponsoring some of the candidates contesting the seat on other political parties’ tickets.
The Ford Kenya leader alleged that the Government is planning to make CORD lose the seat in order to reduce its popularity in the area.
“This race is not between Kajwang’ and other candidates but it is between Jubilee and CORD. Electing an ODM candidate will enable us to achieve our ambition of sending the Jubilee Government home,” Wetang’ula said.
He urged residents of Homa Bay to vote for Moses Kajwang’ as a tribute to the late Senator Otieno Kajwang’.
“A vote to Moses is a vote for respect and remembrance to my late brother Otieno Kajwang," he said.
ODM Chairman John Mbadi used the platform to criticize some of the party legislators who are opposed to the party’s choice in the race.
Mbadi said the party will take stern measures against Karachuonyo MP Eng. James Rege and his Rangwe counterparty George Oner for supporting Maendeleo Democratic Party candidate Philip Okundi.
“Let us all support Kajwang’ because this by-election is going to mean a lot for politics of this county. Time has come when we need to forget about information coming from other candidates so that we can maintain political unity we have enjoyed in this county,” Mbadi said.
Senator Elizabeth Ongoro, MPs Tom Kajwang’ (Ruaraka), Chris Wamalwa (Kiminini), Peter Kaluma (Homa Bay Town), Homa Bay Deputy Governor Hamilton Orata, acting ODM Homa Bay branch Chairperson Monica Amolo and Ndhiwa Politician Michael Agwanda condemned the recent violence in which Kajwang’ was injured by youths during a funeral in Kochia, Rangwe Constituency.
A similar rally to drum support for Kajwang in Kasipula and Kabondo Kasipul Constituencies was led by Kakamega Governor Wyclief Oparanya, Kasipul MP Oyugi Magwanga, Homa Bay women rep Gladys Wanga , her Kisumu counterparty Rose Nyamunga and Suna East MP Junet Mohammed.
Oparanya and Magwanga alleged that the Government is scuttling the CORD support in its stronghold by sponsoring candidates to defeat the ODM’s.
“Let everybody understand that we should vote the ODM to shun our enemies,” Oparanya said.
They started their rally from Chabera in Kabondo Kaspul to Oyugis in Kasipul constituencies.
Wentang’ula later disclosed that Wiper leader Kalonzo Musyoka is heading to Homa Bay county on Sunday for a campaign rally in support of Kajwang’ while CORD leader Raila Odinga is expected on Wednesday.
Meanwhile, other senatorial candidates Philip Okundi (Maendeleo Democratic) Hillary Alila (Independent) and Fred Rabongo (National Agenda Party) also proceeded with their campaigns in the county.
Okundi who visited Oyugis town and various parts of Kasipul promised to utilize his network to influence disbursement of more devolved funds to Homa Bay County.
“I will also use my position to foster unity in this county so that we can join our effort in development agenda,” Okundi said.
Alila attended burial of businessman Owiti Odede in Kodera Ragwe village where he promised to use his position in ending perennial water shortage afflicting the county.
“My leadership will ensure creation of industries like that of potatoes to ensure value addition to agricultural produce,” said Alila.
- See more at: http://www.the-star.co.ke/news/cord-camps-homabay-drum-support-moses-kajwang-wetangula-declares-contest-between-cord-and#sthash.i8VALRsX.UnhzQglO.dpuf

Tuesday, January 27, 2015 Dad, you will never be forgotten

By Maryanne Waweru maryanne@mummytales.com

 

 

Hellen Mungai talks about the foundation she set up in memory of her father   

In Summary

• When Hellen Mungai’s father developed a ‘strange’ illness, those who knew him believed that he was bewitched.

Hellen Mungai, 32, has fond memories of her childhood growing up in Kinoo, in the outskirts of Nairobi.

She particularly remembers her father’s whole-hearted dedication in raising her and her younger brother, Simon.

Her parents separated when she and her brother were young, and her father took full custody of them, though they later reunited when her father fell sick.

“My dad loved spending time with us, and would take us to school every morning, pick us up in the evening, and then return to work,” says Hellen, who adds that he was the kind of father who relishes getting down on his knees and playing childish games with his children. He particularly enjoyed chasing them around the house.

“He was quite active, and enjoyed outdoor games, but one of his favourite activities was chasing my brother and me around the house. He was a very energetic person,” she remembers.

One day, as father and children played, he tripped and fell, but instead of quickly getting up as he would have, he struggled to get to his feet, eventually asking his children to help him up.

After that incident, Hellen began to notice more alarming changes in her father, who was only 42 years then.

“He generally became slower in everything he did. He would take longer in the bathroom, drive slower, and he did not walk as fast as before. As days went by, he stopped playing many of the physically engaging games we often played, instead preferring to relax in the sitting room.”

Humbling experience

Unbeknown to Hellen at that time, her father had been diagnosed with Parkinson’s disease, two years before this incident. Parkinson’s disease is a progressive disorder of the nervous system that affects one’s ability to coordinate movement.

With time, he was no longer able to walk or drive on his own, and his speech also became slurred, making it difficult for him to express himself.

By then, Hellen had completed high school, and was waiting to join the University of Nairobi, where she had been called to study Science.

While waiting to join the university, she decided to help out her father at his audit firm: “I wanted to be close to him,” she says.

“By then, he could not lift a spoon, so I had to feed him, as well as help him up and down the stairs.”

At home, Hellen and her brother would take turns helping their father dress, brush his teeth, and everything else he was unable to do on his own.

“It was a painful experience watching our father, our once strong and energetic patriarch, now unable to do some of the things that just a few years before, he had been able to do effortlessly. He was no longer the man we knew.”

When Hellen joined university, though she had looked forward to the freedom that is said to come with being a residential student, she choose to be a day scholar so that she could be near her father.

By then, he had stopped going to work since he was too weak. One of the activities she greatly enjoyed was reading books to him, just as he had done with them in their childhood.

