Supreme Court in the territory of tyranny

With the recent banning of lawyer Ahmednasir Abdullahi by the Supreme Court, it feels like 30 years ago when the Kenyan Judiciary felt the need to invoke its rarely exercised power to punish for contempt. 

In a letter signed by its registrar, the Supreme Court barred Ahmednasir and associates of his law firm from practicing before the court citing his frequent attacks against the judiciary.

In 1994, the Court of Appeal, sentenced lawyer GBM Kariuki to pay a substantial fine or face six months imprisonment for an article he wrote criticising the Judiciary.

Like Ahmednasir, Kariuki was a former chair of the Law Society of Kenya. Two journalists — Bedan Mbugua, chief editor of The People, and David Makali, a reporter for The People — who were charged alongside Kariuki, were sentenced to serve imprisonment for between four and five months.

A case had been brought against Kariuki, at the time a prominent lawyer, Mbugua and Makali, and the publishers of The People for contempt of court. The proceedings arose from an article criticising a ruling given by the Court of Appeal in a case filed by the then unregistered University Academic Staff Union (UASU).

The UASU case had been heard in the Court of Appeal by a bench of five judges presided over by Chief Justice Kwasi Apaloo. The court dismissed an application by members of the union seeking orders to restrain the university administration from evicting them from the institution’s houses.

In an article that Kariuki wrote anonymously in Society, an opposition newspaper, he questioned the independence of this judgement while claiming that a statement in Kerugoya by then President Daniel arap Moi, in which he referred to the UASU case then pending in court, may have influenced the decision of the judges. 

Thereafter, Makali and Mbugua wrote an article in The People, which cited the earlier article by Kariuki in Society, this time revealing his name. All three were then charged with contempt of court. They were all found guilty.

Kariuki was sentenced to pay Sh500,000 or serve a sentence of six months in default, Mbugua Sh400,000 or serve five months and Makali Sh300,000 or serve three months. They were also required to publish appropriate apologies. These were substantial fines at the time. While Kariuki apologised and paid the fine, Mbugua and Makali declared they would not pay or apologise, went into hiding but ultimately gave themselves up to start imprisonment in Manyani Prison in default. An application before the court to review the sentences failed.

The People case was the subject of intense media coverage and attracted significant international attention.  In court, where Justice Abdul Majid Cockar presided, the rancorous proceedings pitted the director of public prosecution Benard Chunga gaainst the human rights legal fraternity led by the now-late A. R. Kapila, who led the defence. The case was seen as falling in a pattern of harassment and intimidation of human rights activists, government critics and journalists in Kenya. The influential Amnesty International categorised Mbugua and Makali as prisoners of conscience, imprisoned for the expression of their non-violent political opinions, and launched a campaign requesting the public “politely worded appeal” to the Kenyan authorities seeking the release of the two.  The choice of Manyani, the jail where colonial political dissidents were jailed, summarised the symbolism of the moment.

Five years later, the Court of Appeal invoked its contempt powers again. In 1999, a political activist and publisher, Tony Gachoka, was sentenced to six months imprisonment for contempt of court after publishing articles alleging corruption in the Judiciary. Two issues of The Post on Sunday had carried articles by Gachoka, alleging that the Court of Appeal, and in particular Chief Justice Zakayo Chesoni, were implicated in bribery relating to cases arising from the Goldenberg scandal, Kenya’s biggest corruption calumny.

Separately, the Chief Justice had sued Gachoka for libel over the stories. Attorney-General Amos Wako brought the contempt case, claiming that the cases referred to were still sub judice, and that the stories were an attack on the courts and the character of judges, which needed to be protected to maintain public confidence in the administration of justice.

During the trial, a defiant Gachoka took a sensational line of defence, requesting the permission of the court to give oral testimony in his own defence and to call witnesses, among them President Moi. The court rejected both applications. In an unusual step, the case was heard before seven of the eight judges of the Court of Appeal, rather than by the High Court, which ordinarily had the power to hear cases of contempt made outside a courtroom. Only Chief Justice Chesoni did not sit on the bench.

This precluded the possibility of an appeal since the Court of Appeal was then the highest court in Kenya. Six of the judges found against Gachoka, who was sentenced to sixmonths imprisonment. Alone, Justice Evan Gicheru dissented, pointing out that the decision not to allow Gachoka to give oral testimony was prejudicial to his defence. Gachoka went on to serve his term.

While these two cases passed as individual events, unconnected to anything else that was going on at the time, the long-term fates of the key figures involved in the cases provide a sense of how public opinion solidified in the end. Chief Justice Apaloo, in office when the first of these cases was decided, quietly retired a year later. Justice Cockar, who presided over the first case, succeeded him as Chief Justice and, also, retired quietly in 1997.

Sentenced to a jail term in 1994, Kariuki was appointed a judge of the High Court --- and later promoted to the Court of Appeal. Chunga, the star of the prosecution side in the two cases, became the shock choice for Chief Justice in 1999, succeeding Chesoni who died in office. His stay was short lived. In 2002, Chunga was hounded out of office not because of any judicial misconduct but because of his previous public record as a public prosecutor. The contempt cases were part of his record as a prosecutor and would have played a role in forming a public opinion about his suitability to serve in public office.

With Chunga out of office in 2003, the country needed a new Chief Justice. The unanimous favourite was Gicheru. While he had chaired a commission of inquiry into the assassination of Robert Ouko, his strong showing in the Gachoka case consolidated a favourable public opinion and earned him that office. Except for Justice Tunoi who had also sat in the bench that jailed defendants in The People case five years earlier, the careers of the other five justices would end with the fall of Kanu. Defying the plans to remove him from office when Kanu fell, Wako, who had served under Moi and was part of these cases, would go on to serve for eight more years and was only removed from office in 2010. When President Mwai Kibaki nominated Effie Owuor, one of the judges involved, for appointment to the International Criminal Court after her removal from office, the nomination was shot down by people who referred to her removal from the judiciary.

In his unrepentant and combative response to the actions of the Supreme Court, lawyer Ahmednasir strikes the same note as the defendants that the Court of Appeal jailed in the 1990s. 

While public opinion was divided regarding the conduct of those defendants, a pervasive feeling that the defendants had not received a fair trial was also evident at the time.

In the same way that the contempt cases became synonymous with judicial tyranny and went on to become a watershed moment for the former Court of Appeal, there is now gathering a feeling that the Supreme Court has crossed into the territory of tyranny and that a time of its reckoning will come.

The writer is an advocate of the High Court of Kenya