CJ Koome gags lawyers from commenting on presidential poll petition

Chief Justice Martha Koome has amended rules that govern proceedings of the Supreme Court to block lawyers and litigants from making comments on a presidential election petition.

In the amended rules, the CJ has banned litigants, their advocates and agents from expressing their opinions or predicting the outcome of a case involving the election of the President.

“Upon commencement of the hearing of the petition by the court, litigants, their advocates and advocates’ agents shall refrain from expressing their opinion on merit, demerit or predict the outcome of the petition in any manner that would prejudice or impede court proceedings, until judgment is delivered,” reads the new rule.

A breach of the direction will amount to contempt of court, it says, meaning those found culpable of breaching the rule will be punished. The amendment, which has since been gazetted, comes slightly over two months to the August 9 General Election.

Social media comments

The amendment appears to have been triggered by social media comments and predictions by top advocates and other Kenyans in relation to the outcome of the Constitutional Amendment Bill – the Building Bridges Initiative (BBI) case.

Prior to delivery of the judgment on March 31, lawyers took to the social media to discuss and predict the outcome of the lawsuit that was filed by a citizens’ voluntary group opposing amendment of the Constitution.

After reading the verdict on the BBI, the CJ faulted lawyers Nelson Havi, Ahmednasir Abdullahi and Esther Ang’awa for trying to influence the case through social media posts.

Without mincing her words, the Supreme Court president, who also chairs the human resource and disciplinary arm of the courts — the Judicial Service Commission — accused the lawyers of being unprofessional.

The CJ singled out the three advocates for using social media to cast the court in bad light.

“The contents of some of those commentaries were, in our view, meant to influence, intimidate or scandalise the court. This, unfortunately, is emerging and unless checked, it will erode the confidence and dignity of the courts,” she said.

Such behaviour, she said, amounted to unprofessional conduct, especially for Mr Havi and Ms Ang’awa, who were appearing in the BBI matter.

“Once a judgment has been reserved and judges retreated to consider some issues and write judgments, learned counsels Mr Nelson Havi and Ms Esther Ang’awa, who appeared for the first and fifth respondents took to social media, Twitter on different occasions. On February 15 and 19, 2022 and cast aspersions on the courts. 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 parts of the counsel,” the CJ said.

“Ahmednasir Abdullahi, who was not a counsel appearing in this matter, took the lead role in disparaging the court as evidenced from his posts on Twitter on February 8, 2022, February 15, 2022, and even as late as yesterday (March 30, 2022),” she said.

Irreproachable professional conduct

To Mr Abdullahi, who is a senior counsel, she said: “The title senior counsel is conferred on the basis of irreproachable professional conduct and exemplary service to the legal and public service in Kenya. These standards are expected to continue, even after conferment of the rank of senior counsel.”

She reminded the advocates that the law had a well-established practice where counsel and parties should refrain from directly and indirectly trying to improperly influence the courts in one way or another.

“Advocates should familiarise themselves with the code of standards of professional practice and ethical conduct, and strive to conduct themselves in a manner that preserves and strengthens the dignity, honour and ethics of the profession. Advocates should refrain from conduct that amounts to indirectly attempting to influence decisions before court,” she said.

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