constitutionality of sections 46 and 46A to 46G of the Copyright Act in relation to the right to property by requiring a rights holder to seek a license before exercising/exploiting/administering its own rights of the Copyright Act

Brief facts

The petitioner (Music Copyright Society of Kenya (MCSK)) contended the infringement of copyright rights and sought various declarations against the respondents. In particular, the petitioner contended that the Kenya Copyright Board (KECOBO), the 1^st respondent, was unlawfully interfering with its operations in the guise of exercising oversight and control under the Copyright Act. 

The petitioner was aggrieved by the alleged forceful and arbitrary approach of the 1^st respondent in appropriating its rights and vesting them in third parties without any contractual or commercial relationship with the petitioner.

To that end, the petitioner challenged the constitutionality of sections 46 and 46A to 46G of the Copyright Act for allegedly violating the right to property as the provisions allegedly perpetrated the infringement of intellectual property rights by requiring a rights holder to seek a license before exercising/exploiting/administering its own rights of the Copyright Act; and for violating the right to equality and freedom from discrimination to the extent that it allegedly allowed the Cabinet Secretary, Ministry of ICT, Innovation and Youth Affairs to arbitrarily peg value of music/tariff to a percentage of business permit and by further allegedly perpetuating discrimination in violating the right to property by imposing a flat rate tariff on broadcasts of musical works. 

Issues

1. What principles did the court consider in:
   1. interpreting the Constitution;
   2. interpreting statute; and
   3. interpreting statute vis--vis the Constitution.
2. Whether decisions by multi-judge benches of the High Court were binding to a single-judge bench of the High Court.
3. Whether a petition challenging the constitutionality of a statutory provision that had previously been upheld as constitutional by a court of concurrent jurisdiction was res judicata.
4. Whether a court was at liberty to consider the constitutionality or otherwise of a statutory provision if a court of concurrent jurisdiction had already declared such a provision as constitutional.
5. Whether the doctrine of exhaustion was applicable in circumstances where the matters to be raised in a suit far exceeded the jurisdiction of the requisite tribunal.
6. What were the exceptions to the doctrine of exhaustion?
7. Whether the Music Copyright Society of Kenya was a Collective Management Organisation (CMO) within the meaning of the Copyright Act.
8. Whether sections 46 and 46A to 46G of the Copyright Act violated the right to property as the provisions perpetrated the infringement of intellectual property rights by requiring a rights holder to seek a license before exercising/exploiting/administering its own rights.
9. Whether section 46A of the Copyright Act violated the right to equality and freedom from discrimination of artists to the extent that it allowed the Cabinet Secretary, Ministry of ICT, Innovation and Youth Affairs to arbitrarily peg the value of music/tariff to a percentage of business permit and by further perpetuating discrimination in violating the right to property by imposing a flat rate tariff on broadcasts of musical works.
10. Whether one could be cited for disobeying a court order if the order did not relate to such a party.

