On November 3, 2016, Justice S.J Chitembwe passed a judgement that has sent the collective management organisations and their members into a state of panic regarding the payment of royalties from the Skiza tune by Safaricom. The Malindi Court declared section 30A of the Copyright Act Cap 130 of the Laws of Kenya unconstitutional on the grounds that there was no public participation prior to it being passed under the Statutes (Miscellaneous Amendments)Act and was applied retrospectively. The court also declared the agreement between Safaricom and the collective management organisations irregular and unlawful.  The issue had somewhat been raised and decided in  the Constitutional Petition No317 of 2015. The court, in relation to section 30A held;

1. Section 30A of the Copyright Act does not violate the petitioners’’ freedom of association. This is in light of the fact that there is no requirement for any artist to become a member of a CMO in order to receive remuneration for the use of copyrighted works.
2. Section 30A of the Copyright Act does not violate the intellectual property rights of petitioners. Its only requirement is that there should be collective management organizations which collect royalties for use of copyrighted works and distribute such royalties to the copyright holders;

• No violation of article 47 of the Constitution has been demonstrated. However, KECOBO has the statutory duty to ensure that collective management organizations account to members and non-members whose royalties they collect, and remit such royalties to the rights holders.

  However, Chitembwe in Mld Constitutional Petition No 5 of 2016, acknowledging the ruling by Justice Mumbi Ngungi held that by virtue of the fact that Section 30A requires that equitable remuneration shall be paid through the collective management organisation and that there was no proof of public participation in the amendment, the section, to the extent that it limits the rights of the artists to choose, is unconstitutional. It is important to note that the court took into account that the parliamentary committee report was not presented in court. (Maybe if it was produced it would have made a difference as to the issue of public participation as it went through all the relevant readings).

With two conflicting judgements on the same issue, the CMOs have two main options, either to        appeal the second decision or to have the section amended to give the option to collect through        the CMO or individually by having an amendment to Section 30A changing word  “shall” to              “may. “