Gone with the wind: Kisiang'ani powerless after reassignment, court verdict

The High Court has quashed the memo of the State Department for Broadcasting and Telecommunications Principal Secretary Edward Kisiang’ani (who was removed from the position on Thursday), monopolising government advertisement.

Justice Lawrence Mugambi, in an indicting verdict against Kisiang’ani on Thursday, said he not only misconceived the application of the Public Procurement and Asset Disposal Act but also illegally conferred on himself non-existent powers and had no authority or powers to direct other accounting officers on which media houses they could advertise in.

“The second respondent unlawfully appropriated unto himself non-existent powers. Under the Public Procurement and Asset Disposal Act, the second respondent has no capacity to exercise such powers thus rendering his memo void ab inito,” said Justice Mugambi.

The Judge further said the ICT PS has no powers to direct other officers on procurement, as doing so would usurp their powers.

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Justice Mugambi said Kisiang’ani’s move perpetuated discriminative exclusion in procuring public services and did not promote transparency and competitiveness.

“For the State to make such fundamental policy shift affecting the procurement advertising services that excludes privately owned enterprises, such an exclusion is not a mere internal matter to be effected without the involvement of the public whose concerns must be heard and taken into account,” the judge said.

He asserted that the PS decision was a major shift in service procurement, with grave implications for the private sector. He said it was Kisiang’ani’s duty to ensure that Kenyans and media stakeholders understood the purpose and considered their fears.

Justice Mugambi observed that the government holds a huge purse for publicity. According to him, it is responsible for ensuring media independence and promoting pluralism through advertisement but has opted for absolute market control by driving adverts to a particular media at a disadvantage to the others.

“There is what would be a danger of creating a monopoly and gatekeeping in the media as the rest would slowly be weakened and driven out. I would say this is the long-term effect of such an initiative,” he said.

The Judge said reviving the public-owned Kenya Broadcasting Corporation is a good idea. However, he said, the effect may be disastrous.

Media control

According to him, instead of promoting a vibrant media space by allowing both the broadcaster and private media houses as a cornerstone of the democracy in the country, the government is nurturing economic exclusion and discrimination of the private sector by blocking them from competing for government contracts by circumventing the procurement process in its favour.

“That is not what the Constitution requires the government to promote under the Article 34 of the Constitution. The policy engineered by the state to push the might of state resources of advertising budget by empowering government broadcasters will create a monopoly in the market, which may end up ruining the independence of the media,” he said.

Justice Mugambi said it was unfair to argue that private media had other revenue-generating channels. He asserted that even government-owned entities had the same opportunity to make revenue in an open market despite the massive advantage given by Kisiang’ani’s policy.

He further said the government was exerting control on private media from an economic perspective.

“The policy will naturally end their revenue stream and possibly weaken their capacity to effectively operate effectively,” said the judge, adding that the exclusion and control of the private media cannot meet constitutional muster.

Free market

The judge declared that Kisiang’ani’s memo dated March 7, 2024, contravened the Constitution and the procurement law and quashed it.

“I therefore find the memo is a threat to the freedom of the media under Article 34 of the Constitution. In the upshot, this petition succeeds,” he ruled.

The judge was determining a case filed by lawyers and journalists who sued Kisiang’ani for monopolising government advertisements.

The Law Society of Kenya (LSK), Kenya Editors Guild (KEG) and Kenya Union of Journalists (KUJ) asked the High Court to quash the PS’s decision.

The PS directed that all government advertising in television be exclusively done by Kenya Broadcasting Commission (KBC). However, LSK, KEG and KUJ argue that the directive was wrong and flouted the law on government’s information.

According to the three lobbies, Kisiang’ani also ignored Kenya’s free market policy.

“The impugned action taken by the second respondent is a complete departure from constitutional and statutory provisions and industry norms that accord and ensure that crucial Government information is not only published but also publicised, circulated and disseminated as widely and broadly as possible in compliance with Article 35 of the Constitution,” court papers read in part.

KBC viewership

Article 34 guarantees media freedom while Article 35 grants every citizen the right to access information held by the state and requires the state to not only publish but also publicise any important information affecting the nation.

The court heard that Kisiang’ani’s actions amounted to killing independent media.

In addition, the court heard, the PS’s actions amounted to controlling media houses that are getting the adverts to sing the government’s praises.

He is also accused the PS of ignoring the fact that majority of Kenyans do not watch KBC, hence, will be left out of critical information affecting them.

“The Petitioners contend that by limiting public sector advertising to the 3rd Respondent, the 2nd Respondent violated the provisions of Article 34 (3) (b) and (4) which requires broadcasting and other media to be free and independent of control by government, political or other commercial interest, and for media to be free to determine independently their editorial content and should be impartial,” the lobbies argued.

This is the second time Kisiang’ani is finding himself in court over controversial decisions touching on the media industry. He first limited supply of My-Gov to The Star newspaper, which was challenged in court.

Kisiang’ani decided to deny The Standard Group PLC (SG), Nation Media Group (NMG) and People Daily a contract to run My.Gov pull-out.

Public scrutiny

In court, the Faith Odhiambo-led LSK argued that The Star only circulates in Nairobi. LSK argued the government is not only denying Kenyans access to crucial information on jobs and government tenders, but it is also stifling their participation in decisions that require scrutiny and their contribution.

“Because of restriction now imposed in the publication, printing and distribution of My.Gov publication, many Kenyans and consumers of government information who reside outside Nairobi run the real risk of losing out on crucial information which is published on My.Gov publication pull out,” said lawyer Peter Wanjiku who represented LSK, KEG and KUJ.

According to the lawyer, media stakeholders had tried to reason out with the PS but their quest hit a dead end.