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'Non-existent powers': Court quashes PS Kisiang’ani order restricting State advertising to KBC
Broadcast and Telecommunications Principal Secretary Edward Kisiangani.
The High Court has quashed a government directive issued last year restricting public advertising in ministries and State corporations to the Kenya Broadcasting Corporation (KBC).
High Court judge Lawrence Mugambi said the March 7, 2024, memo by Broadcasting PS Prof Edward Kisiang’ani was illegal as he 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,” said the judge.
The court further said a policy that perpetuates a discriminative exclusion in procurement of public goods and services is illegal.
“For the State to make such a fundamental policy shift affecting the procurement of advertising services that excludes 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,” said the judge.
In the memo, the PS had directed all principal secretaries, CEOs 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) had challenged the memo, arguing that the government did not 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 introduction of the memorandum.
Legality of GAA
In a separate case, the LSK challenged the legality of Government Advertising Agency (GAA).
Under GAA, LSK notes, government advertising was undertaken through the My.Gov publication which was intended to create a window for disseminating crucial information on government procurement, request for services, public service job advertisements and other vital activities.
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.
The government then floated a tender upon the expiry of the contract and in breach of tendering process, 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
Hearing of the case is ongoing.