“Many times as I read out to him, he would interrupt me and ask me to tell ‘those’ people to stop coming for him. He would order me to chase ‘them’ away. This terrified me, since I feared my father was losing his mind. However, I researched online, and found out that one of the side effects of the drugs he was taking was hallucinations.”
But that was not all. Because Parkinson’s disease affects the nervous system, there were those who assumed he was a drunk, due to the tremors in his hands, legs and his slow, unstable walk.
Since inactivity would have made his condition worse, Hellen would often take her father for walks with around the neighbourhood, besides taking him to hospital for reviews and check-up.
Several times, passers-by would make fun of her father, assuming that he had taken too much alcohol, something that broke Hellen’s heart.
“I was tempted to stop and correct them, but since that would not have been practical, I swallowed my sadness and moved on,” she says.
But what was even worse is the fact that some relatives linked his illness to witchcraft.
“Because of the loss of memory, the hallucinations, uncoordinated movements, the drooling and the slurred speech, people assumed he had been bewitched, but what hurt even more was that they did not bother to find out from us what was ailing him,” says Hellen.

At home, the Mwithaga family had to make adjustments to accommodate his illness.

“We remodelled the bathroom to create handle bars that he could hold onto, to prevent him from slipping and falling down as he had done many times before. We also created a special toilet for him with a raised seat, and got him an orthopaedic mattress to help him sleep more comfortably, and when he became bedridden, we had to buy him adult diapers.”

Hellen says the financial expenses of her dad’s condition took a heavy toll on their family.

“Most insurance providers don’t cover chronic or pre-existing conditions. All medical bills were paid from his personal savings. The tests, the drugs and other needs were very costly. He also had to see a neurosurgeon – every visit cost Sh3, 000. The adult diapers were also quite expensive,” she says.

Hellen describes each day as one filled with worry.

“As I watched him slowly degenerate, I would always ask myself how much more time we had with him. One of the things I fervently prayed about was that he would live long enough to walk me down the aisle.”

Dream come true

It therefore came as a great relief when in 2008, Hellen’s father witnessed her take her wedding vows to her husband, Zack Mungai.

“I cannot describe that feeling of having my father walk me down the aisle, and even though it was me pushing his wheelchair, it was a bitter-sweet moment for me, since one of my greatest desires had come to be.”

Her father, though bedridden by then, had mustered enough strength to sit on a wheelchair to witness his only daughter’s say ‘I do’. Even though he only managed to attend the church ceremony, Hellen was nevertheless grateful that it was he who had given her away.

Two years later, on 23 July 2010, Hellen’s father passed away peacefully in his sleep at home. He died on his 58th birthday.

In memory of my father

As her father’s disease progressed, Hellen did as much research as possible about the disease, but the only information she got was foreign-based.

“I also tried looking for a support group which we could join, but there was none. I also tried searching for a family in Kenya that was caring for, or had cared for someone with Parkinson’s disease so that we could learn more about it and be encouraged by our similar experiences, but I found none.”

This is what prompted Hellen to initiate a foundation through which she would help create awareness about the disease and bring together a Parkinson’s community.

In 2012 - two years after her father’s death, Hellen actualised her goal and registered the Africa Parkinson’s Disease Foundation.

Blow as acting Konza techno city boss quits

Mr Ngumi said Dr Adeya-We ya had performed well despite being in an acting capacity for the

Konza Technopolis Development Authority acting chief executive Catherine Adeya-Weya during a press conference in Nairobi on January 27, 2015, when she announced she was leaving. PHOTO | SALATON NJAU |

Posted  Tuesday, January 27, 2015 | 

A top official who has been at the helm of the Konza Techno City project has opted out amid claims of resource constraints and slow progress.

Dr Catherine Adeya-Weya, who has been the acting chief executive officer of the Konza Technopolis Development Authority for two years, said she had decided to quit and let someone else come in and lead the project.

It was, however, clear from her statements that bureaucratic tendering, resource constraints and the slow pace of takeoff had largely influenced her decision.

“I just felt someone else needs to take over this project after acting for almost two years. I may have considered staying if confirmed, but I may not have wanted it. For a project of this magnitude, we require the right calibre of staff, and a proper and sufficient recurrent budget.

‘‘What I was being paid as chief executive was less than what I used to earn in my former role in the private sector and so it is hard to attract the high calibre staff with that remuneration,” Dr Adeya-Weya said at a joint press conference in Nairobi with board chairman, Mr John Ngumi, on Tuesday.

PERFORMED WELL

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Mr Ngumi said Dr Adeya-We ya had performed well despite being in an acting capacity for the entire period.

He, however, added that the authority was prepared to continue with the little available resources since insufficient funding was a normal challenge in all government projects.

The chief executive’s term was to end in February, with an option to apply when the position was announced in November last year.

She, however, chose not to, sparking speculations around her withdrawal from the team she has led for months.

Mr Ngumi said: “In my view, Catherine has had one of the toughest jobs. Anybody who has worked in the private sector knows how hard it is to start a startup. It is harder in the public sector where you have all manner of stakeholders, and you got to deal with constraints and criticism.

“She is an example of what we should have in public service and we, as the board, would have loved her to apply. I have implored her to remain involved in Konza at advisory role to the project.”

Erasing stereotypes about Africa

The West’s politics of pity towards Africa relies on some easily available stereotypes that are ultimately offensive, inaccurate and help perpetuate fundamental ignorance that feeds a certain Western agenda. Here are some of the most common as satirised by James Wan. Just like other injustices against the people of Africa, this wilful pigeonholing needs to be eradicated. - See more at: http://newafricanmagazine.com/erasing-stereotypes-africa/#sthash.j52U5R3F.dpuf

The victim
Welcome to Africa, where everyone is starving, emaciated, diseased and dying. Where “the only water flowing is the bitter sting of tears”, and the only thing that grows from the arid ground is the thorny rose of despair. Welcome to the cradle of humanity, still frozen in time, where the innocent child-like masses are passive, helpless and too exhausted to even swat away the flies from their eyes.

The warlord
Welcome to Africa, where war reigns, the only rain is of falling bullets, and wearing an AK-47 across your bare chest never goes out of fashion. Where militias with wild eyes, bared teeth and voodoo armour that stops them being killed roam the bush day and night. Welcome to a world of evil, dark-skinned Rambos.

The noble savage
Welcome to Africa, where all those ancient values that you cherish and that were so ruthlessly destroyed by pesky “modernity”, remain pure, untouched and still innocent.  Where tall old men wander the savannah in exotic robes thinking wise thoughts, and villagers gather round to perform strange (but totally unthreatening) rituals and dance joyously at any occasion. Breathe in that nobility of spirit as the sun sets across the plains, silhouetting that grand old baobab tree.

