The switchover to digital broadcasting has been delayed as a result of legal challenges

A migration from analogue to digital broadcasting is on the cards in Kenya, although in March 2014 it was delayed, calling into question both when the reform would happen and how the new service would be provided. Legal challenges have pushed back the change several times from an original deadline of the end of 2012, and the issue has been appealed to the Supreme Court of Kenya.

Due Process 

A court verdict at the appellate level at the end of March 2014 moved the deadline to switch off analogue broadcasts to September 30, 2014. Digital broadcasting services are available in most of the country already – around 70% of it as of August 2013. However, the court ruling gave Kenyans additional time to purchase a set-top box to convert digital signals before the analogue ones are turned off, and called into question what service providers would be licensed to transmit the signals. A subsequent ruling by the Supreme Court in September 2014 delayed the deadline for switching off analogue signals by 90 days.

Member countries of the International Telecommunication Union (ITU) are committed to moving from analogue to digital broadcasting by June 2015. Digital broadcasting is considered a more efficient use of spectrum because signals can be encoded and compressed. The amount of frequency needed for one analogue channel can fit eight compressed digital channels at standard definition.

Controversy

In Kenya the controversy centres on whether foreign firms or local broadcasters will be allocated the spectrum to provide the content. The Communications Commission of Kenya (CCK) awarded licences to Signet in 2009, a unit of Kenya Broadcasting Corporation, and to Chinese-owned Pan Africa Network Group (PANG), in 2011. A trio of local broadcasters have been fighting the 2011 decision in court, and judges in the court of appeals agreed in a ruling on March 28, 2014 with the trio’s allegation that the tendering process was not legal.

The trio of local broadcasters, Nation Media Group, the Standard Group and Royal Media, claimed that the tendering process violated the country’s constitution because it was overseen by the CCK, a regulator the broadcasters say is not independent, as required. In their ruling the appeals court judges ordered a fresh tender process, but also mandated that the three plaintiffs be given a signal distribution licence regardless of any new outcome of that process. Several days later the government announced that it would appeal that verdict to the Supreme Court, arguing that the lower-level body was not authorised to make such a ruling and that the tender was conducted legally.

The judges agreed with the lawsuit’s contention that the CCK was not the appropriate body to conduct the tendering process because Kenya’s 2010 constitution mandates that it be replaced by a successor called the Communications Authority of Kenya (CA). Under the new constitution, the body responsible for licensing broadcasters must be free from the control of two arms of government, the executive branch and the National Assembly. A law was passed in late 2013 to provide specifics for this process, and after some delays, the CCK formally rebranded as the CA in June 2014.

Appealing Options 

For the government, the decision to appeal the court ruling against PANG was in large part based on concerns about protecting the rights of foreign investors. To strip PANG of its licence could deter other foreign investors by creating uncertainty. PANG has already established a network that will cover 80% of the country. Regardless of how the case is decided, further investment will be needed to complete Kenya’s digital migration. Digital television channels can be broadcast through terrestrial networks or satellite. In this case existing infrastructure will likely be able to cover only 80% of the population. For the rest of the country, especially rural areas, satellite service may be needed.