The chief Justice, through Legal Notice No 79 of April 12, 2022, has barred the expression of opinion by litigants, advocates and their agents on conduct, proceedings and Judgments of the Court in presidential election petitions
By Nelson Havi
Through Legal Notice No 79 of April 12, 2022, and published on May 5, 2022, Chief Justice Martha Koome amended Rule 18 of The Supreme Court (Presidential Election Petition) Rules, 2017. The amendment bars the expression of opinion by litigants, their advocates and advocates’ agents on the merit, demerit or prediction of the outcome of a petition challenging the election of the President of the Republic of Kenya.
In reaction to an uproar by Advocates, the Chief Justice claimed that the Court did not consult Advocates about the amendment because they are not represented in the Supreme Court Technical Rules Committee. The Chief Justice stated that the concern by Advocates would be discussed at a Bar-Bench meeting on June 2, 2022.
The retrogressive, manifestly unlawful and unconstitutional action by the Chief Justice must be examined. The error and/or mischief on the part of the Chief Justice must be contextualised, highlighted and deprecated. This is important as there is an apparent deliberate resolve by the Chief Justice to whittle down gains made towards attaining an independent but accountable judiciary for several reasons.
First, it is deceitful of the Chief Justice to claim that Advocates are not represented in the Supreme Court Technical Rules Committee. At the request of the office of the Chief Justice made on March 19, 2021, the Law Society of Kenya appointed Mr Ahmednasir Abdullahi SC and Ms Julie Soweto to the Committee. The office she holds cannot permit Chief Justice Martha Koome to lie. It is gross misconduct.
Second, contempt of Court before the Supreme Court is an offence created by Parliament in terms of Section 28 of the Supreme Court Act. The Chief Justice does not have the power to make laws: legislation or subsidiary.
Further, subsidiary legislation cannot prescribe penal offences of otherwise lawful actions under the Bill of Rights. This is elementary law.
Freedom of expression is guaranteed under Article 33 of The Constitution of Kenya. The common law extinct relic of sub-/oc/ice evident in the amendment has no place in Kenya’s jurisprudence. A reading of Articles 1, 10, 20(3) (b) and (c), 159(1) and 259 of The Constitution of Kenya are sufficient for that purpose. For these reasons, Legal Notice No 79 of 2022, dated April 12, 2022, is null and void ab Initio.
Third, the action by the Chief Justice is indicative of her intemperate character, a vice inconsistent with the holder of such high office. It is a vice inherent in the person of Chief Justice Martha Koome. It first manifested on April 30, 2021, when she threatened to sue the President of the Law Society of Kenya for submitting a memorandum to the Judicial Service Commission on her unsuitability for appointment as Chief Justice. A stern rebuttal on May 3, 2021, suppressed her intended or ill-advised action.
Fourth, the action by the Chief Justice is taken in pursuit of her assault against three Advocates: Mr Ahmednasir Abdullahi SC, Mr Nelson Navi and Ms Esther Ang’awa, in her Judgment on the BBI appeal delivered on March 31, 2022. Whereas Section 28 of the Supreme Court Act is exhaustive of what amounts to contempt of Court, the Chief Justice sought, through judicial craft, to expand the frontiers of the offence. The obvious intention was to abuse the office of Judge of the Supreme Court to curtail the freedom of expression of the three Advocates. Again, this is gross misconduct.
It is essential to locate and beacon the parameters of contempt of Court and the doctrine of sub-judice sought to be codified in the amendment by the Chief Justice. The premise is that contempt of Court before the Supreme Court, or any Court for that matter, must be legislated by Parliament. Judges have no business interacting with the media or any public commentary of conduct, proceedings and Judgments of the Court.
Contempt is defined in Black’s Law Dictionary thus:
1. The Act or state of despising; the condition of being despised. 2. Conduct that defies the authority or dignity of a court or legislature, because such conduct interferes with the administration of justice, it is punishable, usu. by fine or imprisonment.
