Playing Devil’s Advocate

BY Dennis Ndiritu

The Supreme Court on March 15, 2019 issued a ruling castigating the conduct of Senior Counsel Ahmednasir Abdullahi. This emanated from his bareknuckle dress down of the bench in ‘Republic v Ahmad Abolfathi Mohammed & another [2019] eKLR’. 

In this case, the respondents were two Iranian nationals who came to Kenya on June 12, 2012 on a tourist/business survey visa. Upon arrival at Jomo Kenyatta International Airport, they took a local flight to Mombasa and checked in at the Royal Castle Hotel where they had been booked for 10 days by the Teheran Golfers Travel Agency. They, however, checked out of that hotel on June 16, 2012 and flew to Nairobi where they stayed at the Laico Regency for three days.

On June 19, 2012, while on their way to the JKIA to catch a return flight back to their country, they were arrested by the Anti-Terrorism Police Unit on allegations of having come to Kenya on a terrorist mission. The respondents pleaded not guilty to all those charges but upon trial, they were convicted as charged and sentenced to life imprisonment on the first count, 10 years imprisonment on the second count and 15 years imprisonment on the third count. The sentences were to run concurrently.

Aggrieved by that conviction and the sentence imposed, the respondents appealed to the High Court on the grounds, inter alia, that their right to a fair trial had been flouted, as the trial Magistrate was not impartial, and their defences ignored, that the trial Magistrate ignored contradictions in the prosecution case, that the trial Magistrate failed to apply the established legal principles in drawing inferences from circumstantial evidence, that far from establishing their guilt, circumstantial evidence on record exonerated them of the offences for which they are charged, that their conviction was unfounded as it was not supported by the evidence on record, and that the sentences imposed upon them were harsh and excessive. 

Upon hearing of the appeal and, as the first appellate court, upon re-evaluation of the evidence on record, Justice Luka Kimaru, upheld the findings of the trial Court on the respondents’ conviction. He, however, allowed their appeal against sentence holding that the respondents, having been charged with what essentially constituted inchoate offences, in that their intentions were nipped in the bud, the sentence of life imprisonment was excessive. Consequently, the Judge set aside that sentence and substituted it with a composite term of fifteen years imprisonment.

The respondents were still aggrieved by the High Court’s findings and moved to the Court of Appeal. They raised 19 grounds of appeal which were condensed into six broad grounds that the High Court: erred by sustaining their conviction on insufficient and contradictory evidence; relied on circumstantial evidence that did not unerringly point to the respondents as the only persons who could have placed the RDX at the golf course; erroneously held that the RDX was an explosive within the meaning of the Explosives Act; incorrectly found that the respondents were in possession of the RDX explosive; failed to hold that the respondents were denied a fair trial as guaranteed by Article 50 of the Constitution and the Criminal Procedure Code; and therefore wrongly imposed upon the respondents an illegal and manifestly harsh and excessive sentence.

After hearing, the Court of Appeal allowed their appeal, quashed their conviction and set aside the sentence. The State swiftly appealed. After lodging the notice of appeal, the State filed before the Court of Appeal an application, under Article 163(4)(b) of the Constitution, for certification that its intended appeal involved matters of general public importance. Upon hearing, the Court of Appeal dismissed that application prompting the State to seek a review before the Supreme Court under Article 163(5) where leave was granted and a substantive appeal filed. 

On this appeal, the Court allowed the appeal setting aside judgment and orders of the Court of Appeal and affirmed the conviction by the trial court and High Court; consequently, the respondents were ordered to serve the remainder of their imprisonment term after which they would be repatriated to their country.

While delivering the ruling addressing  “his unbecoming behaviour”, the Supreme Court issued a stern warning to Senior Counsel Ahmednasir Abdullahi following his “disparaging remarks” on how the Supreme Court had handled the case against the Iranians. Justice Jackton Ojwang stated that Abdullahi, SC, ought to have argued his clients’ case without casting aspersions. The lawyer had used very strong words accusing the court of behaving like a “headless chicken” and “lacking impartiality” in the case. He stated that the court exercised illegitimate political power over the Iranians, who had been acquitted by the Court of Appeal, and that there was a “moral and ethical dilemma” whenever he appeared before them. 

Justice Ojwang noted that wilful insults directed at a judge during trial are prohibited. The judge further noted that Abdullahi conducted himself in a disgraceful manner and was disrespectful to the authority of the court.  The Court observed that advocates are obliged to observe rules of their professionalism and as officers of the court, and that Abdullahi owes allegiance to the course of justice and truth. As a result, the Supreme Court expunged the offending paragraphs and said they would not remain as part of its records. The Court cautioned advocates against engaging in such conduct and that, in future, they would occasion contempt of court proceedings with ineligible consequences.

