Courts are not so sacrosanct as to be above criticism
BY Kabakua Mbogori
While delivering the BBI judgment on March 31, 2022, the Chief Justice (CJ) and the president of the Supreme Court, Martha Koome, made a surprising remark that caught everybody unawares. The statement admonished three outspoken lawyers for what the CJ termed the” use of social media to disparage the court to lower the dignity and authority of the court or influence the outcome of a case pending before the court.” According to the CJ, “for counsel to appear before the apex court then proceed to hurl unnecessary diatribe, insults, and speculations on a pending judgment amounts to unethical conduct on the advocate concerned.”
The tweets that appear to have triggered the court were authored on various dates by the immediate former president of the Law Society of Kenya, Nelson Havi, Senior Counsel Ahmednasir Abdullahi, and fast-rising junior advocate Esther Ang’awa. On February 15, 2022, Mr. Abdullahi tweeted: “BREAKING NEWS…. I hear a major meeting is happening in a foreign country where the players sitting at the table have one agenda: HOW TO SHARE THE EXPANDED EXECUTIVE IN LINE WITH THE JUDGMENT OF THE SUPREME COURT ON THE BBI CASE!” The same day, Nelson Havi retweeted Abdullahi›s tweet with a quote: «If this be true, it will be confirmation that the Supreme Court has failed in its role to determine matters before it without interference from the executive. It will be a big indictment against Chief Justice Martha Koome and a vindication that we were all along right about her.»
Ms. Ang’awa followed with her tweet on February 19, 2022: “The court [referring to a South African court] heard an expert in language and song, a professor of African literature, for 5 hours less 2 minutes in the hate speech case against Malema. The supreme court of Kenya had NO time to listen to amici professors of law and authors on constitutional law in the BBI case.”
Reacting to the CJ’s swipe at the three advocates some days later, the editorial team at the Platform Magazine vigorously defended the lawyers› freedom of expression and called for «uninhibited, robust, and wide-open» debates about our courts. They encouraged the court to embrace and nurture a rights-based attitude in its views about how the public and the bar should relate to it. I largely agree with this view.
A human rights approach would mean that the court must always show fidelity to the near free speech absolutism that Article 33 of the constitution champions. The provision appears to rule out only four categories of speech: (a) propaganda for war, (b) incitement to violence, (c) hate speech, and (d) advocacy for hatred. Article 33 is correctly demarcated with no doubts as to its scope and intent: it is all-embracing instead of being restrictive.
Article 33 and Codes of Conduct for Advocates
While admonishing the three lawyers, the CJ cited section 60(1) of the Advocates Act, cap 16, which defines professional misconduct as: “includes disgraceful or dishonorable conduct incompatible with the status of an advocate.” The CJ further cited section 17 of the same Act that provides the criteria for awarding the rank and dignity of senior counsel. The rank is conferred based on irreproachable professional conduct and exemplary service to Kenya’s legal and public service.
The CJ also cited the code of standards of professional practice and Ethical conduct [ Code of Conduct and Ethics for Advocates] that regulates ethical standards in the legal profession. To be specific, the code discourages the use of social media in a manner that demeans the profession. Hence, rule 10 of the code provides that:
“Inappropriate use of social media, particularly in a manner that undermines the standing and dignity of the legal profession, is professional misconduct. Material and content drawn from social media sites may be taken into account by regulatory authorities in dealing with a charge of professional misconduct.” The question is whether these rules of conduct could be a legitimate limitation to protected speech/expression under Article 33 of the constitution.
The Bill of Rights applies to all citizens, including lawyers. Article 24 of the constitution has laid down the criteria upon which rights may be limited: only by law and that the limitation is reasonable and justifiable in an open and democratic society. A statute, code, or regulation purporting to restrict free speech must meet the conditions imposed under Article 24.
Article 33 guarantees every person the right to freedom of expression, including “freedom to seek, receive or impart information or ideas.” However, the constitution does not protect those who abuse their speech rights to incite violence, advocate for war, and/or preach hatred. The 2010 constitution appears deliberate in embracing a near absolutist stance in asserting freedom of expression. Aside from the four limits expressed under article 33, the constitution encourages free expression to its greatest extent.
This becomes clear after reading section 79(2) of the 1963 constitution (now repealed), which protected freedom of expression. Section 79(2) was explicit that freedom of expression could be limited to maintain the authority and independence of the courts:
79(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –
(b) that is reasonably required to protect the reputations, rights, and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence and maintaining the courts’ authority and independence.
