High Court declares gov't advertising monopoly unconstitutional

The decision, delivered virtually by Justice Lawrence Mugambi, overturned an order issued by ICT Principal Secretary Edward Kisiang'ani in March 2023 that required all government ministries, state agencies, independent commissions, and public universities to place their radio and television advertisements exclusively with KBC.

Justice Mugambi ruled that the directive violated Articles 10 and 27 of the Kenyan Constitution, which establish the principles of good governance, equality, and nondiscrimination. 

He went on to say that the directive violated Article 34, which guarantees media freedom. 

The court determined that restricting government advertisements to a single broadcaster constituted indirect control over the media and violated fair procurement procedures.

The judge also noted that Prof. Kisiang'ani had exceeded his authority, stating that such a policy decision could only be legally made by the Treasury Cabinet Secretary. 

The Principal Secretary's directive was null and void because he unlawfully assumed powers he did not possess.

Justice Mugambi concluded that excluding private media from government advertisements could not withstand constitutional scrutiny because it undermined both media freedom and the principles of fair competition.

Prof. Kisiang'ani issued the contentious directive in March 2023, claiming that it was intended to revive the financially struggling KBC. 

The Principal Secretary claimed that the move was consistent with a 2015 Treasury circular that announced the Cabinet's decision to centralize public sector advertising. 

According to Prof. Kisiang’ani, the directive sought to ensure that public sector advertisements were handled exclusively by KBC upon authorization by the Government Advertising Agency (GAA).

In a circular to all ministries, Prof. Kisiang’ani stated that the directive would not only revive KBC but also ensure timely payment for advertising services, thereby preventing the accumulation of debts to private media houses. 

He emphasized that the move aligned with the government’s broader policy of reviving ailing public sector entities and ensuring that public-private partnerships were not skewed against state institutions.

“Going forward, therefore, it has been deemed prudent to initiate measures to ensure that as public sector advertisers seek to access their target audiences through campaigns and other statutory announcements, the government leverages the provisions within its realm to revive and fully utilize its institutions,” Prof. Kisiang’ani said at the time.