SUMMARY OF THE CASE.
The case was heard at the High Court of
Nairobi, Milimani Law Courts in the year 2013. The petitioners were Royal Media
Services, Nation Media Group and the Standard Group Limited. Hon. Muite was the
lead counsel for the petitioners. The respondents included the Attorney
General, Ministry of Information Communications and Technology, Communication
Commission of Kenya and 4 others. Interested parties were Consumer Federation
of Kenya and West Media Ltd.
The petition sought protection under
Article 34 of the Constitution which provides the freedom and independence of
electronic, print and all other types of media. It also provides that the state
should not interfere with any person engaged in broadcasting or dissemination
of information by any medium.
Petitioners were lead companies that
control upto 80% of the television coverage in Kenya. Their prayers included:
1. That a
declaration be made that petitioner’s rights as broadcasters under art 33 and
art 34 had been infringed
2. A
declaration that the respondents distribution of licenses and Broadcast Signal
Distributions were against art 34
3. That
the 13th December, 2013 as the proposed day for switch off of
television was against public interest
4. That
analogue and digital broadcasting systems should co-exist and the respondents
should give the public the right to make their choice
5. That
petitioners are entitled to be issued with a Broadcast Signal Distribution
License.
6. An
order of injunction restraining respondents from switching off the petitioner’s
analogue frequencies
7. Costs
by the respondents
The issues before the court were whether
and to what extent the petitioners are entitled to be issued with the BSD
licenses by the CCK, and if issuing the licenses to the exclusion of the
petitioner’s was a violation of Art 33 and 34. Secondly, whether the
implementation of digital migration was a violation of the petitioner’s
fundamental rights.
The court, having laid down the history
of digital migration in Kenya, recognized that the right was not in the old
constitution, maybe under right of expression. However, the court stated that
the petitioner’s were not entitled to getting a license as it would violate the
non-discriminatory provisions under art 27, if they were to be given the
licenses based on their investment in the industry. It was determined that the
issuing of the same had been done in a transparent way.
On the issue of migration, the court
stated that Article 2(6) makes ITU treaty part of our laws, and therefore,
Kenya was bound by its provisions. They stated that it is a government of Kenya
policy to encourage the digital migration, and that the petitioners had taken
part in formulating that policy. The CCK demonstrated steps taken to deal
with the issue of availability of Digital Set Top Box (STB) such as no import
duty is to be paid, and the licensed vendors for free and expected that once
the switching off is done, competition and demand will lower the cost of the
STB’s. the court pointed out that though the migration would cause
hardship to the petitioners business and other inconviniences to Kenyans, no
future date will be perfect. It dismissed suggestions to give uo the policy
based of experiences of USA and Tanzania. The court also suggested that it was
probable that the petitioners maybe wanted to delay the igration process to
enable them secure the BSD licence. In the court’s opinion, the petitioners did
not establish if public policy had really been violated.
The court therefore, found that the
petitioner’s were not entitled to get the licence, and that the migration
process was consultive and participatory and in line with Kenya’s international
obligations.
Case was dismissed with costs to the
respondents, but on appeal before Justice Kihara Kariuki, PCA, Visram and
Okwenya, the court extended the switch off date to 6th February,
2014.
HISTORY OF TELEVISION AND BROADCASTING
A television, as defined in the Free
dictionary, is an electronic apparatus that receives signals, reproducing the
images on a screen and typically reproducing accompanying sound signals on
speakers[1][1].
Before the invention of modern ways of
communication, telecommunication began with the use of smoke signals and drums.
Some of examples of such places which used such forms include America and
Africa.
The first invention, a semaphore, was
built on 1792 by Claude Chappe. However, it did not succeed thus abandoned in
1880.It failed because it could not clearly show the images.
The first radio was built in 1894 by an
Italian inventor, Guglielmo Marconi. The first television was built in 1925 by
John Logie Baird. His device relied on a Nipkow disc, thus the name mechanical
television. This disc scanned the images which were later transmitted into an
electrical signal by projecting an image onto a selenium metallic plate.
Afterwards, it would be scanned by cathode ray beam which succeeded in
transmitting faint images. This led to the common known as ‘black and white’
television.
Later in 1933, due to color t.v.
public demand, the scientists introduced an improved camera tube which had a
light sensitivity which could show more visible light images. The cameras were
installed in tall buildings .This made it easier for media companies such as
British Broadcasting Corporation (BBC) to carry an
outside broadcasting for the first time on any live street scene.
However, modern ways of communication
were introduced in Kenya by the British during the colonial period. The
British needed to receive news from Europe. At first, they introduced the
radio.Later, in 1962, they launched a broadcasting television known as Kenya
Broadcasting television (KBC).In 1963, it was converted to Voice of Kenya
(VOK).
The British government was in total
control during the first 2 decades of independence. There was only one
political party and the media’s freedom was very restricted.Moreover, there was
only one station which only aired news favorable to the government .In 1989,
the broadcasting television was later converted back to KBC.
After the 1990’s, due to the change of
national leadership and the implementation of new acts, the broadcasting
industry was granted much more freedom. They also obtained more competition due
to the upcoming television stations, both private and public. Private stations
such as Kenya Television Network (KTN) were not controlled by the government
thus had more freedom. By 2000, there were 6 local stations formed.
In 1998, a body which stood for the
television stations was formed in 1998 i.e. Communication Commissions of Kenya
(CCK).It was formed under the Information and Communications Act[2][2].
This act gave more freedom to the media and also encouraged private investments
in the telecommunication sector.
However, the act was amended to Kenya
Communications (Amendment) Act[3][3]
which still had the same purpose like the amended previous
act. Furthermore, it provides general regulations
for telecommunication services failure to which one would be found guilty of an
offence on conviction to a fine not exceeding ksh300, 000 or a term not
exceeding 3 years[4][4].
HISTORY OF ITU
ITU stands for International
Telecommunication Union. It was founded in Paris in 1865.It took its present
name in 1932 and in 1947 it became a UN agency.
As an organization, it currently has a
membership in 193 countries and 700 private sector entities. Its headquarters
are located in Geneva.
Its main mission is to enable growth
and sustained development of telecommunication and information networks. It
also facilitates universal access so that people can easily participate in, and
benefit from the emerging information society and global economy. It also
provides efficient telecommunication services worldwide and fosters growth of
telecommunications in developing countries.
ITU is divided into 3 sectors which
help in carrying out the functions and also create regulatory frameworks and
strategies. They include:
s Radio communication-ensures
optimal, fair and rational use of radio frequency.
s Telecommunication
Standardization-formulates recommendations for standardizing
telecommunication operations worldwide.
s Telecommunication
Development-assists countries in developing and maintaining internal
communication.
ANALOG VS DIGITAL: COMPARISON
Analog (or analogue) television is the analog transmission that involves the broadcasting of
encoded analog audio and analog
video signal. During transmission the brightness
and colors of the points in the image and the sound waves of the audio signal
are represented by continuous variations of some aspect of the
signal; its amplitude, frequency or phase. All broadcast television systems preceding digital transmission of digital
television (DTV) were systems utilizing analog
signals. Analog television may be wireless or can require copper wire used by
cable
converters.
Digital television (DTV) is the
transmission of audio and video by digitally processed and multiplexed signal,
in contrast to the totally analog and channel separated signals used by analog
television. It is an innovative service that represents a
significant evolution in television technology since color television in the
1950s.Many countries are replacing broadcast analog television with digital
television and allowing other uses of the television radio
spectrum. Several regions of the world are in different stages of
adaptation and are implementing different broadcasting standards.
There are four different widely used
digital television terrestrial broadcasting standards (DTTB) in the world.
There are four different widely used digital television terrestrial
broadcasting standards (DTTB):
Advanced Television System Committee (ATSC)
uses eight-level vestigial sideband (8VSB) for terrestrial
broadcasting. This standard has been adopted in six countries, United States,
Canada, Mexico, South Korea, Dominican Republic and Honduras.
Digital Video Broadcasting-Terrestrial
(DVB-T)
uses coded orthogonal frequency-division multiplexing (OFDM)
modulation and supports hierarchical transmission. This standard has been
adapted in Europe, Australia and New Zealand.
Terrestrial Integrated Services Digital
Broadcasting (ISDB-T)
is a system designed to provide good reception to fix receivers and also
portable or mobile receivers. It supports hierarchical transmission of up to
three layers and uses MPEG-2 video and Advanced Audio Coding. This standard has
been adopted in Japan, Philippines and in most of South America and is also
being embraced by Portuguese-speaking African countries.
Digital Terrestrial Multimedia
Broadcasting (DTMB)
adopts time-domain synchronous (TDS) OFDM technology with a pseudo-random
signal frame to serve as the guard interval (GI) of the OFDM block and the
training symbol. The DTMB standard has been adopted in the People's Republic of
China, including Hong Kong and Macau.