The grateful child
Welcome to Africa, where the pocket money of faraway donors has rescued the once suffering masses, where those passive glares have been replaced with children’s toothy smiles, and their tears of despair are now tears of joy and gratitude. And all because there is a well or a school or a clinic where once there was none. Africa has been fixed and boy is it happy, thankful and indebted!

The witchdoctor
Welcome to Africa, where the only source of power is black magic, where witchdoctors shake monkey bones in the night to ward away evil spirits, and body parts are harvested for ancient malevolent rituals. Where the masses cower under the spell of an unscrupulous voodoo shaman and sadly there is no education to teach them any better.

The corrupt suitWelcome to Africa, where those in power stay in power by hook or by crook and enrich themselves, their families and their tribes in the process. Where resources are abundant and possibilities are endless, but where Africans in suits can’t help but loot. They all steal with a smile, but stay number one by the gun.

The bogeyman
Welcome to Africa, that scary world where – if you grew up in the diaspora – Mama threatens to send you when you misbehave. Where your cousins are lucky to get a meal, where your grandparents toiled in ways you could never imagine so your parents could escape, and where the kids certainly don’t have the games and gadgets you take for granted.

The miracle
Welcome to Africa, where everything is fine! Actually, it’s great. Take everything you thought you knew about the continent, all the poverty, misery and disease, and flip it. Economies are booming, everyone’s getting rich, and all the news is good news. Africa is Rising. End of.

- See more at: http://newafricanmagazine.com/erasing-stereotypes-africa/#sthash.j52U5R3F.dpuf

The victim
Welcome to Africa, where everyone is starving, emaciated, diseased and dying. Where “the only water flowing is the bitter sting of tears”, and the only thing that grows from the arid ground is the thorny rose of despair. Welcome to the cradle of humanity, still frozen in time, where the innocent child-like masses are passive, helpless and too exhausted to even swat away the flies from their eyes.
The warlord
Welcome to Africa, where war reigns, the only rain is of falling bullets, and wearing an AK-47 across your bare chest never goes out of fashion. Where militias with wild eyes, bared teeth and voodoo armour that stops them being killed roam the bush day and night. Welcome to a world of evil, dark-skinned Rambos.
The noble savage
Welcome to Africa, where all those ancient values that you cherish and that were so ruthlessly destroyed by pesky “modernity”, remain pure, untouched and still innocent.  Where tall old men wander the savannah in exotic robes thinking wise thoughts, and villagers gather round to perform strange (but totally unthreatening) rituals and dance joyously at any occasion. Breathe in that nobility of spirit as the sun sets across the plains, silhouetting that grand old baobab tree.
The grateful child
Welcome to Africa, where the pocket money of faraway donors has rescued the once suffering masses, where those passive glares have been replaced with children’s toothy smiles, and their tears of despair are now tears of joy and gratitude. And all because there is a well or a school or a clinic where once there was none. Africa has been fixed and boy is it happy, thankful and indebted!
The witchdoctor
Welcome to Africa, where the only source of power is black magic, where witchdoctors shake monkey bones in the night to ward away evil spirits, and body parts are harvested for ancient malevolent rituals. Where the masses cower under the spell of an unscrupulous voodoo shaman and sadly there is no education to teach them any better.
The corrupt suitWelcome to Africa, where those in power stay in power by hook or by crook and enrich themselves, their families and their tribes in the process. Where resources are abundant and possibilities are endless, but where Africans in suits can’t help but loot. They all steal with a smile, but stay number one by the gun.
The bogeyman
Welcome to Africa, that scary world where – if you grew up in the diaspora – Mama threatens to send you when you misbehave. Where your cousins are lucky to get a meal, where your grandparents toiled in ways you could never imagine so your parents could escape, and where the kids certainly don’t have the games and gadgets you take for granted.
The miracle
Welcome to Africa, where everything is fine! Actually, it’s great. Take everything you thought you knew about the continent, all the poverty, misery and disease, and flip it. Economies are booming, everyone’s getting rich, and all the news is good news. Africa is Rising. End of.
- See more at: http://newafricanmagazine.com/erasing-stereotypes-africa/#sthash.j52U5R3F.dpuf

Bride dumped 24 hours after marriage ceremony

By Mirror Updated Tuesday, January 27th 2015 at 10:42 GMT +3

Your are here » Home » Crazy World Bride dumped 24 hours after marriage ceremony By Mirror Updated Tuesday, January 27th 2015 at 10:42 GMT +3 Share this story: Gambia: A young bride has claimed her husband was only interested in her to get a visa. 38-year-old dog lover Michelle's marriage ended the day after she and her husband renewed their vows when she discovered he had fathered someone else's child. After the pair got together they had a whirlwind romance which soon saw them trying for a baby. She said: "He was gentle, quiet, caring, charming. Unlike other men." Michelle's brother-in-Law Iain was also impressed, in the documentary he adds: "He introduced me to his family and he was really caring." Michelle told the Channel 5 documentary Got Hitched, Got Ditched that things started to crumble when she was whisked away to Gambia to be married. Due to the distance none of her family could attend. The whirlwind romance soon went downhill when the special day didn't go as planned. "It was nice but scary because there were hundreds of people there that I didn't know." When they returned they went for IVF to try for a baby but things didn't work out after the third attempt. Before she knew it Michelle's partner was soon going out all the time and then a mystery woman was on the scene - who he said was his cousin. After seeing them together on Facebook Michelle was told that the woman in question was her partner's cousin.

