The High Court overturned a decision by the Communications Authority of Kenya (CA) that had censured six TV stations for covering live demonstrations called by Azimio Chief Raila Odinga in March of this year.
According to Justice John Chigiti, the decision by former CA Director General Ezra Chiloba was illegal because it violated Article 47 of the constitution.
The article says that where an administrative action is likely to adversely affect the rights of any person, the administrator must give the person affected by the decision an opportunity to be heard.
However, in this case, the TV stations were condemned without being heard.
Chigiti stated that none of the houses were consulted before the decision to censure them.
In a decision issued in March of this year, Chiloba stated that Citizen, NTV, K24, KBC, TV47, and Ebru Africa violated the programming code while covering opposition demonstrations.
He claimed that the stations broadcast footage that was likely to incite ethnic panic or incitement.
“While the Authority promotes the freedom of the press, it is imperative that all broadcasters exercise caution on live broadcast coverage to avoid scenes that would be detrimental to peace and cohesion,” said Chiloba in March.
What followed was a case filed by the Katina Institute, the Law Society of Kenya, the Editors Guild, among others.
The judge agreed with the applicants that the media houses did not violate any of the four legitimate speech limitations under Article 33.
The four are propaganda for war, hate speech, incitement to violence, and advocacy for hatred.
Chigiti claimed that an error influenced the CA decision because the cited section of programming code does not say what the CA claims it says.
He went on to say that because the code was not gazette, it is not a “law” that can limit anyone’s freedom.
He said the code had expired and that it had no legal effect.
“This was a censure that was generated unfairly on the part of Chiloba as the decision-making authority, as it did not observe the rules of justice,” he said.
The Judge ordered the CA to review the programming code for Kenyan broadcasting services while also suspending his order for a year.