The Kenyan High Court has ruled that the government’s directive to channel all public-sector advertisements exclusively through the Kenya Broadcasting Corporation (KBC) is unconstitutional. The landmark decision, delivered virtually by Justice Lawrence Mugambi, overturns a directive issued in March 2023 by ICT Principal Secretary Edward Kisiang’ani.
The directive had mandated that all government ministries, state agencies, independent commissions, and public universities place their radio and television advertisements solely with KBC. However, the court found this order to be in violation of Articles 10 and 27 of the Kenyan Constitution, which uphold principles of good governance, equality, and non-discrimination. Furthermore, the ruling established that the directive infringed upon Article 34, which guarantees media freedom in Kenya.
Justice Mugambi emphasized that restricting government advertisements to a single broadcaster amounted to indirect state control over the media. He also ruled that the directive violated fair procurement procedures by limiting competition and unfairly disadvantaging private media outlets.
The court further determined that ICT Principal Secretary Kisiang’ani had exceeded his authority in issuing the directive. Justice Mugambi stated that such a policy decision could only be legally made by the Treasury Cabinet Secretary, reinforcing that the Principal Secretary had unlawfully assumed powers beyond his mandate. Consequently, the directive was declared null and void.
Prof. Kisiang’ani had justified the policy as a means to financially revive the struggling KBC, arguing that it aligned with a 2015 Treasury circular that centralized public-sector advertising. He maintained that routing all government advertisements through KBC would ensure timely payments and prevent debt accumulation by private media houses. Additionally, he asserted that the move would strengthen state institutions and balance public-private partnerships in media.
Despite these justifications, the court found that excluding private media from government advertising could not withstand constitutional scrutiny. The ruling reaffirmed media freedom and fair competition in Kenya’s broadcasting sector, dealing a significant blow to efforts aimed at monopolizing government communication channels.
This decision marks a victory for media independence and fair competition, ensuring that all broadcasters, both public and private, have equal opportunities to benefit from government advertising contracts.