She said: "That's when I found pictures of him with a baby on someone else on Facebook. Everyone else was saying congratulations to him." At that point her partner confessed that the baby was indeed his. Whilst Michelle was desperate to have a baby her husband had fathered a child with someone else. "Something blinded me, I just loved him so much," she said, after forgiving him and deciding to renew their wedding vows. Watch the video above as Michelle's worse nightmare came true. Within 24 hours of renewing their vows her husband had disappeared. "I found out that he got his visa through on the July... I felt like I was used for that. I never thought we'd get divorced." Since the show was made Michelle's ex said: "Yes Michelle thought my other woman was my cousin. I'm no longer with her... I'm with someone else." Also in the episode, there are other marriages that have gone wrong before they had barely started.

click

Your are here » Home » Crazy World Bride dumped 24 hours after marriage ceremony By Mirror Updated Tuesday, January 27th 2015 at 10:42 GMT +3 Share this story: Gambia: A young bride has claimed her husband was only interested in her to get a visa. 38-year-old dog lover Michelle's marriage ended the day after she and her husband renewed their vows when she discovered he had fathered someone else's child. After the pair got together they had a whirlwind romance which soon saw them trying for a baby. She said: "He was gentle, quiet, caring, charming. Unlike other men." Michelle's brother-in-Law Iain was also impressed, in the documentary he adds: "He introduced me to his family and he was really caring." Michelle told the Channel 5 documentary Got Hitched, Got Ditched that things started to crumble when she was whisked away to Gambia to be married. Due to the distance none of her family could attend. The whirlwind romance soon went downhill when the special day didn't go as planned. "It was nice but scary because there were hundreds of people there that I didn't know." When they returned they went for IVF to try for a baby but things didn't work out after the third attempt. Before she knew it Michelle's partner was soon going out all the time and then a mystery woman was on the scene - who he said was his cousin. After seeing them together on Facebook Michelle was told that the woman in question was her partner's cousin.
Read more at: http://www.standardmedia.co.ke/lifestyle/article/2000149416/bride-dumped-24-hours-after-marriage-ceremony

Saturday, January 24, 2015 It is not yet Uhuru for the President over poll violence

 

Fergal Gaynor (left), the lawyer for the 2007-2008 post-election violence victims, and ICC Prosecutor Fatou Bensouda. Indeed, the dropping of Mr Kenyatta’s case and the one against Sudanese President Omar el-Bashir in quick succession should prompt a rethink at the ICC on whether prosecuting a sitting president is tenable. FILE PHOTOS | NATION MEDIA GROUP  

In Summary

• From reading the report, one gets the sense that if Ms Bensouda found life hard under the Kibaki administration, she surely didn’t get much joy dealing with a government led by Mr Kenyatta whom she wanted locked up in jail.
• It is difficult to tell what Fatou Bensouda, who succeeded Louis Moreno-Ocampo as ICC chief prosecutor, brought to this case other than her common lamentations about witness bribery.
• Indeed, the dropping of Mr Kenyatta’s case and the one against Sudanese President Omar el-Bashir in quick succession should prompt a rethink at the ICC on whether prosecuting a sitting president is tenable.

As long as the Uhuru Kenyatta case at the International Criminal Court (ICC) didn’t end with a straight acquittal, it was always going to return to haunt the President some day.

Well, feeling haunted — to the extent of losing sleep, literally — isn’t exactly the emotion you expect the President to have right now, having fought for years to prove his innocence in court and got elected to the highest office in the land in spite of the crimes against humanity charges anyway.

But the quick-fire response by Mr Kenyatta’s legal team to the damning report of the prosecutor’s case released last week at least shows that the President still finds this issue a tad too touchy.

And that is despite the fact that the heavily redacted report, made public following a successful application by the victims’ lawyer in the case, reveals little more than we already knew.

Allegations of a campaign to eliminate key members of the Mungiki gang involved in the planning and execution of killings, rape and displacement of populations in Nakuru and Naivasha have been in public domain since the Waki Commission’s report six years ago.

COMMON LAMENTATIONS

It is difficult to tell what Fatou Bensouda, who succeeded Louis Moreno-Ocampo as ICC chief prosecutor, brought to this case other than her common lamentations about witness bribery.

But the report has no doubt done enough to strengthen Ms Bensouda’s narrative that the government’s non-cooperation and obstructionist tendencies, rather than Mr Kenyatta’s innocence in the post-election violence, made her case to collapse.

The linking of some people at the heart of power with the planning of the violence and later the Mungiki elimination and witness bribery campaign paints the picture of a dangerous investigations jungle in which the prosecutor had absolutely no chance of nailing anyone.

From reading the report, one gets the sense that if Ms Bensouda found life hard under the Kibaki administration, she surely didn’t get much joy dealing with a government led by Mr Kenyatta whom she wanted locked up in jail.

Indeed, the dropping of Mr Kenyatta’s case and the one against Sudanese President Omar el-Bashir in quick succession should prompt a rethink at the ICC on whether prosecuting a sitting president is tenable.

But the fleeting nature of power and the absence of closure in these cases should worry the former indictees as well. Recent events have shown that cases about mass killings and rapes don’t end so fast as long as there are human rights advocates and lawyers willing to seek justice for survivors.

With Kenya particularly having a robust human rights movement, it is unimaginable that Mr Kenyatta’s case will not find its way back in the courts in some form or shape in future.

Otieno Otieno is chief sub-editor, Business Daily. jkotieno@ke.nationmedia.com. @otienootieno

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Jubilee loser in Kajiado Central by-election nomination defects to ODM

By WILFRED AYAGA
Read more at: http://www.standardmedia.co.ke/article/2000149313/jubilee-loser-in-kajiado-central-nomination-defects-to-odm/

By WILFRED AYAGA
Read more at: http://www.standardmedia.co.ke/article/2000149313/jubilee-loser-in-kajiado-central-nomination-defects-to-odm/

 26.01.2015

By WILFRED AYAGA

KAJIADO, KENYA: The stakes in the Kajiado Central by-election have gone higher after one of the losers in the Jubilee Alliance Party primaries defected to the rival Orange Democratic Movement (ODM). Memusi Kanchori jumped ship to ODM, claiming that the Jubilee nominations in which he lost to Patrick Tutui were shambolic and that he will lead his supporters to the Opposition party in protest. "We are disappointed by the way the nominations were conducted. We expected the nominations to be free and fair, but it turned out into a shambolic exercise. We have now agreed with my people to move to ODM where we belonged in the first place," Kanchori said at Orange House where he was received by party officials. Kanchori garnered 10,100 votes against Tutui's 10,502 during the jubilee nominations. The Kajiado Central seat was left vacant following the appointment of Joseph Nkaissery to the cabinet. ODM Secretary General, Ababu Namwamba warned Nkaissery against interfering in the by-election and claimed that Kanchori’s defection is a sign that the party still enjoys support in the constituency with over 38,000 registered voters. "We would like to welcome Kanchori to the party, but also tell Nkaissery that he should respect the party that took him to Parliament. Even as he settles in his news position in government, let him not disturb our party," said Namwamba while receiving Kanchori. See also: Jubilee Alliance Party savours success in nominations The defection is likely to send the Jubilee coalition back to the drawing board, as it seeks to consolidate its support in the constituency. Kanchori will on the other hand be hoping that his support during the nomination will translate into votes for the Orange Party. He has already won the backing of Captain Antony Kiroken who was third in the Jubilee nominations, with 7,666 votes.
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Digital migration: The what and why