The Court underscored counsel’s duty as senior counsel, a duty to the court and duty to the profession, which calls for civility while in court. Concern is therefore raised as to where aggrieved advocates should vent their anger when outraged by the conduct of judicial officers. Does the disparaging of a bench while in court really violate the advocate’s obligation to observe rules of professionalism? What then amounts to severe criticism of judicial decisions and judicial decorum? The lack of a coherent guidance to what is appropriate and inappropriate, bordering on civility in court, does not help this case. This is further clouded by the invocation of counsel’s rank as Senior Counsel. That counsel is Senior Counsel does not absolve him from fits of rage and anger at the conduct of the court and there is no better way of handling it than venting it out on the floor of the court.

An Advocate has a duty to, as far as possible and within the bounds of the law, zealously and courageously, defend the interests of the client. This can only be done by providing competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for such representation. The duty of an advocate has been said to be to “promote and protect fearlessly and by all proper and lawful means the best interests” of the client without regard to the advocate’s self-interest or to any personal consequence.This zealous representation is what counsel engages in by laying bare his clients concern over the conduct of the matter. That the court sought to take it up personally with counsel amounting it to contempt instead of addressing his concerns is a subject that will baffle everyone.

Section 55 of the Advocates Act mandates that every person who is entitled to act as an advocate to be an officer of the court. As a result of this, the advocate owes a paramount duty to the court, a duty slightly above that owed to the client (arguable in my opinion). The advocate is expected to conduct himself in a manner befitting the status of an officer of the court. The advocate is supposed to be courteous towards the court, other advocates, witnesses, and parties to the suit.  As an officer of the court, one is also expected to assist the court to arrive at a fair and just decision. It is in this duty that the advocate is mandated to truthfully inform court of his honest opinion about the conduct of trial. The truth is commonly understood to be a bitter pill. It is thus the court’s duty to bear being told the truth without reprimanding counsel unless the language used is so harsh that it personally attacks the character of judges. Without the acceptance of speaking bare truth to power, the ends of justice may not be achieved as clearly evident in this ruling and the judgment.

It is an agreed principle that advocates and the public expect judges to maintain control of courtroom proceedings. When judges do have to take a more active role in the proceedings to ensure control of the process, it is important that they not appear to have adopted a position on the facts, issue or credibility. They thus should not term a litigant as contemptuous simply by the fact of casting aspersions on the credibility of the court. Theirs is to act impartially and be seen to take a neutral view and welcome criticism of whatever sorts with decorum.

“A lawyer is an intimate part of the legal system, who plays a vital role in ensuring the accountability and transparency of the judiciary. To play that role effectively, he must be free to act and speak without inhibition and with courage when the circumstances demand it”

W.A. Amoko in ‘Make Nice-Judicial Policing of Lawyers Criticism of Judgments and Judges’notes that there are huge concerns against the unanimous Supreme Court ruling in ‘R v Ahmad Abolfathi Mohamed & Another’. That a court that routinely produces sprawling judgments, copiously replicating the evidence and submissions, presented a short decision is something to be welcomed but with respect, the analysis they undertook was wanting and needs revisiting. It is therefore my concurring opinion with the caution stated in ‘Margaret Ogweno Okoth v Gabriel Onyango Wade & Another(unreported)HCCC No. 44/2003’, that with the jurisdiction of contempt now practically arbitrary and unlimited, it should be jealously and carefully invoked and exercised to avoid overzealousness of litigants thus abuse of the court process, even by the bench.

Finally, this ruling highlights the centrality of Article 33 on freedom of expression in light of contempt proceedings. It is time we adopted the rationale in ‘Craig v Harney’ where Judge Murphy, in his concurring opinion, noted, “…judges are supposed to be men of fortitude, able to thrive in a hardy climate, with silence and steady devotion to duty as the best answers to irresponsible criticisms.” Further comment on what a judge has done-criticism of the judicial process in a particular case after it has exhausted itself – no matter how ill-informed or irresponsible or irresponsible or misrepresentative – is part of the precious right of the free play of opinion. Whatever violence there may be in truth such utterances must be left to the correction of truth.

Justice Abella in ‘Dore v Borreau du Quebec, 2012 SCC 12(2012) 1 S.C.R, 395’, notes that a lawyer is an intimate part of the legal system, who plays a vital role in ensuring the accountability and transparency of the judiciary. To play that role effectively, he must be free to act and speak without inhibition and with courage when the circumstances demand it. It is on this basis that Amoko notes that discourtesy and rudeness cannot be a basis for talking disciplinary and given their role, lawyers may enjoy greater freedom to criticise judges even in discordant terms.

The Supreme Court should foster free speech and take criticism from litigants in stride with litigants exercising caution not to antagonise the courts to the detriment of their clients. (