DIGITAL MIGRATION IN KENYA
Kenya is one of the first African
countries to embark on migration and the Government had set a deadline to
achieve this by the end of 2013. From that date, broadcasters would have their
programmes sent to viewers’ TVs by the signal distributors for a fee. Signal
distributors are the companies that build, own and manage television signal
networks.
However he Kenyan government postponed
the deadline for digital migration to June 2014, following a successful
petition by the Media Owners Association who say the deadline was unfeasible
and all the stakeholders were not on board.
ADVANTAGES OF DIGITAL MIGRATION
Better picture quality. Digital Television
Broadcasting will offer sharper; brighter picture, and reduced interference.
Viewers will also enjoy improved sound quality.
More choice. Digital signals
take up much less bandwidth and therefore more channels can be broadcast. The
Kenya Government’s Broadcasting Digital Migration Policy encourages more
free-to-air channels for the diverse Kenyan population including the youth,
women and farmers among others.
More access. The Set Top Box
(STB) which will be used to receive the digital signal also has the capability
to interface with devices such as a cell phone, memory card or internet modem.
This will provide viewers with access to many more services and information.
Better utilization of frequencies A digital signal
carries much more data than an analogue signal. Therefore, more than one
channel of television programs can be broadcast at the same time. This is known
as multi-channeling. This efficient utilization of channels reduces the number
of frequencies required for the broadcasting sector hence unused frequencies
for use in other services.
DISADVANTAGES OF DIGITAL MIGRATION
Expensive. The biggest
disadvantage of the digital TV is the fact that you will need special
equipment. For the old analog broadcast, the only thing that you needed was an
antenna, but for the new digital broadcast you will need digital converter box
which is expensive for citizens in third world countries.
Loss of signals. Disadvantage of the
digital broadcast is the loss of signals. With the old analog broadcast, you
are probably used to bad picture when the weather is bad, but with the new
digital one you will lose all your channels entirely in case of a bad weather.
Cost of transmission. Due to huge
infrastructural investments; masks, satellites, booster stations etc media
owners will incur huge losses in migrating to digital migration.
ITU GUIDELINES ON THE GLOBAL TRANSITION
TO DIGITAL TRANSMISSION
The broadcasting revolution is
well-underway, and the transition from analogue to digital broadcasting is
creating opportunities for the provision of ICT applications and multimedia
services and also contributing to the efficient use of spectrum through the
digital dividend and the release of spectrum for other uses such as wireless
broadband communications.
The transition to digital terrestrial
television broadcasting (DTTB) and the introduction of mobile television
broadcasting (MTV) services is already benefiting regulators, service
providers, network operators as well as consumer electronics manufacturers despite
being a complex process. This is in part due to different national regulatory
frameworks, service offerings and network configurations another, but is also
due to national priorities, market circumstances, geography, and population
distribution.
However, independent of national
variations may lead to firm decisions on the analogue TV switch-off date, close
cooperation between the regulator and market players, clear and timely
regulatory frameworks, including decisions on the digital dividend, and adequate
information and assistance to viewers.
The Guidelines for the Transition from
Analogue to Digital Broadcasting is intended for a global audience to provide
information and recommendations on policy, regulation, technologies, network
planning, customer awareness and business planning for the smooth transition to
DTTB and introduction of MTV. This publication is the implementation of the
decisions of GE06 Plan, for which the original Guidelines were prepared for
among others, the Africa region.
ITU is promoting the DTTB transition
and has developed frequency plans for digital terrestrial broadcasting (GE 06
Plans) for Region 1 and Iran, which should be implemented by 17 June 2015, with
the exception of some developing countries for which the transition period will
end on 17 June 2020.
Introduction to the Guidelines
The broadcasting industry and
regulators face both opportunities and challenges in dealing with the
transition from analogue to digital broadcasting. The transition requires
decisions to be made on a great number of political, social, economic and
technological issues. Therefore, it is necessary to develop a well-defined
roadmap covering national strategies and key decisions.
These guidelines intend to prove
information and recommendations on policy regulation, technologies, network
planning, customer, awareness and business planning for smooth introduction to
DTTB. They are mostly concerned with conversion of the radio frequency elements
of the broadcast chain (analogue to digital).they are as explained below:
a) Policy
and regulation
This guideline provides an overview of
the key issues and choices the regulator face when formulating DTTB objectives.
They also ensure that the member state ensures a rapid service up-take and
development of DTTB markets.
The regulator is to implement such
policies by issuing information, funds, licenses and permits to qualified
market parties who have complied with the relevant legislation.
Also ITU Member States which have
regulatory policies, regulations and specifications for telecommunication
equipment, will require that the equipment imported or deployed in their
countries meet their regulations and specifications.
In Kenya, there Kenya Communication Act
which was amended in 2009 which provides legal foundation under which ICT
regulator (CCK) manages all spectrum. Part 4 of the Act, the CCK has legal
mandate to issue license, determine fees payable for use of spectrum and also
establish and enforce standards of the spectrum.
The Minster formulates regulations in
2010, The Kenya Information and Communication-Radio Communications and
Frequency Spectrum Regulations. The regulations ensure that the CCK considers
availability for the proposed service and location as well as its safety.
b) Analogue
Switch Off (ASO)
The guideline provides an overview of
the transitional model adopted by the country, its organizational structure and
entities and also the planning and milestones of ASO .This should be
communicated to the public.
Kenya has observed the guideline in
that it first set the transition deadline date of 1st July 2012 as
switch off date in a phased manner. This was to ensure that there was enough
time to address difficulties that would arise before the worldwide set date
which will be on 2015.
There was also established a taskforce
in September 2007 to spearhead d the transition. It gave recommendations under
a report it prepared which proposed the following milestones :(dates)
c) Market
and business development
It deals with business issues and
choices of DTTB faced by service providers and broadcasting networks operators
when planning the commercial launch of these services. It includes the tools
defining the DTTB service proposition taking into account identified demands, barriers,
financial problems and customer support issues.
The commercial parties are required to
fulfill consumer demand also the public service providers too should fulfill
the objectives of the public interest in the field of information and be
interested in reviewing ratings and high population coverage. The broadcasting
market is to provide for content and signal distribution. in Kenya this is
designated to the Kenya Broadcasting Corporation (KBC) which is the public
broadcaster.KBC was awarded its first signal distribution.
In 2006, National ICT Sector Policy
Guidelines were established. They outlined the framework within which national
broadcasting, private broadcasting and community broadcasting signal
distribution would be provided. There was established a common transmission
platform for all broadcasting services to optimize usage of available
resources. However KBC formed a separate company and was granted the license
the private investors were to be licensed in a competitive ground.
d) Networks
This guideline deals with choices that
operators face when planning transmitter networks for broadcasting DTTB
services. The choices are in relation to network architecture, network planning
and network operation. They should be made in such a way that the license
conditions are fulfilled and business objectives met. These choices involve
that affect the sound and picture quality, coverage quality as well as
transmission costs.
In Kenya there are various providers
but Star TIMES Media is the leading digital television service provider. In
2009,DVB-T signal which was provided by signet was upgraded to DVB2 to offer
better packages.
e)
Roadmap development
Developing plans and committing
resources to establish a roadmap is a large undertaking, requiring analysis of
Regional technology deployment and plans, market factors, funding sources,
testing expertise, accreditation experience, and many other factors. A roadmap
provides a methodical means of considering all the parameters associated with
establishing a Regional test centre. From transmission project conception to
final recommendations and execution, the evaluation and decision process should
follow a logical set of steps based on the overall objectives and constraints.
A roadmap is useful to point the way toward a successful process.
It involves development of generic
roadmaps regarding the whole process of transition to DTTB by the regulator and
network operator as well as service provider. It is a plan that indicates main
activities of the whole transmission process. It happens in phases depending on
country. An example in Europe the process was to take three to fourteen years.
The primary consideration for
establishing a successful trend to digital migration is the analysis of
technologies deployed in and planned for the region. A market evaluation of
such regional technologies and their relative market shares and trends are
critical in predicting the relevance and success of the whole process. it is
necessary to identify technologies currently in use as well as new and planned
technologies and services in order to account for future growth and expansion.
Secondly, it is also important to
assess the facilities that are to be used. This may be done trough first
ensuring that a certain region or town first migrates to digital. It should be
relative to the customer base and the ecosystem of stakeholders to be involved.
Location may also be influenced by the availability of land for construction,
existing facilities available for purchase, expansion among others.
Thirdly, the major consideration for
establishing this process is the availability of funding. The financial
resources will ultimately determine the scope of operations and the pace of the
migration rollout. A complete financial analysis, taking into account current
funding, projected income, capital costs, and operating costs, provides the
constraints within which the migration process must operate.
Lastly is the stage of priority
identification, where if the entire process cannot be supported immediately,
the state is to establish priorities drive the development of phases for the
rollout plan.
An example is Kenya, where there was
established a multi-stakeholder working group which was referred to as Digital
TV Committee. It was comprised of members of the government and media industry.