 

From left: Communications Authority of Kenya chairman Ben Gituku, director frequency spectrum management Stanley Kibe, director general Francis Wangusi and Information Communication and Technology cabinet secretary Dr Fred Matiang'i. FILE | NATION MEDIA GROUP  

In Summary

• The regulator has harmed the public interest, first by ignoring mandatory constitutional principles, then by taking a scarce national resource – radio frequencies – and handing the bulk of these frequencies to foreigners.
• From data downloaded from the CCK website but subsequently removed – perhaps because of the Supreme Court case – the Communications Authority of Kenya has allotted the lion’s share of frequencies, 120 in total, to the wholly owned Chinese company, PANG. KBC, the public broadcaster, was allotted only 54.
• Why did the Kenya Government depart from its explicit commitment that at least 30 pc equity in a BSD licencee must be held by locals?

“Next to sound judgment, diamonds and pearls are the rarest of things in the world,” thus declared Jean de la Bruyere, French philosopher and moralist.

If so, then perhaps Kenyans should not be surprised that even though the country is scheduled to migrate to the digital platform by June this year, the process has sputtered along and nearly stalled because of a series of bad decisions by the Communications Authority of Kenya (CAK) together with its predecessor, the Communications Commission of Kenya (CCK), and an even worse judgment by the Supreme Court of Kenya.

This article explains why and how both the decisions of the regulator and the judgment of the Supreme Court are mistaken and why they are holding back digital migration. 

The regulator has harmed the public interest, first by ignoring mandatory constitutional principles, then by taking a scarce national resource – radio frequencies – and handing the bulk of these frequencies to foreigners contrary to government policy and to best practice the world over, and then, by taking decisions in a manner that is not transparent, principled or accountable.

When these decisions were challenged in court, the Supreme Court compounded the original sin with a patchwork judgment that restrictively and narrowly read key articles in the Constitution on media freedom, misstated crucial elements of the law on copyright, broadcasting and the nature and scope of constitutional remedies.

This article and the next one on article 34 of the Constitution explain digital migration, why it matters and points out some of the pressing questions that the regulator must answer.

PRESSING QUESTIONS
First the basics: Why digital migration matters. Digital migration is the process of moving Kenya’s analogue telecommunications system to a digital platform.

The basic idea is simple: Whether one uses an analogue or a digital platform the thing is that in both information – sound or pictures – is transmitted as an electric signal.

In analogue, however, information is translated into electric pulses that are continuous whilst in digital transmission, information is translated into discrete ones and zeros.

Ignoring the physics, the digital advantage lies in the fact that images and data can be compressed. This allows a station to broadcast more channels on the same bandwidth: for one frequency in analogue the consumer gets one TV service, for the same frequency in digital, the consumer gets 15 standard definition TV services.

To use a physical image: Think of a general trying to march his soldiers through the narrow gates of ancient Baghdad. In analogue, he can only move one soldier at a time through the narrow doorway.

In digital, he has discovered a revolutionary new trick that allows him to compress his soldiers which then allows him to move 15 soldiers at a time through the same narrow doorway.

Where he once moved one soldier a minute, he now moves 15 a minute. Consider how many soldiers he will get into Baghdad in an hour. Applied to broadcasting, the benefits are obvious: multiple TV stations transmitted in the same geographical area can operate on the same frequency without interference.

This means that moving from analogue frees up valuable spectrum for re-allocation to more consumers. There are many users of the radio spectrum: the military, the police, telephone companies, radio and TV, emergency services, sports (such as Safari Rally) and so forth.

The controversy in Kenya so far is mainly about broadcasting, not the other users. Your TV and radio programmes are relayed to your home through one of three possible methods of transmission: terrestrial broadcasting, satellite broadcasting and cable based broadcasting all of which can be both analogue or digital.

Most broadcasting in Kenya is terrestrial, meaning that Kenyans receive their TV and radio programmes through a network of transmission and booster towers.

Part of the reason for this is that there are many things that interfere with radio and TV broadcasts: some radio waves are absorbed in the atmosphere, others are degraded by weather conditions and more are blocked by hills and mountains and other features in the terrain.

This is part of the reason the towers are placed on hill-tops. The frequencies used for TV and radio broadcasting are, in turn, calibrated in Hertz and are in two wave bands named either as VHF (Very High Frequency – from 30 megahertz to 300 megahertz) or UHF (Ultra High Frequencies from 300 megahertz to 3 gigahertz).

The background to the digital migration now taking place is in Kenya’s international commitments. Globally, radio spectrum is shared under the International Telecommunications’ Union, a regulatory body organised into three regions under which Kenya falls in region 3, Africa and the Middle East.

In the early 2000s, countries in regions 1 and 3 decided to shift to digital migration in the VHF and UHF broadcasting band that they have been using for analogue broadcasting.

Working under the Regional Radio Communication Conference (RRC) they held two sessions first in 2004 and then in 2006 out of which came a Regional Agreement on transiting to digital terrestrial broadcasting.

Under that Agreement, the transition period would end on the 17th of June 2015. After that date analogue TV transmissions would not be allowed and would also not be protected from harmful interference.

This means that when the deadline comes on the 17th of June 2015 those who will not have made the switch-over from analogue risk the danger of interference with or from neighbours, a breach of the 2006 Agreement and ITU Radio Regulations.

That then is the international position. The case in court arises from the steps the Kenya Government has taken to implement those international obligations.

In 2006, the government formulated the National Information and Communications Technology (ICT) Policy. Shortly thereafter, in 2007, it set up a National Digital Migration Taskforce whose report was meant to be the digital transition blueprint.

According to both documents, the goal is orderly digital migration; protection of the public interest; inclusion of nationals in all digital spaces and efficient use of the Radio Spectrum.

