The High Court has quashed a government directive issued last year restricting public advertising in ministries and state corporations to Kenya Broadcasting Corporation (KBC).
High Court Judge Lawrence Mugambi said the memo by Broadcasting Principal Secretary (PS) Edward Kisiang’ani on March 7, 2024 was illegal as the PS had no such powers.
“It follows, therefore, that the 2nd respondent (PS Kisiang’ani) unlawfully appropriated unto himself non-existent powers. Under the Public Procurement and Asset Disposal Act, the second respondent has no capacity to exercise such powers, thus rendering his memo void ab initio,” ruled the judge.
The court further said a policy that perpetuates a discriminative exclusion in procurement of public goods and services and does not promote transparency and competitiveness in procurement of public services was illegal.
“For the State to make such a fundamental policy shift affecting the procurement of advertising services that excludes the privately owned enterprises, 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,” ruled the judge.
In the memo, the PS had directed all PSs, chief executive officers of state corporations, semi-autonomous and autonomous government agencies, independent commissions and vice chancellors of public universities, to restrict their advertising for the next two years to KBC as well as Convergence Africa Media Ltd.
The Law Society of Kenya (LSK) challenged the memo arguing that the government did not reach out, consult with media stakeholders, consumers of government information and the people of Kenya generally, who are adversely affected or are likely to be adversely affected by the memorandum.
In a separate case, the society has challenged the legality of the Government Advertising Agency (GAA) through a circular by the Treasury in 2015.
The LSK moved to court after the government purported to single source and picked Convergence Media and The Star Publications as the only successful bidders, making them the sole printers and distributors of My-Gov publication.
The publication was regularly printed and used to be circulated by four daily newspapers- Daily Nation, The Standard, The Star and The People Daily but the contract expired in December 2023.
LSK pointed out that government advertising was undertaken through the My.Gov publication which was intended to create a nationwide window for disseminating crucial information on government procurement, request for services, public service job advertisements and other vital activities. The matter is pending determination.
On Thursday, Justice Mugambi said under the Public Procurement and Asset Disposal Act, it is the primary responsibility of the accounting officer of a procurement entity to ensure that the particular public entity complies with the Act.
He said the Act does not allow the PS to direct other accounting officers on procurement decisions, and his decision therefore, was tantamount to usurping the statutory authority given to accounting officers of respective procurement entities.
“In any case, even assuming that such a policy instruction could lawfully be issued as a government policy decision, the responsibility of issuance of such a policy direction under the Public Procurement and Asset Disposal Act is not within the docket of the second respondent,” added the judge.
The judge said when a decision is made without consulting the public, the result can never be an informed decision.
“It is this court's finding that the decision represents a major shift that departs from the laid-down principles of procurement of public services, with grave implications to other stakeholders within that operating environment, and such a decision required to abide by the principles of public participation,” said the judge.
Justice Mugambi said plans to revitalize the KBC through direct or public resources on advertisement may be a good idea, its effect might be calamitous.
“Rather than support co-existence of both public and private media to ensure there is plurality of the media as a constant of a true democratic society, the state is nurturing economic discrimination of the private media by a policy of exclusion that bars it from competing for government advertisements in favor of strengthening the government-owned entity by circumventing the procurement principles to its favour,” observed the judge
The judge said given the significance of the freedom of the media in any constitutional democracy, it was discriminatory to circumvent the procurement process to exclude private media from government advertisement.
