‘Dignity of the court’ vs. freedom of expression

Kenya’s two types of contempt – sub judice and scandalisation – need to be abolished for the simple reason that their limitation on constitutional freedoms, however narrow, is unjustified

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By Newton Arori and Caroline Cheptoo

Contempt of court manifests in various forms. These range from wilful disobedience of court orders to witness tampering, disruption of court proceedings, and so forth. Generally, contempt of court is behaviour that interferes with, or defies the authority of, a court of law. The doctrine of contempt of court has its roots in English Common Law. In Kenya, the law on contempt is to be found primarily in the Contempt of Court Act, 2016.

Of the several types of contempt law, two – the sub judice rule and the rule against ‘scandalising the court’ – limit the freedom of expression and the freedom of the media – freedoms that are granted by Articles 33 and 34 of the Constitution respectively.

It is acknowledged that fundamental rights and freedoms (except those in Article 25) are not absolute and may be limited. However, Article 24 (1) (b) of the Constitution provides that “a right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom taking into account all relevant factors, including…the importance and purpose of the limitation.”

The import of that provision is that a right or fundamental freedom may only be limited if that limitation achieves an objective.

This piece sets out to demonstrate that that the two types of contempt law mentioned above are outdated and do not achieve any definitive purpose, and are therefore unjustified in an open and democratic society.

The sub judice rule

Sub Judice, which is Latin for “under judicial consideration” or “under a judge” is a rule that governs which public statements can/ cannot be made about a case that is before a court for determination. The general rule is that on matters before court, public discourse is prohibited. Violation of the rule amounts to contempt of court, which is a criminal act and therefore punishable.

The philosophy behind the sub judice rule was perhaps best expressed by Lord Denning in the case of AG vs. Times Newspaper (1973) 1 QB 70, where the learned judge stated, “It is undoubted law that, when litigation is pending and actively in suit before the court, no one shall comment on it in such a way that there is a real and substantial danger of prejudice to the trial of the action, as for instance by influencing the judge, the jurors, or the witnesses or even by prejudicing making in general against a party to the case…we must not allow trial by newspaper or trial by television or trial by any medium other than the courts of law.”

In Kenya, this rule is buttressed in legislation, specifically Section 27 (f) of the Contempt of Court Act, which provides, “A person who, while a judicial proceeding is pending, makes use of any speech or writing misrepresenting such proceeding or capable of prejudicing any person in favour of or against any party to such proceeding or calculated to lower the authority taken, commits an offence.”

There is no clear definition of what statement is “capable of prejudicing” and so amounting to sub judice that determination is left to courts to make on a case-to-case basis. The sub judice rule is criticised mainly on grounds that, judges and magistrates are professionally trained and thus less susceptible to being influenced by prejudicial statements made on whatever forum. Therefore, the sub judice rule may be useful only in jurisdictions where cases are tried by juries (who constitute lay persons with no professional legal training).

In Kenya, cases are tried only by judges and magistrates, which renders the sub judice rule an unjustified limitation on the constitutional freedom of   expression. In the words of Senior Counsel Paul Muite, “in our courts, issues of fact in a trial are determined by professionally trained judges and magistrates. We would expect these professionals to be capable of ignoring media comments and agitations.”

In the Nigerian case of Akinrisola vs. Attorney General of Anambra State (1980) 2NCR17, a newspaper published an article commenting directly on the law regarding an on-going election petition. The Supreme Court held that this did not constitute contempt, as the trial court was presided over by a professional judge who was not capable of influence.

Scandalising the court

Also present in our contempt law is the offence of “scandalising the court”. In this regard, Section 4 of the Contempt of Court Act defines the offence of contempt of court to include “conduct or the doing of an act which scandalises or tends to scandalise, or lowers or tends to lower the judicial authority or dignity of the court.”

There is no conclusive definition of “scandalising” but chiefly, it takes the form of “scurrilous abuse” of a court or judge, insinuating bias against a court or judge or insinuating that a judge or court has been influenced by external pressures.

The rationale for this rule was explained in the case of R vs. Almon (1765) 97 ER.  In that case, the court held, “Criticism of judges excites in the minds of people a general dissatisfaction with all judicial determinations and indisposes their minds to obey them; and whenever men’s allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and, in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever.”

The question arises, is this law justifiable, especially in a state where freedoms of speech and expression are guaranteed?

Criticisms of this rule abound. First, if parliament and other public institutions can be criticised, why not the courts? One commentator has noted, “Public institutions in a free society must stand upon their merits; they cannot be propped up if their conduct does not command the respect and confidence of the community; if their conduct justifies the respect and confidence of a community they do not need the protection of special rules to protect them from criticism.”

Jill Cottrell Ghai (2016) in “Contempt of Court and Freedom of Speech Explained” concurs: “preventing criticism contributes to the public perception that judges are engaged in a cover up and that there must be something to hide.”

The second criticism of the “scandalising” rule is that it is unnecessary as there are other remedies available to those aggrieved. In case statements made about a judge are untrue and scandalous, that judge could use defamation laws to remedy any damage to his personal reputation.

Interestingly, the offence of scandalising the court has been abolished in England, its country of origin.

Conclusion

The Contempt of Court Act 2016 establishes certain defences in proceedings for contempt of court. These include fair comment made in good faith, accurate reporting of judicial proceedings, innocent publication or distribution (of contemptuous matter), and remarks made in an administrative capacity by an authority in the course of official business. Still, the two types of contempt discussed here need to be abolished for the simple reason that their limitation on constitutional freedoms, however narrow, is unjustified. ^

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