Held

1. The petition in Francis Nzioki Kavuu v Kenya Copyright Board & 3 others; Kenya Music Copyright Society of Kenya & 3 others (Interested Parties) [2021] eKLR dealt with the issue of whether a forensic audit called for by KECOBO amounted to retrospective application of the Copyright Act, 2001 (as amended in 2019) and whether KECOBO, in applying the law retrospectively, had violated Articles 10, 36 and 47 of the Constitution or any other law. The issues in the Francis Nzioki Kavuu v Kenya Copyright Board & 3 others; Kenya Music Copyright Society of Kenya & 3 others case (supra) were distinct from those raised in the current proceedings.
2. Whereas  Laban Toto Juma & 4 Others v Kenya Copyright Board & 9 others [2018] eKLR dealt with whether section 46(5) of the Copyright Act violated articles 36(1) and (2) and 40 of the Constitution, the ground for such the challenge was whether section 46(5) of the Copyright Act was in violation of the Constitution for allowing only one licensed collecting society to operate in a class of rights and category of works. As a result, the Laban Toto case interrogated the decision by KECOBO to licence Music Publishers Association of Kenya (MPAKE) to the exclusion of MCSK (the petitioner). The issues in the instant Petition dealt with whether sections 46 and 46A to G of the Copyright Act violated articles 27 and 40 of the Constitution on the basis of the allegation that the petitioner, Music Copyright Society of Kenya (MCSK), was not a collective management organisation (CMO) within the meaning of the Copyright Act; that sections 46 and 46A to G of the Copyright Act were in contravention with article 40 of the Constitution as they perpetrate the infringement of intellectual property rights by requiring a rights holder to seek a license before exercising/ exploiting/administering its own rights as well as the contention as to whether section 46A of the Copyright Act violated article 27 of the Constitution to the extent of allowing the respondents to arbitrarily peg the value of music/tariff to a percentage of business permit and by further perpetuating discrimination in violating the right to property by imposing a flat rate tariff on broadcasts of musical works. The issues in the instant petition were different from those in the former case.
3. Decisions by multi-Judge benches were generally considered to be at par with those of a single-judge bench. However, the input of several judges in coming up with a composite decision remained an important consideration. Although the decisions of multi-Judge benches were highly persuasive and presumably jurisprudentially enriched, they were not binding on the single-judge benches of the High Court.
4. The unconstitutionality of a statutory provision could be challenged on several grounds. When a court upheld the constitutionality of a statutory provision, that did not, per se, bar another court of concurrent jurisdiction from considering the unconstitutionality or otherwise of the same statutory provision. As long as the grounds challenging the constitutionality of a statutory provision were different, courts were at liberty to consider such pleas. The doctrine of res judicata was not applicable in the instant matter.
5. Where there was a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. The special procedure provided by any law must be strictly adhered to since there were good reasons for such special procedures.
6. While exceptions to the exhaustion requirement were not clearly delineated, courts had to undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved including the level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applied.
7. The High Court could, in exceptional circumstances, find that the exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. That exception to the exhaustion requirement was particularly likely where a party pleaded issues that verge on constitutional interpretation especially in virgin areas or where an important constitutional value was at stake. It was also essential for the court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it was suitable to determine the issues raised.
8. The jurisdiction of the courts to consider valid grievances from parties who lacked adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which was proportionate to the interests the party wished to advance in a suit must not be ousted. Statutory provisions ousting the courts jurisdiction had to be construed restrictively.
9. Section 48 of the Copyright Act dealt with the establishment and duties of Copyright Tribunal. The objection on the strength of the exhaustion doctrine could not be said to be a serious one. It was apparent that none of the issues raised in the petition could be resolved before the Copyright Tribunal. The objection was dismissed.
10. The position of a deputy executive director in the 1^st respondent was a creation of the law. The person holding the position was a necessary personnel in enabling the 1^st respondent to discharge its duties.
11. It was not mandatory for the 1^st respondent to have annexed a copy of the Boards resolution authorizing the deputy executive director to execute documents on behalf of the 1^st respondent.  The issue of the authority of the deputy executive officer of the 1^st respondent to execute dispositions on behalf of the 1^st respondent was only raised in the petitioners submissions. In such a scenario, the 1^st respondent relied on the law to justify its position. Had the petitioner raised the matter in its disposition, the 1^st respondent would have had an opportunity of responding to the issue and may have availed the authority. As the 1^st respondent opted not to do so and in view of the position of the law, the objection lacked any legal leg to stand on.
12. The Constitution was a sui generis document. It was the ultimate source of law in the land. It commanded superiority and dominance in every aspect and its interpretation as of necessity was to be in a manner that all other laws bowed to.
13. The rules of constitutional interpretation did not favour formalistic or positivistic approaches. The Constitution had incorporated non-legal considerations which had to be taken into account in exercising the High Courts jurisdiction. Courts, while observing the importance of certainty of the law, had to nurture the development of the law in a manner that eschewed formalism, in favour of the purposive approach. Interpreting the Constitution, was a task distinct from interpreting the ordinary law. The Constitution compelled a broad and flexible approach to interpretation.
14. The Constitution should be interpreted in a holistic manner, within its context, and in its spirit. Holistic interpretation meant interpreting the Constitution in context. It was the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution had to be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation did not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.
