High Court has delivered a blow to the government after ruling that the Ministry of ICT’s decision to channel all public-sector advertisements exclusively through the Kenya Broadcasting Corporation (KBC) is unconstitutional.
This follows a directive issued by outgoing ICT Principal Secretary Edward Kisiang’ani that restricted government ministries and parastatals to advertising exclusively with KBC.
While giving the directive, Kisiang’ani argued that the move was aimed at reviving the financially struggling KBC
However, in a ruling delivered virtually on Thursday, March 20, Justice Lawrence Mugambi of the High Court declared the directive unconstitutional, stating that it violated principles of good governance, equality, and media freedom as outlined in Articles 10, 27, and 34 of the Constitution.
Justice Mugambi argued that lmiting government advertisements to one broadcaster imposed indirect influence over the media and breached established fair procurement guidelines.
“For the State to make such a fundamental policy shift affecting the procurement of advertising services that exclude privately-owned enterprises is not a mere internal matter to be effected without the involvement of the public, whose concerns must be heard and taken into account before the policy is made,” Judge Mugambi stated.
The judge found that while serving in his capacity as PS ICT, Kisiang’ani unlawfully appropriated to himself non-existent powers.
According to the court, under the Public Procurement and Asset Disposal Act, Kisiangani, who was the second respondent in the petition could not exercise such powers, thus rendering his memo issued a year ago void ab initio (void from the beginning).