The caution by Chief Justice Martha Koome during the BBI judgment against the use of social media by Advocates appearing before the Supreme Court was, after all, not an idle threat. On May 05, 2022, the CJ followed through her warning with new rules ostensibly made to eliminate or minimize what the court views as unethical behavior. Through Legal Notice No.79 of 2022, the CJ amended rule 18 of the Supreme Court (Presidential Election Petition) Rules, 2017 by inserting sub-rules 4 and 5. Sub-rule 4 seeks to codify the common law rule of Sub judice.
In plain English sub judice roughly means “still under judicial consideration.” It is an archaic rule that emerged in medieval England to shield juries from extra-judicial comments that were likely to sway their verdict. The rule demands that any conduct that unjustifiably interferes with matters that are in court for judicial determination is punishable as criminal contempt. It prohibits public commentary or discussion on the merits of such matters.
The newly introduced sub-rule 4 bars litigants and their advocates from expressing their opinion on merit or demerit of the petition once hearing has started. Sub-rule 4 also bans predicting the outcome of the petition until judgment is delivered. Sub-rule 5 declares that a breach of the rule shall amount to contempt of court. The amendment has cause an uproar among a section of Advocates, and this saw the President of the Law Society schedule an urgent meeting with the CJ to deliberate on the matter.
Many people have questioned the place of sub judice rule within a transformative constitution such as the one we have. In fact, the new rules have already been challenged in the constitutional court. In a petition filed in the High Court, Lawyer Omwanza Ombati argues that the rules are unconstitutional, vague, unreasonable, irrational and unlawful.
But the CJ also appears determined to rein in what she sees as an unacceptable trend of disparaging courts on social media while cases are ongoing. Those presumably targeted by the rules appear to hold strong views on freedom of expression, conscience, belief and opinion and appear unlikely to yield either. So, we anticipate a grueling battle between the CJ and her perceived targets.
But what is the constitutional validity of the impugned rules as a matter of law? Do the petitioners have a strong case? The Chief Justice emeritus, Willy Mutunga, has expressed the view that the common law doctrine of Sub Judice may not be aligned with the 2010 constitution. He is particularly concerned that the doctrine violates articles 1, 10, 20(3)(b) (c), 159(1) and 259(1).
The clearest pointer to the manner in which the High Court is likely to rule is the South African case of Midi Television (Pty) Ltd v Director of Public Prosecutions  SCA 56 (RSA), where the Supreme Court of Appeal of South Africa set the standard of “demonstrable and substantial prejudice.” The court states:
…a publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage.
Meanwhile, Lawyers have condemned Koome over the gag rules, terming it drastic, unjustifiable and ambiguous”, promising to sue the CJ if she fails to rescind her decision “to criminalise comments”.
“The amendment, though intended to protect integrity of the proceedings before the Supreme Court, is something that cannot be supported in a democratic society that cherishes the constitutional rights and freedom of expression,” LSK president Eric Theuri said.
The extent to which freedom of expression may be curtailed in favour of preserving the integrity of the administration of justice was in issue in that case. The Kenyan High Court will be called to determine the extent to which freedom of expression may be limited by statutory or regulatory provisions such as the ones the Chief Justice has introduced.
While the CJ is pursuing a legitimate interest of securing judicial independence from external pressures, there is the opposite view that judges are highly trained, skilled and knowledgeable, and are therefore less susceptible to public pressure, such as the one from a Twitter mob. (