It set dates which were agreed by all media owners as follows:
ü Phase 1- 13th
December 2013-Nairobi
ü Phase 2 -30th March
2014- Mombasa,Malindi and 7 others
ü Phase 3-30th June
2014—all others.
LEGAL PROVISIONS AS REGARDS KENYA’S
OBLIGATIONS UNDER INTERNATIONAL TELECOMMUNICATIONS UNION
Digital migration is part of an
international process implemented through the framework process by
International Telecommunications Union. The International Telecommunications
Union was established by the United Nations upon the adoption of the Convention
of the International Telecommunication Union, which was subsequently adopted
and ratified by Kenya in 1964.
The ITU-R business is conducted through
its various policy organs; the World Radio Communication Conferences, Regional
Radio Communication Conferences, the Radio Regulations Board, Radio
Communication Assemblies, Radio Communication Study Groups and the Radio
Communication Advisory Group. For the purposes of allocation and management of
frequencies at the global level, the world is divided into three ITU Regions
with the Republic of Kenya belonging to ITU Region 1 which comprises of Western
and Eastern Europe, Africa and the Middle East.
The provisions of the ITU Convention
form part of the Laws of Kenya by virtues of Article 2 (6) [5][5]which
provides that any treaty or convention ratified by Kenya shall form part of the
laws of Kenya under the constitution.
The Treaty Making and Ratification Act
of 2012, section 2 defines Ratification as an international act by which the
state signifies its consent to be bound by a treaty and includes acceptance,
approval and accession where the treaty so provides. This Act only applies to
those treaties that Kenya shall consider after the coming into force of the
Act. All other treaties that Kenya ratified before the enactment of the Act
shall form part of Kenyan Law. Therefore ITU is part of the Laws of Kenya and
therefore binding on Kenya.
Under Kenya Information
Communication Act, CCK is the body mandated to regulate broad casting
and other electronic media by way of licensing. Under section 5 of KICA,
the CCK is established “... to licence and regulate postal, information and
communication services in accordance with the provisions of this Act.”
Article 34(5)[6][6]
as
read with Article 261(1)[7][7]
and the Fifth Schedule to the Constitution requires
Parliament to enact legislation
establishing an independent body to regulate the media within three years of
promulgation of the Constitution and the Legislature recently passed KICA.
LEGAL ISSUES ARISING
Locus Standi in Public Interest
Litigations
Locus standi refers to the legal right
to bring an issue before court. Classically there were strict requirements regarding
standing. A person needed to show direct interest in the subject matter. In Wangari
Maathai v Kenya Times Media Trust Ltd[8][8], the petitioner was
seeking temporary injunction restraining the defendant from constructing a
proposed complex in a recreational park in central Nairobi. The defendant
objected the petition claiming that the petitioner had no legal standing. The
court upheld the objection. With the enactment of the 2010 constitution, the
court approach towards legal standing changed.
The constitution clearly provides the
requirement of standing that is very liberal. Article 22(1) of the constitution
provides that every person has the right to institute court proceedings
claiming that a right or fundamental freedom in the Bill of Rights has been
denied, violated or infringed, or is threatened. (2) In addition to a person
acting in their own interest, court proceedings under clause (1) may be instituted
by (a) a person acting on behalf of another person who cannot act in
their own name; (b) a person acting as a member of, or in the interest
of, a group or class of persons; (c) a person acting in the public
interest; or (d) an association acting in the interest of one or more of
its members.
The above article is reinforced by
article 258 of the constitution which also highlights the requirement of
standing. Article 258 provides that every person has the right to institute
court proceedings, claiming that this Constitution has been contravened, or is
threatened with contravention. (2) In addition to a person acting in their own
interest, court proceedings under clause (1) may be instituted by (a) a
person acting on behalf of another person who cannot act in their own name; (b)
a person acting as a member of, or in the interest of, a group or class of
persons; (c) a person acting in the public interest; or (d) an
association acting in the interest of one or more of its members. In the case
of Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5
Others[9][9] the Court of Appeal
stated that:
“Moreover, we take note that our
commitment to the values of substantive justice, public participation,
inclusiveness, transparency and accountability under Artcle 10 of the
Constitution by necessity and logic broadens access to the courts. In this
broader context, this Court cannot fashion nor sanction an invitation to a judicial
standard for locus standi that places hurdles on access to the courts except
only when such litigation is hypothetical, abstract or is an abuse of the
judicial process. In the case at hand, the petition was filed before the High
Court by an NGO whose mandate includes the pursuit of constitutionalism and we
therefore reject the argument of lack of standing by counsel for the appellant.
We hold that in the absence of a showing of bad faith as claimed by the
appellant, without more, the 1st respondent had the locus standi to
file the petition. Apart from this, we agree with the superior court below that
the standard guide for locus standi must remain the command in Article 258 of
the Constitution.”
The above articles have been the
basis of the rapid growth of public interest litigations in the country.
A challenge that is emerging is that of
determining whether the civil society and other interested parties are misusing
this provisions regarding standing. In some instances the civil society has
some ulterior motives and political ambitions which may not be connected with
the question that is being determined by the court. At the long run the civil
society will be pushing for their own interests rather than addressing the
genuine needs of the general public. For example, in the case of Consumer
Federation of Kenya v Minister for Information and Communication and 2 others[10][10] the anticipated switch off
designated for 31st December 2012 did not take place as COFEK, the 1st
interested party, filed and obtained injunctive orders halting the intended
migration. The petition was later withdrawn by consent of the parties on 21st
June 2013 thereby enabling the migration process to proceed. Mr. Stephen
Mutoro, the Secretary General of COFEK, was appointed to Digital Television
Commitee on 28th June 2013 but he later resigned from the DTC on 11th July 2013
after the public complained of that state of affairs.
The Aspect of Interested Parties in
Litigation
In this Digital Migration case there
were two interested parties, that is, the Consumer Federation of Kenya (COFEK)
and West Media Ltd who has investment in the media sector. Both parties opposed
the petition. COFEK contended that the digital migration was expensive and was
going to burden Kenyans. This they alleged was due to the fact that the year
was ending and most parents were to be burdened with school fees. It also
alleged that there was no enabling legal framework to address any malpractices
and that digital migration infringed the right of Kenyans to access information
under article 35 of the constitution.
The Constitution of Kenya (Protection
of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2012, defines
an interested party as ‘a person or entity that has an identifiable stake or
legal interest in the proceedings before the court but is not a party to the
proceedings or may not be directly involved in the litigation.’ The aspect of
interested parties in litigation has a stronger connection with the requirement
of legal standing. As it has been discussed above the requirement of standing
is easily dealt with since it is evaluated in the context of articles 22 and
258 of the constitution. The case of Mumo Matemu Case (supra) is
an authority about a party instituting a suit. However, the Court of Appeal did
not determine the considerations of a party wishing to be joined as an
interested party. The constitution of Kenya 2010 requires expeditious disposal
of disputes[11][11]
making it necessary the case that a person applying to be joined as an
interested party should show a real connection with the dispute before court. From
the foregoing it is clear that an interested may not be indifferent to the
outcome of the proceedings in question. The interested party is a person with a
real stake in the proceedings and he is likely to influence the court in making
a determination in his favour.
In the case of Judicial Service
Commission v Speaker of the National Assembly & another[12][12],
by Notice of Motion dated 31st October 2013, Bryan Yongo was
seeking that he should be joined in the suit as an interested party. The
grounds upon which the said application was made were that the applicant
pursuant to Article 251(2) of the Constitution had petitioned for the removal
of Ahmednassir Abdullahi, a sitting member of the Judicial Service
Commission and on 22nd October 2013, the applicant was advised to
appear before the Justice and Legal Affairs Committee of the National Assembly
to prosecute his petition which appearance he made on 24th October
2013 and submitted his petition. Based on the foregoing it was the applicant’s
position that he was a party interested in the proceedings through Articles 258[13][13],
3 and 48 of the Constitution of Kenya. The applicant further averred that the
order issued by the Honourable Court adversely affected his Petition hence the
need for him to be joined in the proceedings as sought. He contended that he
had locus and it was, therefore, in order, for him to be joined as an
interested party.
The court disallowed the Notice of
Motion dated 31st October 2013 but did not make an order as to costs
as the applicant therein was not yet a party to the proceedings[14][14].
The application was dismissed on ground that the applicant had not contended
that his petition was the petition against which the orders were directed and
from the application filed by the applicant it seemed that the petition the
subject of the orders was not the same as the applicant’s petition. The court
further stated that it was incorrect by the applicant to contend that the
orders which were issued herein adversely affected his petition. The court
concluded that it was clear that the applicant’s ground for seeking to be
joined to those proceedings did not disclose “an identifiable stake or legal
interest in the proceedings before the court” as his petition was not the
subject of the proceedings.
