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At
the government's mercy again
by John Kamau, Rights Features Service
(July 17,
2000) The fate of Kenya's first private radio station,
Citizen Radio, once again hangs in the balance after Kenya's Court
of Appeal (the highest in Kenya) refused to order the reconnection
of the station transmitters and restoration of its broadcasting
frequencies pending the hearing of a lawsuit filed by the station.
 Observers
now say that radio and television stations in Kenya, motivated
by fear, will have to toe the government line rather than face
the fate the Citizen Radio is finding itself in.
Citizen Radio has been
in court for most of this year after its transmitters were switched
off on allegations that it had not paid its frequency bills and
on accusations that its broadcasts were jamming other frequencies.
Although Citizen Radio
has been sporadically on air in the countryside, even after a
lower court ordered that the status quo be maintained pending
the current appeal, the new ruling now puts Citizen's future on
the rocks.
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Citizen
Radio owner S. K. Macharia suffered a legal setback in Kenya's
Court of Appeals. |
Lower court ruling
upheld
Delivering the ruling
on July 14, three court of appeal judges said they were not satisfied
that a "patent illegality" had been committed by the defendants
and did not see a need to issue a mandatory injunction to restrain
the three agencies.
The court also ordered
S. K. Macharia's Royal Media, the company that runs Citizen Radio
and Television, to meet all the demands set by the lower court
if he wants to broadcast.
The Court further upheld
a February 29 judgment by the lower court that refused to restrain
Telkom Kenya, Communication Commission of Kenya (CCK), and the
state-run Kenya Broadcasting Corporation (KBC) from interfering
with Citizen's facilities and frequencies.
That now means that
the temporary order issued by the same
judge, a day after his judgment to allow the current appeal,
will now be void.
On March 1, the lower
court judge overturned his February 29 ruling and ordered the
three agencies to re-connect Citizen Radio and Television station
facilities and also ordered CCK to grant the station the frequencies
it had cancelled. The March 1 order came two weeks after the
Digital Freedom Network sent a letter to the Kenyan government
protesting several recent attacks on Kenyan media, including the
case against Citizen.
The new Court of Appeals
judgment leaves Citizen Radio at the mercy of the three agencies
once again.
Popular broadcasts
Citizen Radio, Kenya's
first independent radio station, ran into trouble early in the
year after its broadcasts became popular in areas controlled by
the ruling Kenya African National Union (Kanu) party, led by 74-year
old President Daniel arap Moi.
| Citizen
Radio owner S. K. Macharia fears the legal action against
his station is retribution for failing to deliver votes to
Kenyan President Daniel arap Moi. |
Insiders told the Nairobi-based
human rights news organization Rights Features Service that the
station trouble started after the station owner fell out with
President Moi.
A former confidant
of President Moi, Macharia — a member of the Kikuyu tribe
that dominates the opposition — fell out with the president
after he failed to have Moi make inroads into the Kikuyu tribe
despite leading a high level campaign soliciting for votes in
the central provinces of Kenya. Macharia was the chairman of a
lobby group that campaigned for Moi during the 1997 general election.
It was after he fell
out with Moi that his station was at first accused of broadcasting
"anti-government messages" — which in the Kenyan political
jargon means giving the opposition politicians a forum. The accusations
were later twisted and the station was accused of broadcasting
from the wrong site and for failing to pay broadcasting fees leading
to the current court cases.
Macharia insists that
he has paid all the fees arrears and dismissed the issue as a
"camouflage." He insists that the real issue surrounding the six-month
saga is whether certain audiences in the Rift Valley province
should listen to the independent Citizen Radio rather than the
state-run Kenya Broadcasting Corporation.
"Reasonable" conditions
The three Court of
Appeal judges — R.S.C. Omolo, P.K. Tunoi, and A.B. Shah —
argued that the conditions set by the lower court before Citizen
Radio could re-start its operations were "reasonable". (All judges
in Kenya are appointed by the President)
The conditions include
the payment of Kenya shillings 20 million (US$286,000) demanded
by Communication Commission of Kenya as arrears.
Although the judges
said "it will be a matter of the trial court to decide whether
or not Royal Media had to pay (Kenya shillings 20 million)…for
both 1998 and 1999 fees."
 They
also felt that since Royal Media says it has invested Kenya shillings
600 million (US$8.2 million) in its broadcasting venture in Kenya
and it earns Kenya shillings 10,000 (US$143) a minute from its
broadcasts, it was in a position to pay the money. "With these
facts we do not see any reason or cause why the applicant cannot
pay arrears of fees," the judges said.
"We are not in a position
to say, from the record before us, that the applicant has paid
all agreed fees. We are also unable to say that the applicant
was bound to pay the sum of Shillings 3.4 million only and no
more. In these circumstances and as the burden of proof was on
the applicant to establish a prima facie case with a probability
of success we are not able to say at this stage that the learned
[Justice Kasanga Mulwa, the lower court judge who originally heard
the case] may have applied any wrong principle in not granting
the injunctions sought."
On the contentious
issue of Citizen's broadcasting to the Rift Valley audience, the
judges dwelt on CCK accusations that Citizen has installed its
transmitter on the wrong site. They failed to give any orders
on that insisting that "the dispute as to the proper sitting of
frequency 100.5 MHz; that dispute will have to be resolved by
the trial court."
The judges refused
to be drawn to the politics behind the saga and maintained that
"the dispute between the parties is purely and simply an alleged
breach of contract."
Citizen's requests
Royal Media had asked
the court of appeal to order the following:
- that Telkom Kenya
to reconnect its electric power and other equipment at Londiani
Hill.
- that Citizen be
permitted to resume its from Londiani Hill.
- that Telkom Kenya's
agents and employees be restrained from interfering with Citizen's
broadcast equipment.
- that CCK be restrained
from interfering in any manner from Citizen's equipment at Nairobi,
Saba Saba, Nyeri, Nanyuki, Nyambene, Kinangop and Rongai (Londiani
Hill).that CCK be restrained from inducing Telkom Kenya and
Kenya Broadcasting Corporation to break their respective transmitter
facilities and contracts with Citizen Radio and Television.
- that the Kenya Broadcasting
Corporation be compelled by a mandatory injunction to switch
on Citizen's broadcasting transmitter and equipment at Nyeri
Nyambene transmitting stations.
In failing to issue
a mandatory injunction against the three agencies, the judges
have thus allowed the three agencies to switch off Citizen or
any other station at will — yet another setback for media
freedom in Kenya.
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