The drafters of the Constitution did not find it worthy of denying express constitutional protection to speech that would be perceived to demean the authority and independence of the judiciary. Unlike the 1963 constitution, which expressly limits such expression, freedom of expression under the 2010 constitution may be limited to protect the dignity of courts only under the statute and in conformity with article 24 of the constitution. This snub by the drafters must have been informed by the history of the oppressive and unjust application of contempt laws by a captured judiciary.
The pre-2010 judiciary was plagued with corruption, rot, opaqueness, and a lack of effective accountability mechanisms. Few Kenyans, if at all, took its decisions and pronouncements, especially where the executive had an interest, with any bit of seriousness. Confidence levels were at an all-time low. The drafters of the new constitution must have thought it unwise to place an express constitutional limitation to free expression in pursuit of an abstraction of dignity, authority, and independence of the courts. In any case, such limitation was frequently abused by the same courts under the old constitution. Parliament was left to protect the dignity of courts through statute law. But then, statutory provisions to that effect must always remain within the four corners of Article 24 of the constitution.
A proportionality inquiry is typically conducted to determine whether a statutory provision limiting a constitutional right or freedom is within the framework provided under Article 24. The test is generally an exercise in balancing competing rights. For example, every person has a right to protection of reputation. In defamation, a court may be forced to sacrifice freedom of expression to assert the right to reputation.
There is no doubt that the right to freedom of expression may be limited under Article 24 to guarantee the effective functioning of the Courts and the fair administration of justice. The laws of contempt and the sub judice rule are put in place to achieve this aim. The statutes and codes regulating the profession of law seek to, inter alia, perform a similar objective. The Sub judice ruleprohibits public commentary or discussion on the merits of matters in the courts’ domain for judicial determination. The rule aims to shield the court against external influences in determining the matter before it. It has been argued that the idea that professionally trained Judges and Magistrates would easily be swayed by what is said about court cases in the newspapers or on social media is absurd.
The kind of contempt predominant in Kenya and which the Supreme Court seemed concerned about scandalizes the court. These are comments that seem to lower the judicial authority or dignity of the court. The comments by the three advocates and other withering remarks occasionally made by Mr. Abdullahi against the Supreme Court may fall under this category. Still, some hold the view that in a proper democracy, there is no room for restrictive rules. For instance, Professor Jill Cottrell Ghai has argued that the judiciary should not peg their respect from the people “on wigs and gowns and ceremony, but on unimpeachable integrity, impeccable behavior, and superb competence.”
As I see it, the challenge is to strike a delicate balance between freedom of expression against the need to ring-fence courts from the most extreme forms of attack. In my view, freedom of expression must never be limited to exclude public debate or expression in matters of public concern, such as integrity and accountability of the judicial arm. The Kenyan Judiciary should encourage active public scrutiny of its affairs. It should welcome and embrace public criticism of its judgments and even how judges conduct their affairs during the hearing of cases. Only the most extreme, subjective, unrestrained, and malicious attacks should be admonished.
I have carefully scrutinized the tweets by the three outspoken advocates, and I saw nothing in them that would trigger the highest court in the land. If anything, most of the tweets are the usual rhetorical hyperbole that Mr. Abdullahi has habitually trained on that court. In all matters of public affairs, the reference point should always be the dicta in New York Times v Sullivan where «actual malice» must be proved for a claim for libel by a public official to pass. The US supreme court rightly stated that «debate on public issues should be uninhibited, robust, and wide-open. It may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.»
We must all cherish the freedom of expression because it is the guarantor of democracy. It also facilitates the search for truth. We must never return Kenya to the dark past where courts were openly hostile and oppressive to journalists who dared to question their integrity. Judges enjoy substantial discretionary power, and if left to their own devices, it won’t be long before they adopt the posture of the bench in R v Tonny Gachoka (Criminal Application No 4 of 1999), which was more intent on instilling fear in journalists than encourage truthful reporting. Tony was jailed for reporting possible bribery of the then CJ Zeccheus Chesoni in a case concerning ownership of Kenya Duty-Free Shops. A similar attitude was visible in the earlier case of R v David Makali & 3 others (Criminal Application No. NAI 4 & 5 OF 1994 (Consolidated), where David was jailed for suggesting that the Moi-era courts lacked independence and were more inclined to please the executive.
Nowadays, even courts as superior as the Supreme Court would find spare time to scan the blogosphere to fish out general and abstract criticism of their daily affairs. A few years back, this would have been unimaginable when such forums would be viewed as the arena for mainly less-serious people. (