Another aspect related to the
interested party is the issue of amicus curiae or friend of the court. As
opposed to the interested party, a friend of the court should be non-partisan
and should not have any connection with the dispute in issue. Amicus curiae
is an expert on an issue which is the subject matter of proceedings but is not
party to the case and serves to benefit the court with their expertise. Amicus
curiae is thus a person who shows that he is possessed of some expertise
relevant to the matters for determination before the Court. Such a person as is
expected of experts is required to be non-partisan and his role is meant to
enable the Court get a clear picture of the issues in dispute in order for the
Court to arrive at an informed and just decision. He is subject to examination
to ascertain his qualifications as an expert. It follows, therefore, that, the
fact that the applicant is partisan does render him unsuitable to be joined in
these proceedings as the friend of the court. The applicant has to show that he
is non-partisan to be allowed as a friend of the court. In the Supreme Court
case of Raila Odinga and Others vs Independent Electoral and Boundaries
Commission and 3 Others[15][15],
the Court declined to allow the Law Society of Kenya and Prof. Yash Pal
Ghai to participate in the said proceedings due to their partisan perceptions.
Intellectual Property and Digital
Migration
Intellectual property refers to
creations of mind. They are protected by special regimes such as copyrights and
patents. The intellectual property in question in this case was broadcast.
Broadcasting is protected by copyright. Broadcasting content was to be
transmitted on a mutual agreement and that could not amount to infringement.
This is in accordance with the copyright Act. Intellectual property has been
recognized by the constitution[16][16].
One of the prayers of the petitioners was ‘An order of permanent
injunction restraining the 4th, 5th, 6th and 7th Respondents by themselves, their
licensees and/or agents, from broadcasting, distributing or in any way
interfering with the Petitioners' programs, broadcasts, copyrighted material
and productions or in any way infringing the Petitioners' intellectual property
rights.’
The petitioners were implying through
the above ground that their intellectual property rights were threatened with
violation hence sought the courts intervention. On the other hand Signet was
categorical that the rights of the petitioners were not threatened with violation.
Signet denied that it violated the petitioners’ right to intellectual property
protection. It submitted that the petitioners’ broadcasting content was always
been transmitted on a mutual agreement and that there was nothing to show
active interception without consent and that the petitioners’ claims were not
honest. Section 29 of the copyright Act provides that Copyright in a broadcast
shall be the exclusive right to control the doing in Kenya of any of the
following acts, namely, the fixation and the rebroadcasting of the whole or a
substantial part of the broadcast and the communication to the public of the
whole or a substantial part of a television broadcast either in its original
form or in any form recognizably derived from the original… Section 35 states
that (1) Copyright shall be infringed by a person who, without the
licence of the owner of the copyright (a) does, or causes to be done, an
act the doing of which is controlled by the copyright… It is clear from the
above provisions that copyright is protected if the petitioners allege any
infringement they are suppose to pursue the claim using the appropriate forum.
In Sanitam Services (EA) Ltd v
Tamia Ltd and Others[17][17] the petitioner was
invoking article 22 and article 40(5) of the constitution claiming patent
infringement. The court held that the plaintiff did not have a cause of action
and in striking out the petition, the court noted that, ‘Any breach of the
intellectual property rights against the respondents can be enforced through
the legal mechanisms provided by statute or common law, where applicable, hence
it is unnecessary to invoke the provisions of Article 22 to enforce what are
ordinary rights.’
It is therefore the case that digital
migration is unlikely to infringe the broadcasters’ intellectual property
rights. This is because access of their broadcast is to be based on mutual
agreement and licensing by the broadcaster.
Freedom of Media and Freedom of
Expression
Article 34 of the Constitution provides
as follows;
(1) Freedom and independence of
electronic, print and all other types of media is guaranteed, but does not
extend to any expression specified in Article 33 (2).
(2) The State shall not (a) 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; or (b) penalise any person for any opinion or view
or the content of any broadcast, publication or dissemination.
(3) Broadcasting and other electronic
media have freedom of establishment, subject only to licensing procedures that
(a) are necessary to regulate the airwaves and other forms of signal
distribution; and (b) are independent of control by government, political
interests or commercial interests.
(4) All State-owned media shall (a) be
free to determine independently the editorial content of their broadcasts or
other communications; (b) be impartial; and (c) afford fair opportunity for the
presentation of divergent views and dissenting opinions.
(5) Parliament shall enact legislation
that provides for the establishment of a body, which shall (a) be independent
of control by government, political interests or commercial interests; (b)
reflect the interests of all sections of the society; and (c) set media
standards and regulate and monitor compliance with those standards.
Article 34 provides for freedom of
media and freedom of establishment. The petitioners contended that they have a
legitimate expectation that they were going to be given the licence and that
the Communication Commission of Kenya violated their right of expression and
freedom of media establishment enshrined in the constitution. The case of Diana
Kethi Kilonzo and Another v Independent Electoral and Boundaries Commission and
Others[18][18], precisely illustrates what
the doctrine of legitimate expectation entails. The court stated that, ‘At
its core, and in its broad sense, the doctrine of legitimate expectation is
said to arise out of a promise made by a public body or official which the
person relying on anticipates will be fulfilled. It is also said to arise out
of the existence of a repeated or regular practice of the public body or
official which could reasonably be expected to continue. Essentially, once
made, the promise or practice creates an estoppel against the public body or
official, so that the person benefitting from the promise or practice would
continue to so benefit, and that the promise or practice would not be withdrawn
without due process or consultation.’
The tendering process is a competitive
process which is clearly defined in the Public Procurement and Disposal
Act. The Act is in line with the provisions of the constitution.
Article 227(1) of the Constitution which provides that, When a State
organ or any other public entity contracts for goods or services, it shall do so
in accordance with a system that is fair, equitable, transparent, competitive
and cost-effective.’ Article 27 of the constitution prohibits any form of
discrimination. The Public Procurement and Disposal Act provides various
ways of tendering but none of them contemplates a situation in which an
individual is given undue advantage over the others as far as issuance of
tenders is concerned. Under section 29 of the Act, the Procurement entity is
entitled to use open tendering under Part V of the Act or an alternative
procedure under Part VI of the Act. The Alternative Procurement procedures
includes restricted tendering, direct procurement, Request for Proposals,
Request for Quotations, Procedures for low-value procurements and specially
permitted procedures. All the above methods are not done in any discriminatory
manner since they are subject to the constitution. If a party is aggrieved in
the tendering process there are well laid procedures of appeal. This is
provided in various sections including section 100 and section 98 of the Public
Procurement and Disposal Act. Section 98 of the Act provides that ‘upon
completing a review the Review Board may do any one or more of the following—
(a) annual anything the procuring entity has done in the procurement proceedings,
including annulling the procurement proceedings in their entirety; (b)
give directions to the procuring entity with respect to anything to be done or
redone in the procurement proceedings; (c) substitute the decision of
the Review Board for any decision of the procuring entity in the procurement
proceedings; and (d) order the payment of costs as between parties to
the review.’
In the case of Kenya Pipeline
Company Limited v Hyosung Ebara Company Limited and Others[19][19], the Court of Appeal held
that “The Review Board is a specialized statutory tribunal established to
deal with all complaints of breach of duty by the procuring entity. ….
“S. 98 of the Act confers wide powers on the Review Board. It is clear from the
nature of powers given to the Review Board including annulling, anything done
by the procurement entity and substituting its decision for that of the
procuring entity that the administrative review envisaged by the Act is indeed
an appeal... It follows that its decision in matters within its jurisdiction
should not be lightly interfered with.”
Therefore, regarding whether and to
what extent the petitioners are entitled to be issued with digital broadcast
licences or any other licenses, by the CCK and whether the issue of the
licences to other licensees to the exclusion of the petitioners is a violation
of Article 33 and 34 of the Constitution depends on the legal framework
governing the issuance of those licenses. The petitioners subjected themselves
to the tendering process and they lost. The law was followed and if there was
any claim of impropriety they were to raise it with the appeal board or bring
judicial review proceeding to challenge the decision. It is, then, apparent
that the petitioners were not and cannot be entitled to broadcast licenses as a
matter of right. The issuing of BSD licence to other licensees to the exclusion
of the petitioners as alleged in the petition is not a violation of Articles 33
and 34 of the Constitution since it was done constitutionally in
accordance with Public Procurement and Disposal Act. This point was illustrated
by Mumbi Ngugi J., in Wananchi Group (Kenya) Limited v Communication
Commission of Kenya and Another[20][20] where she held that,
“As the industry regulator, CCK under
the law currently in force has a duty to implement the policy and law on
broadcasting. The ICT Sector Policy Guidelines policy objectives referred to by
the petitioner include „encouraging the growth of a broadcasting industry that
is efficient, competitive and responsive to audience needs and
susceptibilities, provision of a licensing process and for the acquisition and
allocation of frequencies through an equitable process. The policy objectives
also include „promoting fair competition, innovation and investment in the
broadcasting industry. The legislative and policy provisions must be looked at
and implemented in accordance with the dictates of the Constitution. As public
entities, the respondents are required, in implementing their legislative and
policy mandates, to be guided by the national values and principles of
governance in Article 10, as well as the constitutional provisions that have a
bearing on the operation of the media and access to information by the public,
specifically Articles 33 and 34 of the Constitution. Article 10 of the
Constitution requires that the State, all State organs and all persons observe,
arming others, the principles of good governance, integrity, transparency and
accountability…”
The Right of Access to Information
The right of access to information is
provided under article 35 of the constitution[21][21].
