The shutdown of live TV broadcast by the state during January 30, 2018 mock swearing-in of Raila Odinga as the "people's president" was legal, a court has ruled.
In what could spark uproar among media freedom campaigners, the decision says the government is within its legal rights to shut down any media broadcast that its officials deem to be propagating an illegality.
The court pronounced itself in the petition filed in March 2018 by the Law Society of Kenya (LSK) to challenge the decision by the government to stop live TV broadcast of the mock swearing-in of then NASA leader Raila as the "people’s president" in Uhuru Park.
Judge Antony Mrima held the government has a responsibility to take every lawful measure to preserve public security and stop propagation of any illegality.
The government had stopped the live broadcast on Citizen TV, KTN News and NTV that showed the protest ahead of the charged event in Uhuru Park on January 30, 2018.
The LSK said it was not until February 8, when the channels were brought back on air.
Veteran human rights activist and lawyer Hussein Khalid told the Star the decision arms the already heavy hands of the state in dealing with dissidents.
"This decision is unacceptable because in the current times where protests are ongoing, the government can just decide it is illegal to cover it and target specific stations," he said.
The court has not given what parameters should be used by the state in declaring an event illegal, what notice procedures should be observed and what proportion of the punitive measures should be applied, Khalid said.
The LSK complained that the decision to shut down the media outlets not only violated the values and principles in the Constitution, but also constituted a serious threat to the rule of law, order and administration of justice.
It asserted that “the shutdown was a violation of Article 33(1) of the Constitution that entitles every person, including the members of public, the freedom to seek, receive and impart information.”
It also complained that the state was in breach of Article 45 of the Constitution and Section 5A of the Kenya Information and Communications Act, which requires the Communications Authority to be free from control by government political or commercial interests in performance of its duties.
The shutdown also violated the right under Article 34(1) of the Constitution that guarantees freedom of electronic, print and all other types of media, the petition said.
But former Interior CS Fred Matiang’i, former ICT CS Joe Mucheru, the Communications Authority director general and the Attorney General said the action by the state was in the interest of public security.
They told the court the media houses had been well-briefed days running up to the shutdown that the mock swearing-in was illegal and could pose serious security threats.
They said the media has a responsibility to operate within the law and not highlight any activity that is unlawful or that which has potential to breach public peace.
The court, in its analysis and decision, found that the "swearing-in" was illegal as it attempted to set up a parallel power structure in the country that runs counter to Article 3 of the Constitution.
It says the purported swearing-in did not have any legal protection and should have been ignored by the media outlets as it amounted to propagating an illegality.
“The installation of the 'peoples’ president' by way of swearing-in was, an attempt to establish a government otherwise than in compliance with the Constitution,” the judgment reads.
The TV stations, it says, had the obligation “to respect, uphold and defend the Constitution, by refraining from perpetuating an event that had its core objective of not only subverting and undermining the democratic will of the people, but also had the potential of causing widespread civil unrest at the very least”.
“The [TV stations] were, therefore, out to further an activity which was specifically restrained by the Constitution [and] such actions cannot be deemed as normal broadcasting services,” it says.
The Communications Authority, at that time under Francis Wangusi as director general, “was, hence, within its constitutional and statutory mandate to ensure that the unconstitutional actions by the interested parties were not permitted to flourish”.
“Having chosen not to obey the Constitution and the law, the [TV stations] willingly and intentionally, exposed themselves to all and any legal perils which included the impugned action by the [Communications Authority].”
The government’s collective decision in the circumstances of the case, the judge say, “was reasonable and justifiable in an open democratic based on human dignity, equality and freedom to the extent that it forestalled an unconstitutionality and an illegality.”