He wants the court to issue an order compelling the government to compensate the TV stations for pecuniary loss incurred during the switch off as well as general damages for violation of his rights as a consumer and the media houses.
The activist argues that there is an immediate cause for concern over the constitutionality of the government’s action of switching off television.
He argues that Article 33(1) guarantees to every person the right to freedom of expression, which includes, freedom to seek, receive or impart information or ideas.
Activist Okiya Omtatah has moved to court seeking a declaration that the switch off of TV stations by the government is illegal and against the Constitution.
In a petition to be filed this morning, Mr Omtatah argues that the move by the State to shut down TV stations including NTV, Citizen and KTN News is a violation of Article 33 and 34 of the Constitution.
He wants the court to issue an order compelling the government to compensate the TV stations for pecuniary loss incurred during the switch off as well as general damages for violation of his rights as a consumer and the media houses.
The activist argues that there is an immediate cause for concern over the constitutionality of the government’s action of switching off television.
“Without warning and without giving any reasons, in the morning of 30th January, 2018, the Respondents switched off (shut down) free to air transmission on television channels owned by the first to third interested parties,” he said in the petition.
He argues that Article 33(1) guarantees to every person the right to freedom of expression, which includes, freedom to seek, receive or impart information or ideas.
Also, the public's right to information under Article 35 is directly affected since the switch off curtailed the public’s right of access to information broadcast by the media houses.
Further, Mr Omtatah argues that Article 34(2)(b) forbids the State from penalising any person for any opinion or view or the content of any broadcast, publication or dissemination, outside Article 33(2).
It is his argument that the action violates the right to freedom of expression by limiting freedom of expression on grounds that have no proximate relation to the limitations permitted by the Constitution on the freedom of expression.
The government switched off free to air transmission 30th January
On January 31, Interior CS Fred Matiang'i issued a press statement justifying the ban on free to air transmission on television channels.
Dr Matiang'i also stated that the ban would last for as long as the government required to carry out investigations.
"In the statement, which signals a return to the KANU dictatorship which the people of Kenya rejected, the government urges the following unconstitutional and totally unacceptable position that it is justified to violate the constitution and to break the law to keep the peace," he said in the petition.
The activist says the choice between the law and peace is false and if there is a state of emergency, the government can invoke Article 58 of the Constitution, but it has not.
The pleas that it is addressing an emergency, he said, are unfounded in law and, therefore, invalid and void.
Mr Omtatah says Article 33(1) guarantees every person the right to freedom of expression, which includes the freedom to seek, receive or impart information or ideas.
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