This right of access to information has been internationally recognized and
most regional and international courts have made decisions in recognition of
this fact. In most cases this right has been interpreted as an obligation on
states not to obstruct the flow of information. Whether digital migration
amounts to an obstruction is a matter of debate. But digital migration only
affects televisions which are one among many ways of accessing information.
Recent developments have seen to it that the notion of positive obligation on
part of the state in accessing information is required. This position has
received support from national, regional and international institutions. In
2002 the African Commission on Human and Peoples’ Rights introduced the notion
of a positive obligation to have access to information. Another development was
evident in 2006 when the Inter-American Court of Human Rights ruled in favour
of a right to access to public information. Accordingly, to this ruling,
provides that administrative documents should be made public. Another aspect of
the right to information is the right to know which entails the right to access
crucial information held by the state and individuals. Whether the public is
entitled to the information was answered in the affirmative in this case. The
Court stated that:
“By expressly stipulating the right to
“seek” and “receive” “information”, Article 13 of the Convention [American
Convention on Human Rights] protects the right of all individuals to request
access to State-held information, with the exceptions permitted by the
restrictions established in the Convention. Consequently, this Article protects
the right of the individual to receive such information and the positive
obligation of the State to provide it, so that the individual may have access
to such information or receive an answer that includes a justification when,
for any reason permitted by the Convention, the State is allowed to restrict
access to the information in a specific case. The information should be
provided without the need to prove direct interest or personal involvement in
order to obtain it, except in cases in which a legitimate restriction is
applied. The delivery of information to an individual can, in turn, permit it
to circulate in society, so that the latter can become acquainted with it, have
access to it, and assess it. In this way, the right to freedom of thought and
expression includes the protection of the right of access to State-held
information, which also clearly includes the two dimensions, individual and
social, of the right to freedom of thought and expression that must be
guaranteed simultaneously by the State.”[22][22]
The Overlap between Administrative Law
and Constitutional Law
The petitioner failed to apply to court
to review the decision of CCK in accordance with the Public Procurement and
Disposal Act (Act No. 3 of 2005) and Order 53 of The Civil
Procedure Rules 2010. The petitioners had the right to go for judicial review
or as a constitutional petition. The controversy that arises is whether, if one
chooses one forum to pursue his claim and sits on his right can be allowed to
bring the same claim under the other forum. The question is whether failure to
apply for judicial review can amount to estoppel precluding the petitioner from
raising matters in form of a constitutional petition. The media houses had
representatives in the digital television committee (DTC). The
court in the digital migration case held that, ‘[90]. Even though the
petitioners, as separate companies were not party to the tender process,
litigation of the issue of the tender is barred by the doctrine of issue
estoppels.’ Estoppel is defined in Halsbury‟s Laws of England
(4th Ed.) at p. 861, as ‘An Estoppel which has
come to be known as an Issue Estoppel may arise where a plea of res-judicata
could not be established because the causes of action are not the same. A party
is precluded from contending the contrary of any precise point which having
once already been distinctly put in issue, has been solemnly and with certainty
determined against him. Even if the objects of the first and second actions are
different, the finding on a matter which came directly (not collaterally or
incidentally) in issue on the first action, provided it is embodied in a
judicial decision is final, is conclusive in a second action between the same
parties and their privies. This principle applies whether the point involved in
the earlier decision, and as to which the parties are estopped, is one of fact
or one of law, or one of mixed fact and law.’ In administrative law
there is a limitation in filing a judicial review case which is six months from
the date of the order that is under challenge. Under constitutional law a
petition is to be brought within reasonable time and what is reasonable depends
on the circumstances of the case. The court’s decision regarding estoppels is a
general rule subject to modifications. Misconduct in one in an administrative
law forum cannot in totality bar one from filing a constitutional petition.
Independence of Communication
Commission of Kenya
Section 5 of the Kenya
Information and Communications Act (Chapter 411A of the Laws of Kenya) (“KICA”)
provides that the CCK, shall in performance of its function take into
account, ―(a) any policy guidelines of a general nature relating to the
provisions of this Act notified to it by the Minister and published in the
Gazette (b) Kenya‘s obligations under any international treaty or agreement
relating to the provisions of telecommunication, radio and postal services.’
The communication commission of Kenya
is the body responsible under the Kenya Information and Communication Act,
Chapter 411A, for implementation of international obligations. Kenya has been a
member of the international Telecommunication Union (ITU) since 11th
April 1964. Kenya ratified ITU Convention in 1964 which fixed a switch off
deadline in 17th June 2017. Article 2(5) and (6) provides for
general principles of international law and treaties ratified by Kenya shall
form part of Kenyan law. the constitution of Kenya contemplates the formation
of an independent body but before it has been formed the CCK is
constitutional body responsible for issuing licences in Kenya.
Conclusion
In the case of COFEK v Minister
for Information and Communications and Others[23][23], Lenaola J., granted a
conservatory order on 11th January 2013 to restrain the implementation of the
digital migration pending the hearing of the petition. In considering the
issues that were raised by the petitioners and COFEK the learned judge stated
as follows;
‘The petitioners have clearly
demonstrated that the citizens freedom of information will be limited by the
digital migration. In my view, it is not enough for the respondents to contend
that they have fully sensitized the public on the import and created awareness
of this digital immigration. It is equally not sufficient for them to allege
that they have cushioned the consumers by subsidizing the costs of the set –top
boxes to affordable amounts in order to make them accessible to a common
Kenyan. The respondent has not availed such evidence before this court. I am
satisfied at this stage that the petitioner has clearly demonstrated that the
consumers who have not acquired the required set-tops to receive the digital
transmission will be heavily prejudiced by this migration which harm cannot
reasonably can never be compensated in damages. Even though the Respondents
have proven the extensive measures they have undertaken to create public
awareness of this digital migration since 2006, I am in agreement with the
petitioner that he timing of the switch is not proper. As a country we are in a
crucial stage of the electioneering period. Accordingly, the consumers have the
right to benefit from the information available in the broadcast media as well
as the information available in other media forums to enable them make informed
decisions. In any event, I do not see the hurry for the migration. I am fully
aware that the respondents and the government has everything set and is
prepared for the digital migration especially in Nairobi and its environs. The
rest of the country is unaffected. However, as stated elsewhere above, I am not
satisfied that the citizens are prepared for this migration. I say so because
it is unconverted that the required set tops are available at an estimated
costs of between Kshs.2,500/= to Kshs.5,000/= which amounts the petitioner
claims is way above the reach of many ordinary Kenyans. This are the citizens
who would be heavily prejudiced if they would be without access to the
television in this election period. In any event, I am compelled to grant the
order because the respondents have failed to demonstrate the harm they would
suffer if the digital migration would be held in abeyance until the final
determination of the petition herein. I also note that the global deadline for
the switch off is in 2015 and I believe that the digital migration can and
should await the determination of all the issues raised in the petition.’
In October through December 2013
digital migration was stopped to allow for celebration of the year of Jubilee
and Christmas Day. The reasons for delaying digital migration will be raised in
one way or another. The digital migration will not affect in any way whatsoever
the right of access to information of and freedom media establishment as
discussed above. It is therefore high time that all analogue televisions should
be switched off.
AN OVERVIEW OF THE DIGITAL MIGRATION IN
USA, SOUTH AFRICA AND TANZANIA
DIGITAL MIGRATION IN USA
Digital migration in the USA started as
far back as 2007, when a test was conducted in Wilmington city in North
Carolina. The purpose of the test was to find out the weaknesses of the
transition formula, get feedback from the consumers and rectify any potential
mistakes.
Later, a deadline was put for all
states to have moved to digital transmission by February 2009. Citizens were
given free coupons by the government with which to purchase digital
transmission boxes. Despite the government’s effort, however, only a negligible
number of citizens had acquired the set-top boxes a month to the deadline. This
prompted the parliament to come up with a law to extend the deadline. This was
done through the passing of the DTV Delay Act of 2009 that extended the
deadline to June of the same year.
The deadline still proved hard to beat
for low-income transmitters, which consequently pushed the government to
further extend the deadline to 2012 for the low-power transmitters. As by the
end of 2012 nothing much had changed and the government had no option but to
allow transmission in both analog and digital forms, depending on the
preference of the transmitter.
DIGITAL MIGRATION IN TANZANIA
Tanzania was the first country in
Africa to fully migrate to digital transmission, which was concluded by
December 2012. The transition was implemented in phases as follows:
ž First
consultation document of August 2005. This was made to address changes to the
legal framework guiding the transition to digital transmission.