A Digital Transition Committee (DTC) was then created with a mandate to manage the migration process; license Broadcast Signal Distributors and initiate a phased-in analogue switch-off from 1st July 2012. The facts giving rise to the digital migration case are straightforward.

ANALOGUE SWITCH-OFF
Before explaining how the dispute arose, it is important to understand the impact of digital migration on broadcasting. Given the significant efficiency gains arising from moving to a digital platform, allocating individual frequencies to broadcasters was not considered reasonable: frequencies are scarce national resources, they should not be squandered through inefficient allocation.

To ensure efficiency, the government proposed to split broadcasting into two: Content Developers and Signal Distributors. The content developer would now be the broadcaster and would therefore develop or assemble content. 

That content would then be carried by a licensed Broadcast Signal Distributor to the end consumer. It is the BSD firm to which frequencies would be allotted. 

On the consumer end, anyone who still had an analogue TV would then have to buy a set-top box which would ensure that digital signal can be received on analogue sets.

Under the new arrangement the government said that broadcasters – that is content developers – would be separated from signal distributors, termed BSD licencees.

But government also recognised that other important interests were at stake. Both the policy and the Task Force Report recognised the public interest in fair frequency distribution and the sunk costs already borne by the existing broadcasters who had historically invested in the analogue infrastructure.

For this reason, government policy was to develop “broadcasting services that reflect a sense of Kenyan identity, character, cultural diversity and expression through the development of appropriate local content.” It also undertook to encourage “a broadcasting industry that is efficient, competitive and responsive to audience needs” and, to allocate “frequencies through an equitable process.”

Within that framework, efforts would be made to reduce the cost of migration by using “the existing designated transmitting analogue sites and infrastructure ... for digital transmission”.

Crucially, the Task Force also proposed that the “existing infrastructure owners” be permitted to “enter into agreements with signal distributors and future infrastructure investors regarding integration of their facilities into the signal distribution network.”  

Most important for the digital migration case, the Task Force asked that “incumbent broadcasters be allowed to form an independent company licensed to run the signal distribution services.”

In order to ensure national interest any firms licensed to be Broadcast Signal Distributors were to have at least 30 pc equity participation by locals. The public broadcaster, the Kenya Broadcasting Corporation (KBC) was to be granted a BSD licence as a matter of course.

From this moment, though, things began to go wrong: a consultative effort to enact a new media law somehow got scuttled; a digital migration pre-test went awry after disagreements over copyright between the private media houses and the public broadcaster.

And, finally, when the BSD licensing process finally got under way the CCK honoured few of the promises and commitments made in the ICT policy and the Report of the Task Force.

In spite of the promise to grant local media houses a BSD licence, the CCK decided to allocate BSD licences through public procurement. The tendering process started in February 2011.

The Royal Media Company, the Nation Media Group and the Standard Media Group then formed a consortium but this was knocked out early on a technicality, namely, that their bid bond was less than that asked for.

The result was that Chinese owned company, the Pan Africa Network Group (Kenya) Co Ltd, was licensed as a BSD carrier in October 2011.

Also licensed along with PANG but without going through procurement was the KBC owned BSD carrier, SIGNET. The losing local consortium then appealed to the Public Procurement Administrative Review Board (PPARB) and lost, again.

KNOCKED OUT
Reviewing matters to this point the key issues can be shortly summarised. Why did the Kenya Government depart from its explicit commitment that at least 30 pc equity in a BSD licencee must be held by locals?

Why did the government allow a company associated with PANG, StarTimes TV, to be a broadcaster, having made a commitment to split content development from carrier services? Looking at subsequent developments only raises more questions.

From data downloaded from the CCK website but subsequently removed – perhaps because of the Supreme Court case – the Communications Authority of Kenya has allotted the lion’s share of frequencies, 120 in total, to the wholly owned Chinese company, PANG. KBC, the public broadcaster, was allotted only 54.

Lancia Media was allocated 11. GoTV has 5 and ADNL, a consortium owned by the three media houses, has 21. This means that of the allocated frequencies PANG has 56.87 pc covering a total of 50 sites of the 112 sites for which frequencies have been allocated. This means that PANG has 57 pc of the frequencies and 47 pc of the sites so far covered.

As for the policy decision to promote local content, the CCK decision was bizarre. It wrote a letter requiring pay TV stations including StarTimes and Go-TV (owned by Multichoice) to carry the content of local Free to Air Television stations under the guise of what broadcasters call a “must carry” rule.  That rule and its meaning have been discussed in a companion article.

Tomorrow: Freedom of media in the courts: Is article 34 now dead?

The writer is a constitutional lawyer. mainawaciira@gmail.com

Freedom of media in court: Is Article 34 of the Constitution now dead?

In Summary

• The appellate court held that the three media houses had a legitimate expectation that they would get the BSD licence, partly because of their massive investment in broadcasting — amounting to 40 billion shillings — and partly because of the promises made by the government.
• The Supreme Court held that the CCK had violated the principles and values in Article 10 of the Constitution. It now ordered that the CCK be reconstituted as the Communications Authority of Kenya, to kick-start discussions with the three media houses partly to agree on modalities of digital migration and partly to agree on additional BSD licensing.
• The fault lies in the court’s shallow understanding of independence. As to what independence is meant by Article 34(3) the court begins well enough.

There is truth in the statement of an unknown wit that proclaimed that “men fight for freedom, then they begin to accumulate laws to take it away from themselves.”

This is the feeling one gets in the survey of the decision of the Supreme Court on Article 34, the media freedom clause, in the digital migration appeal.

This article assesses the impact of the court’s decision on the freedom of media clause. First, we track the case from the High Court to the Supreme Court. Second, an analysis of the Supreme Court’s reading of Article 34 follows. Finally, the conclusion tries to assess the impact of this decision on media freedom.

Let’s begin with the case in court. Royal Media Services, the Nation Media Group and the Standard Media Group were eventually shut out of the BSD (Broadcast Signal Distributors) procurement process. They then lost the appeal to the Public Procurement Administrative Review Board (PPARB), and, to their chagrin, the Communications Commission of Kenya (since renamed Communications Authority of Kenya) authorised their rivals to carry their content without their consent.

It was then that the media houses decided to file a constitutional case against the CCK, the Attorney-General and the Ministry of ICT in the High Court.