15. The Constitution should be interpreted in a manner that promoted its purposes, values and principles; advanced rule of law, human rights and fundamental freedoms and permitted development of the law and contributed to good governance. The spirit and tenor of the Constitution had to preside and permeate the process of judicial interpretation and judicial discretion.
16. The Constitution was to be interpreted broadly, liberally and purposively so as to avoid the austerity of tabulated legalism. The Constitution was to be read as an integrated whole with no one particular provision destroying the other but each sustaining the other as to effectuate the great purpose of the instrument (the harmonization principle). Those principles of interpretation of the Constitution also applied to the construction of statutes.
17. There were other important principles which applied to the construction of statues which also applied to the construction of a Constitution such as presumption against absurdity meaning that a court should avoid a construction that produced an absurd result; the presumption against unworkable or impracticable result. This meant that a court should find against a construction which produced unworkable or impracticable result. Presumption against anomalous or illogical result, meant that a court should find against a construction that created an anomaly or otherwise produced an irrational or illogical result and the presumption against artificial result which in turn meant that a court should find against a construction that produced artificial result. Lastly, the principle that the law should serve public interest meant that the court should strive to avoid adopting a construction which was in any way adverse to public interest, economic, social and political or otherwise. The court as an independent arbiter of the Constitution had fidelity to the Constitution and had to be guided by the letter and spirit of the Constitution.
18. A CMO was a licensed organisation which acted on behalf of a copyright rights holders in negotiating, collecting and distributing royalties. A CMO in further dealing with the third parties granted permission for the use of the copyright works or related rights. A CMO took the form of an agent of a known principal. A CMO usually undertook such duties either on behalf of its members or on behalf of any copyright rights holder who was not its member.
19. There was no evidence that the petitioner was a copyright rights holder. What was on record was that the petitioner was acting on behalf of copyright rights holders. As such, the petitioner was an agent and could only be a CMO within the meaning of the Copyright Act.
20. What the petitioner was attempting to engage in was to approbate and reprobate on whether it was a CMO. Such approach was impermissible and held out the petitioner as a vexatious litigant.
21. State regulation of intellectual property rights was provided for in article 40(5) of the Constitution. However, in the course of undertaking the regulation, whether through statutory interventions or by policy decisions, the State had to ensure that it acted within the confines of the Constitution and the law more so as specifically cautioned in article 40(2), (3) and (4) of the Constitution. The petitioner was a CMO and was subject to lawful regulation.
22. Sections 46 and 46A-G of the Copyrights Act were not in contravention of article 40 of the Constitution as they did not provide for any licensing of an intellectual property rights holder before such an owner could exercise/exploit/administer ones own rights. Section 46A of the Copyright Act showed that the law restricted any collection society from otherwise dealing with the imposition or collection of any royalty which was not based on a tariff that had been approved and published in the Gazette by the Cabinet Secretary. Although the provision imposed the duty to gazette the tariff on the Cabinet Secretary, it did not, however, state the manner in which the tariffs would be arrived at.
23. Arbitrariness was a decision or an action that was based on individual discretion, informed by prejudice or preference, rather than reason or facts. Section 46A of the Copyright Act did not provide for the manner in which a Cabinet Secretary could come up with a tariff. The position of a Cabinet Secretary was a creation of the Constitution. A cabinet secretary was a state officer under article 260 of the Constitution. Article 10 of the Constitution called upon state officers, among others, to be bound by the national values and principles of governance in the discharge of their duties. Further article 3 of the Constitution obligated every person to respect, uphold and defend the Constitution.
24. It could not be the case that a cabinet secretary was at liberty to arbitrarily exercise powers as conferred upon by the Constitution or the law. Just like caged animals, cabinet secretaries had to comply with the constitutional and statutory demands while discharging their duties. It was not open for a cabinet secretary to exercise any power whimsically.
25. The apprehension that the cabinet secretary was likely to, albeit, arbitrarily exercise its powers, could not be a basis of a court to determine a matter before it. Courts were called upon to adjudicate upon disputes which were real and had crystallized. The allegations that section 46A of the Copyright Act violated article 27 of the Constitution to the extent of allowing the respondents to arbitrarily peg the value of music/tariff to a percentage of business permit and by further perpetuating discrimination in violating the right to property by imposing a flat rate tariff on broadcasts of musical works were only, but illusionary.
26. For the petitioner to succeed in such a matter, there was need for proof of the arbitrariness and discrimination on the part of the cabinet secretary. The petitioner had not disclosed any single approved tariff by the cabinet secretary as a basis of the allegation. There was no gazette notice of any approved tariff on record.
27. There was no evidence to prove the allegation of arbitrariness on the part of the respondents. The petitioner had, on an equal footing, failed to demonstrate any form of discrimination in imposing an alleged flat rate tariff on broadcasts of musical works. The court was only called upon to decide on an imaginary issue. The petitioner failed to discharge the burden of proof.
28. Proceeding with the matter further would be an act in futility since a party could only be cited for disobeying a court order if the order, in a defined way, related to such a party. In the instant case, the order did not. As the petitioner had the opportunity to amend the order, but opted not to, it could only be fair that the contempt proceedings should be instituted against Music Copyright Authority and not the petitioner. The application was made against a non-party in the proceedings, and hence, it also lacked any legal leg to stand on.