The Contempt of Court Act was the legislative framework for contempt of Court in Kenya after the promulgation of The Constitution of Kenya. Section 10 of the Act introduced the “strict liability rule” to punish one for contempt irrespective of whether or not there was the intention to do so. Section 19 of the Act criminalised recording proceedings in court without leave of court. Section 15 of the Act sanctioned fair criticism of judicial actions in these terms:
A person is not guilty of contempt of court for publishing any fair comment on the merits of any case, which has been heard and determined.
The entire Act was declared unconstitutional in a Judgment delivered by the High Court on November 9, 2018. The Court found that Sections 10 and 19 of the Act limited rights under the Bill of Rights and that the entire Act was unlawful for want of public participation. The amendment by the Chief Justice is also unlawful, unconstitutional, and null and void ab Initio for want of public participation and for seeking to curtail fair and necessary public evaluation of conduct, proceedings and Judgments of the Court on an important matter of the petition for election of President of the Republic of Kenya.
The Chief Justice must be referred to several texts and decisions for her ease of comprehension of this matter to revoke the Legal Notice and forebears from similar misconduct in the future. First is the caution by John Locke in Two Treatises of Government:
As usurpation is the exercise of power which another hath a right to, so tyranny is the exercise of power beyond right, which nobody can have a right to; and this is making use of the power anyone has in his hands, not for the good of those who are under it, but for his own private, separate advantage.
The Chief Justice should desist from using her tyrannical abuse of administrative and judicial powers for her own advantage.
Second, the Chief Justice must heed the admonition against interference with liberties as propounded by Charles de Secondat, Baron de Montesquieu in The Spirit of Laws in the following words:
In democracies, the people seem to act as they please, but political liberty does not consist of unlimited freedom. In governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will and is not being constrained to do what we ought not to will.
Third is the counsel on self-restraint upon Judges in matters in which they are interested, underscored by B O Nwabueze in Constitutionalism in the Emergent States in these words:
Whilst, admittedly, judges may not be entirely devoid of self-interest in the subject matter of a legislative act — for no human procedure is ever wholly neutral – yet this impartiality serves at once as a safeguard against the possible danger or arbitrariness on the part of the judges in the discharge of their interpretative function. It is reinforced for this purpose by the doctrine of precedent and the tradition of self-restraint.
Writing about Judges and the Media, Sir Daryl Dawson advised as follows:
There is a substantial reason why, to my mind, judges do not allow themselves to be interviewed. The function of a judge is to judge cases. That he does in open Court, and when he makes his decisions, he publicly gives his reasons for them. Everything is there for public scrutiny, and there is no real point to be served by any further explication.
The Chief Justice and Judges in Kenya must heed the following advice of Lord Denning in R v Commissioner of Police, Ex Parte Blackburn (No 2)  2 Q B 150:
Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it.
For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all done in a court of justice. They can say that we are mistaken and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.
The conclusion by The Master of The Rolls — Lord Dyson in his article, Criticising Judges: Fair Garner or Off-Limited, is befitting to end the list of reference materials for the Chief Justice. Apt is the statement that:
81. In my opinion, it is time for judges (if they have not already done so) to accept these changes brought about by shiNs in our culture, our constitution, and our technology. In my view, judges’ reasoned decisions should be open to public debate and scrutiny. Our courts are open and free, and the media perform a valuable job in our democracy of reporting the courts and the Justice System to the broader public. I hope that the debate should be reasoned and based on the evidence. And what is not fair or reasonable is to impugn the motives of judges or ascribe them to prejudices.
82. Judges must expect criticism and, where appropriate, they must offer a robust response. This response should take the form of a well-organised, measured, institutional reply.
I am mindful of the profiling I will receive from the Chief Justice and a few Judges. Like Sebastian Rudd, whose experience is chronicled in ‘Part One: Contempt in The Rogue Lawyer’ by John Grisham, I am okay. Just as F Lee Bailey first found himself isolated for taking similar action but vindicated by history as documents in ‘Chapter VI: When the Defender Stands Accused in The Defense Never Rests’, I will not rest. It must be done.
Chief Justice Martha Koome, you cannot have Chief Justice Hancox for a mentor. Not today or ever. Revoke Legal Notice No 79 of April 12, 2022. (