The High Court yesterday ruled that a decision by sacked Broadcasting and Telecommunications Principal Secretary Edward Kisiang’ani to monopolise government advertisements was unconstitutional.

Justice Lawrence Mugambi annulled a March 2024 memo that awarded the Kenya Broadcasting Corporation (KBC) an exclusive contract to handle all government advertisements, effectively making KBC the sole distributor of government information.

Mugambi determined that the decision violated Articles 10 and 27 of the Constitution, which address principles of good governance, equality, and freedom from discrimination.

“The memo communicating this policy does not satisfy the condition set out in the Constitution. I therefore find that the memo is a threat to the freedom of the media and article 34 of the Constitution,” the judge ruled.

“The effect of the memo was that all ministries, State agencies, independent commissions and public universities were required to exclusively air their advertisements with the national broadcaster.”

In his ruling, Mugambi said the PS had overstepped his authority.

“The PS unlawfully appropriated himself inexistent powers. He did not have the powers to issue such a memo, rendering his actions null and void,” he ruled.

The responsibility for such policy direction could only be lawfully issued by the National Treasury Cabinet Secretary, not Kisiang’ani, according to the court.

The judge explained that excluding private media outlets and indirect government control by circumventing the procurement process failed to meet constitutional standards.

Laws flouted

The controversy intensified following Kisiang’ani’s recent cancellation of an offer for Standard Media Group to run a media campaign for the National Irrigation Sector Investment Plan launch.

The case was filed by the Law Society of Kenya (LSK), Kenya Editors Guild (KEG), and Kenya Union of Journalists (KUJ), which sought to have the memo quashed as unlawful.

They argued that Kisiang’ani’s directive flouted laws on government information and ignored Kenya’s free market policy.

The three organisations maintained that the action violated Article 35 of the Constitution, which guarantees citizens the right to access information held by the State and requires the government to publish and publicise important information affecting the nation. They contended that Kisiang’ani’s actions threatened the survival of independent media.

The judge ruled that “a policy that perpetuates a discriminative exclusion in procurement of public goods and services is illegal”, adding that “such a decision 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”.

‘Arbitrary directives’

Media professionals have welcomed the ruling. KEG president Zubeidah Kananu said in a statement: “This decision is a significant victory for the media industry, which has been grappling with arbitrary and unconstitutional directives that threaten its sustainability and independence.

“It reinforces the need for fair and transparent policies that support a pluralistic and diverse media landscape.”

She added, “We took this stand to protect the integrity of the media sector and ensure that government resources are allocated in a manner that upholds the principles of fairness and non-discrimination.

“We urge the government to respect this ruling and engage in meaningful dialogue with media stakeholders to develop policies that promote a free, independent, and sustainable press in Kenya.”

KUJ secretary-general Erick Oduor called the ruling timely, saying, “We totally agree with the ruling. Kisiang’ani was a man operating on his own. His policies were totally not in good faith.”

In a government reshuffle yesterday, Kisiang’ani was removed as PS and posted to State House as an adviser.