Consent of the IEBC was a prerequisite for effecting a voters transfer of registration.

Brief facts

The petition sought to scrutinize the constitutionality of the statutory requirements in transfer of registration by voters. The 1^st to 5^th petitioners desired to transfer their voter registration from their previous polling stations as registered in the general election of 2017 to other polling stations. The petitioners were, however, turned down by the respective registration clerks and instead, were asked to lodge their applications before the 1^st respondents (Independent Electoral and Boundaries Commission (IEBC)) constituency offices. It was contended that the registration centers were only registering new voters and could not handle voter transfers. The petitioners contended that they were called upon to comply with regulation 13C of the Elections (Voter Registration of Voters) Regulations 2012, (the impugned regulation).

Aggrieved the petitioners filed the instant petition. They contended that the impugned regulation unreasonably disenfranchised them and other eligible voters in the mass registration, hence, unconstitutional.

Issues

1. What  principles should the courts consider when:
   1. interpreting the Constitution;
   2. interpreting statute;
   3. interpreting statute vis--vis statute; and
   4. determining if a limitation on a right or fundamental freedom was justified.
2. Whether the consent of the IEBC was a prerequisite for effecting a voters transfer of registration.
3. Whether regulation 13C of the Elections (Registration of Voters) Regulations, 2012 which called for a voter to make a formal application for transfer of registration was in violation of section 7 of the Elections Act which only called for such a voter to notify the IEBC.
4. Whether regulation 13C of the Elections (Registration of Voters) Regulations, 2012 was in violation of articles 27 and 38 of the Constitution for unreasonably restricting voters right to transfer their votes freely.
5. Whether regulation 13C of the Elections (Registration of Voters) Regulations, 2012 was in violation of articles 10 and 47 of the Constitution for want of public participation and fair administrative procedures.

Relevant provisions of the law

Elections (Registration of Voters) Regulations, 2012

Regulation 13(c)

13C.   Transfer of registration:

A voter is not qualified to transfer his or her registration unless at the date of his or her application to be transferred he or she was ordinarily resident in that constituency six months immediately preceding the date of his or her application for transfer.

Elections Act, No. 24 of 2011

Section 7

7.         Transfer of registration

(1)       Where a voter wishes to transfer the voter's registration to an electoral area other than the one the voter is registered in, the voter shall notify the Commission, in the prescribed manner, of the intention to transfer the registration to the preferred electoral area not less than ninety days preceding an election.

