In a judgment delivered on 29th July 2023 by Justice Chacha Mwita of the Milimani High Court’s Human Rights Division, Legal Notice No. 84 of 2023, gazetted by the Cabinet Secretary for Youth Affairs, Arts and Sports, was annulled. The notice, published on 29th January 2023, introduced consolidated music tariffs under Section 46(A) of the Copyright Act, ostensibly to support stakeholders in the creative economy.
The directive required all hospitals, both public and private, to pay annual fees determined by their classification. Level 1 and 2 facilities were expected to pay Kshs. 50,000 annually; Level 3 hospitals, Kshs. 80,000; Level 4 facilities, Kshs. 200,000; Level 5 hospitals, Kshs. 500,000; Level 6 institutions, a staggering Kshs. 1,000,000; and clinics, Kshs. 25,000.
Following the gazettment of the directive, hospitals across the country began receiving invoices from individuals claiming to represent the Kenya Association of Music Producers (KAMP) and the Music Copyright Society of Kenya (MCSK). Some facilities reported incidents of harassment and intimidation by these individuals, who demanded payment in accordance with the new legal notice.
In response, Kahura Mundia filed a petition on February 12, 2024, on behalf of a coalition of affected hospitals. The petition challenged the legality of the directive, citing a lack of public participation, a constitutional requirement for any policy or legal change that affects the public. The petitioner also argued that the tariffs could undermine healthcare service delivery by diverting the time and resources of medical personnel towards navigating complex copyright compliance procedures.
Justice Chacha Mwita concurred with the petitioner’s arguments, ruling that the legal notice had failed to meet the required threshold for public engagement. “A declaration is hereby issued that there was no reasonable, meaningful, and effective public participation on the imposition of the tariffs,” he stated.
The judge further declared that Legal Notice No. 84 of 2023 contravened the Statutory Instruments Act, rendering it null and void. “A declaration is hereby issued that Legal Notice No. 84 of 2023 is unconstitutional, null and void for failing to comply with the Statutory Instruments Act,” he added.
This ruling sets an important precedent regarding the role of public participation in policymaking, particularly when cases involving the rights of citizens and the delivery of essential services are at stake. Legal experts note that the decision is likely to influence the approach taken by ministries and regulatory bodies when introducing similar instruments in the future.
For hospitals, the ruling offers welcome relief from what many viewed as an unjustified financial burden. Healthcare providers can now concentrate fully on their core mandate of delivering medical services, without the looming threat of arbitrary copyright fees linked to television sets installed for patient comfort.
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