ž Second
consultation document of 2006. This gave provisions for the issuance of
multiplex licensing
ž Public
education road shows in 2011 to emancipate the masses everything concerning the
transition.
ž Third
consultation document of 2012. The document fixed maximum multiplex charges to
prevent exploitation of consumers by suppliers.
The switch-off began in Dar-es –salaam,
in a manner akin to the Wilmington transition test and spread to the rest of
the country. A summary of the roadmap is provided in the table below:
REFERENCES
Website; howstuffworks.com
Sara.P. & Berry.B. Digital
technology research. Oxford press
Dr. Archibald D. Hart & Dr. Sylvia Hart Frejd Digital
invansion.amazon press
CHAPTER TWO
PURE THEORY OF LAW
The background of his theory was at a
time when the traditional philosophers were according to him contaminated with
political ideology and moralizing on one hand and on the other hand attempted
to reduce the law to natural or social sciences. He proposed a theory that
characterized itself as pure theory of law because it aimed at cognition
focused on the law alone. His discussion was hinged on three main areas:
v Basic norm: the
law is basically a scheme of interpretation
v Relativism and reduction:
he argues that in order to interpret an action as one creating or
modifying the law, it is necessary to show the relevant legal significance of
the act as conferred to it by another legal norm which is normally the basic
norm
v Normatively of the law.
Content is only and only regarded as normative by an agent if the agent regards
that content as valid reason for action.
The paper discusses various coups in
two major coups in Africa; Uganda v Commissioner of Prisons ex parte
Matovu.where issues for determination were
Whether the 1966 Constitution of Uganda
was valid.
Whether the Emergency Powers Act and
the Emergency Powers (Detention) Regulations are ultra vires the constitution.
Whether any of the provisions of
Article 31(1) of the constitution has been contravened in relation to the
applicant having regard to the affidavits filed on behalf of the state on the
other hand.
Held:Applying the
Kelsenian’s principles, the 1966 constitution is a legally valid constitution
and the supreme law of Uganda. The Emergency laws were not ultra vires. The
matter sent back to the judge for disposal in accordance with the court’s
interpretation of the constitution and a direction that a statement of grounds
of detention be supplied.
The paper also discusses the recent
EGYPTIAN COUP DETAT OF 2013 where President Mohammed mursi was
overthrown by the army on 3rd july 2013.
The paper further discuss international
reaction to MILITARY COUPS;
African Union: They viewed the
removal of Morsi as a violation of the Egyptian Constitution which falls under
the AU doctrine on unconstitutional changes of government and thus Egypt was
suspended from the organization.
European Union: They recognized a
change of regime though it was through unconstitutional means and called for a
return to democratic process including approval of a new constitution and
holding of free and fair elections.
United Nations: They expressed
concern of the military interference in the affairs of the state and called for
a quick reinstatement of civilian rule according to principles of democracy.
The group has further evaluated
military coups in relation to Hans’s kelsen pure theory of the law. They have
reached a conclusion that According to Kelsen a revolution occurs whenever the
legal order is replaced in an illegitimate way even if it’s in a way not
prescribed by the former order. It’s irrelevant whether or not the replacement
is effected through a violent uprising or through a movement emanating from the
mass of the people.
We can note that as a result of the
opinions against the military government there have been efforts to revert back
to civilian rule. Some of the efforts made include the holding of e referendum
in mid-January in which a new constitution was passed that paves way for
elections to revert back to democratic rule.
ANALYSIS OF THE SPELUNCEAN EXPLORER’S
CASE
Summary of Facts
This is Fuller’s hypothetical case
involving a group of Speluncean cavers. The four defendants were members of the
Speluncean Society an organization of amateurs interested in the exploration of
caves. A landslide occurred during the exploration. Due to hunger and after
various consultations with Physicians they cast lots amongst themselves. The
lot went against Roger Whetmore, who was then murdered and eaten by the rest.
The defendants were later found guilty of murder.
Theories of Law
Positivist Theory
This theory was advanced by Chief
Justice Truepenny. He stated that when statute is unambiguous it must be
applied by judiciary notwithstanding personal views. According to him clemency
is a matter for the executive, not the judiciary. He affirmed the conviction
but recommended clemency.
Naturalist Theory
Justice Foster advanced the purposive
approach to statute. He argued that the defendants were in a “state of nature”
so normal laws did not apply. He set aside the conviction. However, Justice
Tatting criticized Foster J’s approach. The natural law theory prioritizes
freedom of contract above the right to life. Tatting J contended that purposive
approach to statutory interpretation is difficult when there are multiple
purposes. he did not want defendants to face death penalty given that 10 men
died to rescue them. He withdrew from the case and made no decision.
Sociological Theory
Justice Handy pushed for this theory.
He maintained that Court should take account of public opinion and “common
sense”. 90% of the public wanted the men to face a lesser punishment or be
released. Set aside the convictions.
Textualism Approach
Justice Keen affirmed the convictions
by criticizes Chief Justice’s proposed appeal to Executive for clemency given
need to respect separation of powers. He said that moral considerations are
irrelevant in applying the statute.
Defense of Necessity
For the defence to succeed the
defendant must be reasonably be facing a clear imminent danger be proportionate
to the danger. Medical necessity will suffice in most cases. In the case of the
Speluncean Explorers and R v Dudley and Stephens [1884]14QB273DC the defence
was applied. In both cases public opinion was against the sentence and there
was difficulty in deciding against public opinion.
Separation of Powers
This doctrine’s founder is 18th
C French Philosopher, Montesquieu. Separation of powers refers to the division
of government responsibilities into distinct branches to limit one from
exercising the core functions of another. The legislature makes laws. The
Executive implements and administers the policies enacted by the legislature.
Judiciary interprets the law. Separation was emphasized by Justice Keen.
However, in certain situations, for example, the explorers’ case, there should
be an overlap in functions so as to uphold public opinion.
Parliamentary Supremacy versus
Sovereignty of the People
The legislature is supreme when
creating the law and the court merely interprets. The Court ought to respect
legislative supremacy. The Legislative bodies have absolute sovereignty subject
to public opinion. The legislative authority is derived from the people and it
should be exercised constitutionally. This was emphasized by Justice Handy-
That the legitimacy of laws reflects the will of the people. Article 1 of The
Constitution of Kenya provides that sovereign power belongs to the people of
Kenya and is delegated to the various state organs, that is, Parliament,
Executive and The Judiciary. Clemency does not mean that parliamentary
supremacy is not upheld. Intended for rare cases in which considerations of
justice, humanity and compassion override normal administration of justice.
Article 133(1) of the Constitution of Kenya 2010 provides that power of mercy
is discretionary power exercised by the President in accordance with the advice
of the Advisory Committee.
Death Penalty in Kenya
Death penalty was instigated by the
British to punish capital offenders. The punishment was misused by colonialists
who could use it to silence Kenyans pushing for independence, for example, the
Mau Mau. Sections 204 (Penal code) and Section 297(2) provide for death penalty
for murder and robbery with violence respectively. In 1987 there was last
execution so far. Art 26 Constitution implies a death penalty but in Mutiso v
Republic, the Court of Appeal held that its mandatory nature unconstitutional.
If the explorers case were to be subject to Kenyan laws circumstances would
allow release of the cavers or commutation of their sentence.
CHAPTER THREE
BAIL, BOND AND TERRORISM
INTRODUCTION:
The issue of bail and bond has been of
great concern with regards to
terrorism suspects arraigned in court.
We are going to discuss the
legal framework dealing with terrorism
and anti-terrorism legislations
in Kenya.
Definitions:
Bail – the temporary release of an
accused person awaiting trial,
sometimes on condition that a sum of
money lodged to guarantee
their appearance in court.
Bond – This is form property issued to
the court to guarantee that
the accused will show up at the court
when obligated to do so, for
example bond can be in form of title
deeds, log books, etc.
Surety – Person who agrees to act on
behalf of the other, that is,
the defendant. The surety may be an
individual or an agent.
Terrorism – Terrorism can be
defined as the unofficial or
unauthorized use of violence and
intimidation in the pursuit of
political aims.
Terrorism definitions in International
instruments
UN General Assembly Resolutions;
“1. The States Members of the United
Nations solemnly
reaffirm their unequivocal condemnation
of all acts,
methods and practices of terrorism as
criminal and
unjustifiable, wherever and by
whomsoever
committed, including those that
jeopardize friendly
relations among States and peoples and
threaten the
territorial integrity and security of
States;
2. Criminal acts intended or calculated
to provoke a state of terror in
the general public, a group of persons
or particular persons for
political purposes are in any
circumstance unjustifiable, whatever the
considerations of a political,
philosophical, ideological, racial, ethnic,
religious or any other nature that may
be invoked to justify them;”
UN Security Council Resolution 1566
“Criminal acts, including against
civilians, committed with the intent
to cause death or serious bodily
injury, or taking of hostages, with the
purpose to provoke a state of terror in
the general public or in a group
of persons or particular persons,
intimidate a population or compel a
government or an international
organization to do or to abstain from
doing any act, which constitute
offences within the scope of and as
defined in the international
conventions and protocols relating to
terrorism, are under no circumstances
justifiable by considerations of
a political, philosophical,
ideological, racial, ethnic, religious or other
similar nature.”