(2)       Upon receipt of the notification referred to in subsection (1), the Commission shall transfer the voter's registration particulars to the register of the preferred constituency not later than sixty days preceding the election.

Constitution of Kenya, 2010

Article 38

38.      Political rights:

(1)       Every citizen is free to make political choices, which includes the right

(a)      to form, or participate in forming, a political party;

(b)      to participate in the activities of, or recruit members for, a political party; or

(c)       to campaign for a political party or cause.

(2)       Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for

(a)      any elective public body or office established under this Constitution; or

(b)      any office of any political party of which the citizen is a member.

(3)       Every adult citizen has the right, without unreasonable restrictions-

(a)      to be registered as a voter;

(b)      to vote by secret ballot in any election or referendum; and

(c)       to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.

Held

1. Articles 20(4) and 259(1) of the Constitution gave guidelines on how the Constitution was to be interpreted. The Constitution should be interpreted in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms and in a manner that contributed to good governance.
2. The Constitution should be interpreted in a holistic manner, within its context, and in its spirit. The approach to interpret the Constitution should be purposive, promoting the dreams and aspirations of the Kenyan people, and yet not in such a manner as to stray from the letter of the Constitution.
3. Courts utilized a three-pronged criteria in determining whether a fundamental right or freedom could be justified.
   1. The objective test established that a limit was reasonable and demonstrably justified in a free and democratic society, the objective, which the measures responsible for a limit on a charter right or freedom were designed to serve, had to be of sufficient importance to warrant overriding a constitutionally protected right or freedom.
   2. The proportionality test where once a sufficiently significant objective was recognized, then the party invoking had to show that the means chosen were reasonable and demonstrably justified. That involved a form of proportionality test. A proportionality test had three important components:
      1. the measures adopted had to be carefully designed to achieve the objective in question. They were not to be arbitrary, unfair or based on irrational considerations. They had to be rationally connected to the objective.
      2. The means, even if rationally connected to the objective in this first sense, should impair as little as possible the right or freedom in question.
      3. There had to be a proportionality between the effects of the measures which were responsible for limiting the Charter right or freedom, and the objective which had been identified as of sufficient importance.
4. Regulation 13C of the Elections (Registration of Voters) Regulations, 2012 ( the impugned regulation), section 7 of the Elections Act and article 38 of  the Constitution made provisions which had a bearing on the transfer of registration by voters. The Constitution, unlike the Elections Act and the impugned regulation, did not make express provisions on the transfer of registration. However, the provisions of the Elections Act and the impugned regulation in a way impacted upon article 38 of the Constitution.
5. On one hand, the Elections Act spoke of the Commission to be notified by a registered voter of the voters intention to transfer the registration. On the other hand, the impugned regulation spoke of making of an application to the Commission for transfer of registration.
6. Application meant to make a formal request or motion. Notify meant to inform (a person or group) in writing or by any method that was understood or to give notice of; to make known. In applying one made a formal request to the IEBC for the IEBCs permission or consent to effect the transfer. It, therefore, meant that if the IEBC declined the application then that was the end of the road for the voter. The consent of the IEBC was a prerequisite for effecting the transfer of registration.
7. A voter was just required to inform the IEBC of the intention to transfer the registration. Once the IEBC received the notification, then it had to make the changes. No permission of the IEBC was required in the case of a party notifying the IEBC.
8. Section 7 of the Elections Act was different from that of the impugned regulation. The application requirement under the impugned regulation overrode the notification called under the Elections Act. The impugned regulation was in conflict with the Elections Act.
9. The Elections Act was a substantive Act of Parliament. It was a parent Act. It made provision for the IEBC to make subsidiary legislation under section 109. The Elections (Registration of Voters) Regulations, 2012 which derived life from the Elections Act, was a subsidiary legislation or delegated legislation. The subsidiary legislation was in contrast with the parent Act. That called for reconciliation by the court.