FOUR ARGUMENTS

They made four arguments: That Article 34 of the Constitution had been violated to their detriment; that the Constitution requires the State to establish an independent broadcast regulator and that the CCK was not that body; that the decision of the CCK authorising pay TV to carry their content without their consent was an illegal use of copyrighted materials and so a violation of their intellectual property rights; and, that by reneging on the promise to grant them a BSD licence, the government had frustrated their legitimate expectation arising from its own policy documents.

They argued that, as with KBC — which had similarly been promised and granted the BSD licence — they should never have had to go through a tendering process. The case was first heard in the High Court.

The High Court rejected all these claims. It held that, having participated in the tendering process and exhausted the procurement appeals process, they could not re-open the issue of the BSD licensing through a constitutional application.

On the CCK, the court held that the CCK was the body contemplated by the Constitution, at least in the transition period. It also rejected the intellectual property argument saying that it could not see how any copyright had been violated in the CCK letter authorising pay TV to carry the content of the local broadcasters without their permission.

LEGITIMATE EXPECTATION

Nor, according to Justice David Majanja, could any legitimate expectation claim be allowed. On appeal, the three Court of Appeal judges reversed the decision of the High Court and, in effect, agreed with the media houses on all their four claims.

The appellate court held that the three media houses had a legitimate expectation that they would get the BSD licence, partly because of their massive investment in broadcasting — amounting to 40 billion shillings — and partly because of the promises made by the government.

The court also held that the CCK was not the body contemplated by the Constitution as the independent broadcasting regulator. One effect of that finding was that the licence issued to PANG was cancelled. The CCK, the Attorney-General, the Ministry of ICT and PANG appealed to the Supreme Court, which re-instated the decision of the High Court with only one exception.

The Supreme Court held that the CCK had violated the principles and values in Article 10 of the Constitution. It now ordered that the CCK be reconstituted as the Communications Authority of Kenya, to kick-start discussions with the three media houses partly to agree on modalities of digital migration and partly to agree on additional BSD licensing.

OWN CONTENT

When the 90 days expired, the modalities of digital migration had not been agreed upon and though the three media houses have now been allowed to carry their own content, in principle, they had not been granted a BSD licence, which would have allowed them to offer broadcast carrier services to other broadcasters.

Having furnished the background, we now turn to the decision of the Supreme Court. Even though the judgment of the Supreme Court has received little interest in the media, it will prove to be as far-reaching- perhaps more so than the decision of the Supreme Court in the presidential election petition.

The court’s narrow reading of Article 34 is a blow to the intentions of the makers of the Constitution that media would flourish in the new dispensation. In this piece, let us focus on the court’s reading of Article 34 of the Constitution. In this case, the Supreme Court was called upon to interpret the clear language of Article 34 generally and sub-Article (3) in particular.

As the judges saw it, the explicit language of that Article is tentative and does not explicitly compel government to establish an independent broadcast regulator. All that article 34(3) required is that the process used by CCK be independent of government. It is not the CCK itself that had to be independent of government.

COURT IS MISTAKEN

Let’s take a close look at Article 34 to see why the court is mistaken. The right of media — now secured by Article 34 of the Constitution — rests on the idea that the public debate depends on a free and plural media.

For that reason, Article 34 imposes very explicit duties on government in sub-Articles 1, 3 and 5, all of which were key issues in the digital migration case. The first sub-Article guarantees the “freedom and independence of electronic, print and all other types of media”. Sub-Article 3 secures the right of establishment for “broadcasting and other electronic media” subject only “to licensing procedures”.

The licensing procedures themselves must satisfy two mandatory conditions: They must be “necessary to regulate the airwaves and other forms of signal distribution” and they must be “independent of control by government, political interests or commercial interests.”

Sub-Article 5 requires Parliament to “enact legislation” to establish a body that reflects of all “sections of society” and is “independent of control by the government, political interests or commercial interests” to “set media standards and regulate and monitor compliance with those standards.”

The three media houses argued that the effect of sub-Article 3 is that the government must create an independent body to allocate radio frequencies and that given the current structure and composition of the CCK, it was clear that it did not meet the criteria of independence that the Constitution required.

CONFUSION ARTICLES

The court disagreed. It said that the three media houses were confusing sub-Article 3 and sub-Article 5. Only sub-Article 5 required government to create an independent body. From the judges’ reading of the law, that sub-Article referred to a body for setting standards, in other words a body dealing with ethics and media standards.

The body referred to in that sub-Article, the judges concluded, was the Media Council of Kenya, which had nothing to do with frequencies. As to the meaning of sub-Article 3, the court ruled that all that a broadcaster was entitled to were ‘independent procedures” not an independent body”.

As a matter of theory and practice, the court is profoundly mistaken. Nothing in the language of Article 34 or in the principles of constitutional law says that if the law is not explicit that a law should be enacted, then no authority to enact law exists.

The laws that the Constitution explicitly says must be made are merely the minimum required to give effect to the Constitution. The point is that all of Parliament’s power is permitted by the Constitution, even if the Constitution does not explicitly say so.

When a specific clause in the Constitution explicitly says Parliament is to make a named law — as article 34(5) does — it merely defines the minimum legislative agenda, not all the necessary and proper laws that Parliament should enact.

INSUPPORTABLE CONCLUSION

If we drill a little more, it becomes clear why the Supreme Court’s conclusion is insupportable. Under Article 20, the Constitution requires the court to “adopt the interpretation that most favours the enforcement of a right or fundamental freedom.”

The court’s reading of Article 34 blights this hope. How is the broadcast media’s right of establishment to be protected if not by both independent procedures and an independent body? There are two rights which though described in stand-alone terms are nonetheless bundled: The right of media to exist — which is unqualified — and the right of establishment, which is subject to licensing procedures that are independent of government, commercial and political interests.

The purpose of the establishment clause, Article 34(3), is to make the right of the media, in Article 34(1), meaningful. But on this, the court is guilty of throwing cotton wool in our eyes. The judges spent much time and care, extensively reviewing the obligation created by Article 34(5), under which the Media Council of Kenya is created. The court concludes, correctly, that the CCK is not the body contemplated under 34(5). But that conclusion is irrelevant to Article 34(3) which governs frequencies.