Comprehensive Convention on
International Terrorism
“any action, in addition to actions
already specified by the existing
conventions on aspects of terrorism,
the Geneva Conventions and
Security Council resolution 1566
(2004), that is intended to cause
death or serious bodily harm to
civilians or non-combatants, when
the purpose of such an act, by its
nature or context, is to intimidate a
population, or to compel a Government
or an international
organization to do or to abstain from
doing any act.”
HISTORY OF TERRORISM
In the 1st century, Jewish
resistance groups known as zealots killed roman soldiers and Jewish
collaborators in Judea. In the 6th century, more extreme zealots
formed the sicarii who targeted priests and any other collaborators.
Later in the 11th century, shi’ite muslim sect (hashashins) opposed
to the Fatimud rule murdered children and
women indiscriminately. Modern
development of terrorism began during the French revolution reign of terror
(1793-1794). It was a mode of violence to effect politics.
Maxmillien Robespierre a dictator,
justified his ways as necessary in the transformation of the monarchy to a
liberal democracy. This laid down the foundation of modern day terrorism who
believe that terrorism will usher in a better system.
In the 1950’s,
there was use of guerilla tactics by non-state actors due to several factors
which included the flowering of ethic nationalism and
ideologies such as communism. The
Kurdistan Workers’ Party (PKK), formed in 1970 used terrorist tactics to
announce its goal of a
Kurdistate. The liberation tigers of
Tamil Eelam used suicide bombing to wage a battle for independence.
In the 1970’s, the hijacking tactic
became popular. Later in the 1990’s, religious motivated terrorism became
the most profound threat and still is today types of terrorism.
Types of Terrorism
1. State
Terrorism- state use of force to terrorize citizen without declaring war. E.g.
when U.S was aiding the Nicaraguan Contras in the 1980s.
2.
Bioterrorism- intentional release of toxic biological agents to harm and
terrorize civilians in the name of political or other causes. E.g. the
release of Anthrax
3.
Cyber-terrorism-the use of I.T to attack civilians or even government
facilities to draw attention to their cause. The CBK has fallen victim of this
a number of times.
4.
Eco-terrorism- is a recently coined term describing violence in the name
of environmentalism.
5.
Nuclear Terrorism- refers to different ways nuclear materials may be exploited
for terroristic tactics.
6.
Narcoterrorism- situations in which terrorist groups use drug trafficking
to fund their operations.
7.
Religious Terrorism- They claim that their attacks are because they are
defending their religion. They attack large numbers of their enemies. E.g. the
Al Qaeda
8.
Nationalist Terrorism- They use violence and are usually successful at getting
people’s sympathy because they fight for “national liberation”
Forms Of Terrorism
1.
Mission Of No Return- this is usually suicidal. The mission is basically to
carry out the act and get killed alongside their victims or
targets.
2.
Vengence Or Revenge Mission- These usually carry out deadly attacks with the
possibility of getting away if there is a security
lapse.
3.
Destruction Mission- These plant or set explosive devices in buildings,
bridges, targeted personnel vehicles.
4. Hostage
Takers Mission- These carry out missions with an objective of getting a ransom
a political decision or revert/force a decision. E.g. the pirates of the coast
of Somalia
5.
Sniper/ Assassins Mission- These target identified persons and kill them from a
distance or discretely among crowds.
Causes Of Terrorism
Social and political injustice
This is fuelled by the belief that
violence or its threat will be effective, and usher in change.
International Legal Instruments
1. 1963 Convention on Offences and
Certain Other Acts Committed On Board Aircraft (Aircraft Convention)
2. 1970 Convention for the Suppression
of Unlawful Seizure of Aircraft
(Unlawful Seizure Convention)
2010 Protocol Supplementary to the
Convention for the Suppression of Unlawful Seizure of Aircraft
3. 1971 Convention for the Suppression
of Unlawful Acts against the Safety of Civil Aviation (Civil Aviation
Convention)
4. 1973 Convention on the Prevention
and Punishment of Crimes Against Internationally Protected Persons (Diplomatic
Agents Convention)
5. 1979 International Convention
against the Taking of Hostages
(Hostages Convention)
6. 1980 Convention on the Physical
Protection of Nuclear Material
(Nuclear Materials Convention)
7. 1997 International Convention for
the Suppression of Terrorist
Bombings (Terrorist Bombing Convention)
8. 1999 International Convention for
the Suppression of the
Financing of Terrorism (Terrorist
Financing Convention)
9. 2005 International Convention for
the Suppression of Acts of
Nuclear Terrorism (Nuclear Terrorism
Convention)
GENERAL MEASURES TO CURB
TERRORISM
International standards
These include:
-
Countering the financing of terrorism
-
Enhancing transport security and border control
-
Countering use of internet for terrorist purposes
-
Communication
-
Protecting Human Rights
-
Protecting vulnerable targets and engaging the private sector
-
Promoting international cooperation
-
Strengthening international solidarity with victims of terrorism
-
Formation and development of universal organizations that provide a legal
framework for multilateral actions against terrorism
ACTS OF TERRORISM
-
The 1st ever terrorism attack in Kenya was in 1975, hitting the
Starlight Nightclub and Travel Bureau near Hilton hotel.
-
1980 Norfolk Bombing, caused massive destruction and
killed 20 people.
-
1998 American Embassy on 7th August. This was a revenge for American
involvement in the extradition and alleged torture of Egyptian Islamic jihad.
-
2002 Kikambala Bombing on Paradise Hotel where 60
Israelis had just checked in. Within
hours of the attack an Arkia airlines was shot at by two missiles
-
Alshabaab attacks- After operation linda inchi by kenya troops Alshabaab
militia started carrying out retaliatory attacks. Examples are the Kampala
Coach grenade attack, bombing of a matatu
in Pangani and the grand operation at
the Westgate Shopping Mall.
-
September 2001 twin tower bombings. It is one of the most
renowned terrorism attack which
resulted in a massive man hunt of
Osama bin Laden.
-
Yemen hospital attacks December 2013 where over fifty people lost their lives.
-
Kampala bombings by the alshabab on July 2010 during the FIFA world cup finals.
PREVENTION OF TERRORISM BILL, 2012
HISTORY OF THE BILL
Bills seeking to combat terrorism have
been tabled in parliament and passed in the following manner:
2003- Suppression of Terror Bill
2006-Anti-terrorism Bill
2012- Prevention of Terrorism Bill
passed on 2 October 2012
THE 2012 BILL
Definition of “Terrorist Act”
Section 2 of the Bill: Harm to the
person and the public. Serious harm to the property and danger to health
OFFENCES UNDER THE ACT
S.4 Terrorist Act- punishable by 30
years imprisonment.
S.5 assisting terrorists- punishable by
20 years imprisonment.
S. 13 training and recruiting
terrorist- punishable by 30 years imprisonment without the option of a fine.
OPPOSITION TO 2012 BILL
The bill faced stiff opposition on the
basis that it:
-
contravened constitutional rights and targeted Muslim community
-
promoted extrajudicial killings.
-
seizure of property of suspected terrorist..
-
Ambiguous definition of terrorist act.
CONSTITUTIONAL PROVISIONS
-
Article 2(5) general rules of international law shall form
part of the laws of Kenya.
-
Article 2(6) ratified treaties form part of laws of Kenya.
-
Article 26(1) right to life.
-
Article 30 (1) protection from slavery and forced labour.
-
Article 33 freedom of expression.
-
Article 39(1) freedom of movement.
-
Article 238(1) defines national security.
-
Article 239 provides for national security organs.
-
Article 240 establishes the national security council
TERRORISM LEGISLATION IN KENYA.
-
The penal code; section 220 on murder , section 393 on
conspiracy.
-
Criminal procedure code; section 52 on inquiry as to the
truth of information, section 64 on
arrest to prevent
offences, section 65 prevention of
injury to public property.
-
Protection of Aircraft Act.
-
Official Secrets Act; section 4 provides for unauthorized use
of uniforms, passes among others.
-
Fire Arms Act; certifying of fire arms by the fire arms bureau.
-
Non Governmental Organization (coordination)act.
-
Other acts that illegalize financing of terrorism include: Banking Act and
Banking Amendment Act (2001)
BAIL, BOND AND TERRORISM
Bail and bond are constitutional rights
available to any suspect under Article 49(1)(h).
Aboud Rogo & Another v Republic
(2011)eKLR
This right can however be limited on
reasonable grounds, such as if the suspect is likely to further his cause. This
limitation is especially important in the face of terrorism, as terrorism is a
crime of a very peculiar nature and which hurts the state much more directly
than other crimes.
R v Mohamed Ahmed Abdi & 3others
(Westgate case). See
also R v Jermaine Grant.