10. Sections 2, 29 and 31(b) of the Interpretation and General Provisions Act amplified the need for harmony in meanings between the parent Act and a subsidiary legislation. The law abhorred inconsistencies. The only instance where the law allowed any variance was where the parent Act expressly stated that the subsidiary legislation was to provide to the contrary. No subsidiary legislation shall be inconsistent with an Act of Parliament.
11. Before the court decided that a particular instrument or subsidiary legislation was inconsistent with the Act, it had to be satisfied that the two provisions could not stand together. What the court was required to do was to construe the instrument with the necessary alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Act. It was only when the instrument could not, despite such construction, conform to the Act that the court would be entitled to nullify the instrument. If the choice was between two strongly competing interpretations, the advantage could lie with that which produced the fairer and more convenient operation so long as it conformed to the legislative intention.
12. The impugned regulation which called for a voter to make a formal application for transfer of registration could not be read into section 7 of the Elections Act which only called for such a voter to just notify the Commission. The two requirements were worlds apart. The Elections Act made no provision or intention for a contrary meaning of section 7 in the subsidiary legislation. The impugned regulation was irredeemably inconsistent with section 7 of the Elections Act and as such, the impugned regulation had to give way to the parent Act.
13. Whereas the impugned regulation seemed to be aimed at curtailing the commission of some election offences, there was a law in place dealing with all forms of electoral offences and malpractices. The Elections Act and other regulations made thereunder had provisions on when voter registration and transfer was suspended. Further, the Constitution and the Elections Act put a lot of premium on avoiding unreasonable restrictions in voter registration and voting. The objective of the impugned regulation could not relate to concerns which were pressing and substantial in a free and democratic society.
14. The impugned regulation could not be characterized as sufficiently important to limit a right. The impugned regulation could not be proportional to the alleged mischief. The mischief, if any, was already and sufficiently taken care of by other existing laws.
15. The impugned regulation had the effect of constricting the right to register as a voter rather than creating an enabling environment for the greater realization of the right. The impugned regulation did not stand the threshold in article 24 of the Constitution to limit the right of a voter to transfer registration. In essence, the impugned regulation was not reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The impugned regulation infringed on article 38 of the Constitution to the extent that it curtailed a voters right to freely make political choices and to transfer registration. Likewise, the impugned regulation infringed on article 27(1) and (2) of the Constitution to the extent that it did not accord a voter the right to equal protection and benefit of the law. The impugned regulation contravened articles 27(1) and (2) and 38 of the Constitution.
16. The amendments that brought forth the impugned regulation were originated by the IEBC. The amendments were made pursuant to section 109 of the Elections Act. The provision granted power to IEBC to make regulations generally for the better carrying out of the purposes and provisions of the Act. The Elections (Registration of Voters) (Amendment) Regulations, 2017, was, hence, a subsidiary legislation. As such, it had to strictly comply with the Constitution and the Statutory Instruments Act.
17. There was need for all persons, state organs and public bodies to undertake public participation in appropriate cases for their actions or decisions to gain constitutional validity. Whereas an allegation of lack of public participation did not automatically vitiate the process. The allegations had to be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation was to be determined on a case to case basis.
18. The impugned regulation was so germane that it went into root of inter alia the political rights of citizens. As such, it was a matter that called for appropriate engagement especially on the clarity of the subject matter for the public to understand, the medium of engagement ought to have been clear and simple; there ought to be an opportunity for balanced influence from the public in general; the commitment to the process could not be overemphasized; inclusive and effective representation was necessary; the integrity and transparency of the process was to be guaranteed; the capacity to engage on the part of the public was cardinal, including that the public must be first sensitized on the subject matter. The IEBC was under a duty to satisfy the court that the above had been undertaken. That called for evidence. However there was no such evidence tendered. The hollow averments could only amount to hearsay.
19. Given the effect of the impugned regulation on the general public, it was incumbent upon the IEBC to undertake a robust public engagement, a duty which IEBC failed to discharge. The lack of engagement ran contra articles 10 and 47 of the Constitution as well as the Statutory Instruments Act and the Fair Administrative Actions Act for want of public participation and fair administrative procedures.