CANNOT BE INDEPENDENT

In reading Article 34(3) — where frequencies are meant to be allocated through a process that is independent — the court concludes that it is logical to assume that “licensing procedures cannot be independent unless the licensing organ is itself independent.” This was the media houses’ central point: It is disposed of in four short sentences.

So we are left with the following legal proposition. What a person who wants frequencies is entitled to are independent ‘procedures’ not ‘an independent organ’. Even the court appears uneasy at its own conclusion. It notes that media houses were unhappy with the CCK because of its perceived lack of independence especially in the manner in which it is composed.

The trouble is that the court does not follow through on that unease. What is a court to do when a body with the mandate to implement constitutionally protected rights is perceived to lack independence?

Instead of answering that question, the court, in effect, opts out. It observes that since Article 34(3) does not mention the creation of a body — as Article 34(5) does — there is, therefore, no requirement that an independent body be created.

This frames the constitutional question the wrong way. The proper question is whether the government can fulfil the mandatory duty of allocating radio frequencies in an independent way through a body whose composition gives the perception that it is not independent, as the court itself notes.

SHALLOW UNDERSTANDING

The fault lies in the court’s shallow understanding of independence. As to what independence is meant by Article 34(3) the court begins well enough. It notes that this is a “combination of many factors, including ‘the fortitude of the men and women who occupy office in the said body’. But that feint to the right rhetoric is completely unhelpful.

Where litigants claim — as they did here — that their rights have been violated because a decision-maker is not independent, the court must settle the question one way or the other.

What does Article 34(3) mean by “procedures independent of government?” The CCK in effect argued that procurement would be such a procedure. In support of that position, they referred to Article 227. That Article requires the government to use procedures that are “fair, equitable, transparent, competitive and cost-effective’ when it is contracting. But, unfortunately, nothing in that Article suggests that contract or procurement is the appropriate or only permissible method for allocating radio frequency spectrum.

In fact, no country in the world uses contract exclusively for allocating radio frequency spectrum. Those who do, usually set very specific national interest requirements. Radio frequencies are public goods of a very special kind: Freedoms central to democracy — expression, speech, access to information, the right to assemble — depend on their fair distribution.

INDEPENDENCE

But there is a lot more that is wrong with the argument: Kenya does not have a history where a body not independent of government ever applied fair procedures. It is as if the court had argued that when the Constitution talks of a fair trial, it envisions fair procedures, not an independent judge. Independence is formal and substantive, not one or the other but both together.

Kenyans know from bitter experience that a mere declaration that procedures are fair, guarantees nothing about a fair decision if the judicial officer is a lackey of the powers that be. How decisions are made; how open the process of decision-making is; who makes those decision and how accountable the institution making the decision is, are all part of the criteria by which we define any regulator as independent.

And then there was the factual background that the court failed to consider. Not only was the CCK not, on the face of it, independent of government, its past relations with the media houses were not encouraging. It had already had numerous run-ins with the three media houses, often in circumstances that suggested that its decisions were politically instigated.

This means that even if the court thought that, in principle, an independent body was not necessary so long as independent procedures were followed, the factual matter here was the regulator in this case had already shown that despite statutory proclamations of its autonomy and independence, it was not immune to political influence. That fact alone says that it had failed one of Article 34’s requirements: The need to be independent of political interests.

SUPREME COURT MISTAKEN

But the Supreme Court is also mistaken in how it reads the media freedom clause. The court argues that the broadcast media freedom is subject to radio frequency licensing procedures. This is to read the Article in reverse: The right to freedom of the media comes first.

The right of establishment comes next. The first right, the right to freedom of media, is not subject to radio frequency licensing procedures. Rather, it is the right of establishment that is subject to those strictures.

This means that the court’s analysis should have proceeded step-wise: In the first place, the court ought to ask whether the frequency licensing regime undermines the right of establishment.

In the second step, the court then asks whether that undermines the right to freedom of the media to exist. Let us make this concrete.

Suppose the CCK decides to allocate frequencies, as it did in this case, through a procurement process through which all bidders must give a bid security of Sh120 million? The court might consider that such a rule favours no particular bidder among those qualified. Under those circumstances, the procurement is not an interference with the right of establishment.

But when the court tests that conclusion against the principles in the Constitution and freedom of media in Article 34(1), it may conclude that if procurement on those terms is implemented across the board, it potentially locks out small media from broadcasting. For example, such a procurement rule would be anti-devolution in that it would certainly cut out applicants with a small geographical reach, say those at the county level.

AFFIRMATIVE ACTION

At this point, the court may then rule that the procurement process must be supplemented by an affirmative action policy that reserves some BSD licences for marginal, geographically-limited carriers such as those in the counties.

One argument that the court made much play of has to do with the transition period. The court argued it was a fact that when the Constitution came into force in 2010, CCK was the broadcast regulator. The constitution gave the government three years within which to implement Article 34. From that fact, the CCK was entitled to continue acting as broadcasting regulator.

The theory, in short ,is that during the transition period, the Constitution did not envision a vacuum in broadcast regulation. Based on this reasoning, the court argued that CCK’s independence could not be impugned.

This argument has three flaws. First, it is important to clarify the nature of the three year time-line that parliament had been given. The time-line is a sunset clause, it is not an appointment. That is, a sunset clause is a deadline. It says that something needs to be done by a certain date but that means that it can also be done much earlier, depending on the policy imperatives.

THE TRICK

An appointment is different: It says that something has to be done on a specified date.

The trick is to see how this changes the analysis. When the government embarked on digital migration, it should have asked itself what legal obstacles stood in its way.

One such obstacle is Article 34 which — as relates to broadcasting — required that an independent process be in place for allocation of frequencies.

The government cannot respond to critics by saying that it had three years within which to comply with that Article. It has an obligation to comply with every article from the day the Constitution came into force. Unless, of course, the Constitution explicitly says that the Article is in abeyance.

To conclude, the Supreme Court has left media freedom and particularly broadcasting in limbo. By serving up a narrow understanding of ‘independence’ and taking an unduly narrow reading of Article 34, the court has betrayed the hopes cherished by the drafters of the Constitution that a stand-alone media clause would protect Kenya’s long-suffering Press from predation by government.

The writer is a constitutional lawyer. mainawaciira@gmail.com

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