I’AM ALONE CASE (CANADA V. UNITED
STATES) [1935] R.I.AA 1609
INTRODUCTION
Development of law of the sea
Historical period in development of law
of the sea was characterized by expanding claims of sovereignty. Constant
competition for control of ocean space was witnessed between different states
in the world.
Through three conferences on the Law of
the Sea, the last one running from 1973 to 1982, states negotiated and came up
with the United Nations Convention on Law of the Sea which codified all the
aspects of the law of the sea from the preceding treaties. Different states
have also come up with agreements relating to the law of the sea e.g. Fish
stock Agreement of 1995.
FACTS OF THE CASE
I’AM ALONE CASE (CANADA V. UNITED
STATES) [1935] R.I.AA 1609
I’ am Alone case involved the sinking
of a British ship of Canadian registry controlled and managed by some United
States citizens. It was alleged that the ship was engaging in smuggling
alcoholic liquor into the United States which at the time the liquor
consumption was restricted. It was then ordered to stop for inspection at a
point outside the U.S territorial waters but declined. This led to a pursuit of
the ship by a vessel, Wolcott and after two days of pursuit it was joined by
the coast guard vessel, Dexter, which eventually sunk I’m Alone. This resulted
to death of one person. However, the rest of the crew were rescued.
The sinking of “I am alone” led to
diplomatic row between the US and Canada. Canada claimed that the sinking was
illegal and not justified under the “Convention between The United States Of
America And Great Britain to Aid in The Prevention of The Smuggling Of
Intoxicating Liquors Into The United States”. The parties differed
and the matter was submitted to a commission as it was prescribed by article 4
of that convention.
The U.S claimed that they acted in
exercise of powers conferred on her by the Anglo-American Convention signed by
the US and Britain and Britain could raise no objection since it was within the
one hour steaming zone designated by the convention. Canada contended that the
convention did not confer any right of hot pursuit even within the conventional
limit.
The Canadian government reiterated that
when I’m Alone was to be boarded by Wolcott; she was already out of the
conventional limits. The US counter argued that the ship was nearer to its
shore and within the conventional limits.
Canada further contended that since I’m
Alone was outside the three nautical mile limit of US territorial waters there
was no right to pursue her beyond the conventional limits. The vessel was
further sunk by anther ship, Dexter, which came much later when I’m Alone was
far outside the conventional limits.
Both parties were in agreement that I’m
Alone was outside the three mile limit of the US territorial waters and
referred the matter to a commission comprising of Canadian and US citizens to
adjudicate on the matters.
RELEVANT
PROVISIONS IN THE 1924 AGREEMENT RELATING TO THE CASE
1.His Britannic Majesty agrees that he
will raise no objection to the boarding of private vessels under the British
flag outside the territorial waters by the authorities of the United States,
its territories or possessions in order that enquiries may be addressed to
those on board and an examination be made of the ships papers for the purpose
of ascertaining whether the vessel or those on board are endeavouring to import
or have imported alcoholic beverages into the US, its territories or
possessions in violation of the laws there in force. When such enquiries and
examination show a reasonable ground for suspicion, a search of the vessel may
be instituted.
2. If there is reasonable cause for
belief that the vessel has committed or is committing or attempting to commit
an offence against the laws of the US...
3. The rights conferred by this article
shall not be exercised at a greater distance from the coast of the US, its
territories or possessions that can be traversed in one hour by the vessel
suspected of endeavouring to commit the offence.
Any claim by a British vessel for
compensation on the grounds that it has suffered loss or injury through the
improper or unreasonable exercise of the rights conferred by Article 11 of this
treaty or on the ground that it has not been given the benefit of Article III
shall be referred for the joint consideration of two persons one of whom shall
be nominated by each of the contracting parties.
THE
DECISION OF THE PANEL
In January 1935, six years after
sinking of the I Am Alone, the tribunal set to adjudicate on the matter found
that the sinking of the ship was illegal and directed United States to pay
damages of $50,666. This figure was far below the value sought of $386000.
However, no damages were awarded in respect to the ship and the cargo. The
panel also ordered US to pay the crew the damages for wrongful acts of its
Coast guards. The window of the drowned sailor was compensated with $10,000 and
the commissioners recommended the government of US to apologise for the
wrongful acts of its coast guards. With regard to damages, the arbitration
tribunal decided as follows:
For the captain, John Thomas Randell,
the sum of ........................................ $7,906.00
For John Williams, deceased, to be paid
to his proper representatives ............ 1,250.50
For Jens
Jansen.................................................................................................
1,098.00
For James
Barrett..............................................................................................
1,032.00
For William Wordsworth, deceased, to be
paid to his proper representatives.... 907.00
For Eddie
Young....................................
.......................................................... 999.50
For Chesley
Hobbs...........................................................................................
1,323.50
For Edward
Fouchard.........................................................................................
965.00
For Amanda Mainguy, as
compensation in respect of the death of Leon Mainguy,
For the benefit of herself and the
children of Leon Mainguy (HenrietteMainguy,
REASONS FOR THE DECISION
The arbitration tribunal found that the
day Am alone was sunk, it was employed for illegal for illegal purposes. It was
also declared that the act of sinking the ship by American coast guards was
unlawful. The tribunal further directed America to apologize for the
illegal activities. The arbitration tribunal also considered the following
issues:
1) Who
were the legal owners of the ship-
2) A
significant piece of evidence in connection with the case came to light in the
fall of 1929. New information revealed that American, not Canadians, owned the
I'm Alone, although the vessel sailed under Canadian registry. This evidence
put the Canadian government in the peculiar position of seeking to collect
compensation for an American. This information was regarded by the arbitrators
as of no importance in the circumstances of the case.[24][24]
3) As
provided for in the Convention, The United States might, consistently with the
Convention, use necessary and reasonable force for the purpose of effecting the
objects of boarding, searching, seizing and bringing into port the suspected
vessel; and if sinking should occur incidentally, as a result of the exercise
of necessary and reasonable force for such purpose, the pursuing vessel might
be entirely blameless.
EMERGING ISSUES OF THE CASE AND
DEVELOPMENTB OF LAW OF THE SEA
The issues and decision in the Am Alone
case developed different aspects of the law of the sea especially those
relating to the extent of territorial sea, the doctrine hot pursuit and the
jurisdiction and sovereignty of a coastal state in the sea.
The concept of allowing a coastal state
an additional area in order to enforce its law was also recognised with the
allowance granted to United States of 1 hour streaming time. This is today
recognised in the United Nations Convention on Law of the Sea as the Contagious
Zone which extends 7nautical miles from the territorial sea, seaward.
THE ISSUE OF HOT PURSUIT
ARBITRATION- The UN Charter provides
that all Members shall settle their international disputes by peaceful means in
such a manner that international peace and security, and justice, are not
endangered[25][25].
Such peaceful methods as suggested include: negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice[26][26].
Although the Charter came ex post facto, that had always been the state
practice in conflict resolution. The “ I Am Alone Case” was solved by arbitral
tribunal.
[5][5] 2(6) Any treaty or convention
ratified by Kenya shall form part of the law of Kenya under this Constitution.
body, which shall—
(a) be independent of control by
government, political interests or commercial interests (b) reflect the
interests of all sections of the society; and (c) set media standards and
regulate and monitor compliance with those standards.
[7][7] (1) Parliament shall enact
any legislation required by this Constitution to be enacted to govern a
particular matter within the period specified in the Fifth
[11][11]Article
159 (2) of the constitution provides that in exercising judicial authority, the
courts and tribunals shall be guided by the principle (b) justice shall
not be delayed.
[13][13]
The applicant was invoking provisions of Article 258 of the Constitution which
provides as follows:
(1) Every person has the
right to institute court proceedings, claiming that this Constitution has been
contravened, or is threatened with contravention.
(2) In addition to a person
acting in their own interest, court proceedings under clause (1) may be instituted
by (a) a person acting on behalf of another person who cannot act in
their own name; (b) a person acting as a member of, or in the interest
of, a group or class of persons; (c) a person acting in the public
interest; or (d) an association acting in the interest of one or more of
its members.
[16][16]
Article 40(5) provides that the state shall support, promote, and protect the
intellectual property rights of the people of Kenya. Article 11(2)c also
provides that the state shall promote the intellectual property rights of the
people of Kenya.
[21][21]
Article 35 of the constitution provides that (1) Every citizen has the
right of access to (a) information held by the State; and (b)
information held by another person and required for the exercise or protection
of any right or fundamental freedom. (2) Every person has the right to the
correction or deletion of untrue or misleading information that affects the
person. (3) The State shall publish and publicise any important information
affecting the nation.
[22][22]Inter-American
Court of Human Rights, Claude Reyes et al. v. Chile, Judgment of 19
September 2006
[24][24] Affidavit by Marvin J. Clark, U.S.
State Department, I’m Alone Case, vol. 6, 103-11; Randell, I'm Alone,
266 and 269
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