Lawyers have condemned Chief Justice Martha Koome over the Supreme Court’s decision to gag advocates and litigants from making comments on a presidential election petition while it is still being heard.
The Law Society of Kenya (LSK) yesterday described the decision as “drastic, unjustifiable and ambiguous”, promising to sue the CJ if she fails to rescind her decision “to criminalise comments”.
“We are writing a letter to CJ asking her to recall the amendment with immediate effect to allow for public participation. She should have presented the rules to LSK and other stakeholders to look at them and make comments before they were gazetted,” LSK president Eric Theuri said.
Against freedom of expression
The new rule, he said, is against freedom of expression as enshrined in the Constitution, adding that the decision of a court cannot be influenced by conversations or comments made by advocates.
“If she does not comply, we’ll go to court to challenge legality of the regulation. LSK was not aware of the amendments; we learnt about them in the gazette notice,” Mr Theuri stated.
The CJ introduced the gag rule through an amendment of Rule 18 of the Supreme Court (Presidential Election Petition) Rules, 2017.
“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.
But the LSK said it disagrees with the position of the CJ.
“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,” the LSK president said.
Mr Theuri added that public or social media comments should never influence a judge in coming up with a verdict.
Blind to comments
“Judges are perceived to be blind to comments made on social media because they make their rulings on the basis of the facts and evidence presented to them,” the LSK boss said.
He added: “The manner in which they have drafted that amendment is problematic because they are speaking of a comment that can be deemed to influence the administration of justice, which is a very wide latitude. As it is, someone cannot know exactly what constitutes the offence,” Mr Theuri said.
In defence of lawyers who predict outcome of a case in social media platforms, Mr Theuri said courts are bound by precedents and that court verdicts can be predictable.
“When a court makes a decision that is contrary to judicial precedents then there must be explanation why the judge is departing from previous decisions of the court. That means as an advocate, you’re able to predict on basis of previous court decisions what outcome will arise from a particular set of facts,” he stated.
Mr Theuri added that, the Supreme Court should also be the last court to sentence anyone for contempt because there is no right of appeal.
The decision of the CJ appears to have been triggered by social media comments by top advocates and other Kenyans in relation to the outcome of the Constitutional Amendment Bill, the Building Bridges Initiative (BBI) case.
The Chief Justice had castigated lawyers Nelson Havi (former LSK president), Ahmednasir Abdullahi and Esther Ang’awa for trying to influence the case through social media posts.
Yesterday, the three lawyers opposed the new rule.
Mr Abdullahi said: “Sad...CJ Koome can do better!!”, while Mr Havi said he will challenge the new regulation in court.
“I will file a petition in the High Court to have this retrogressive, unlawful and unconstitutional legal notice by CJ Koome quashed and declared null and void. The Judiciary cannot be the adjudicator and the legislator at the same time, worse still, in its own cause,” Mr Havi said.
After reading the BBI judgment, CJ Koome accused the lawyers of being unprofessional.
“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 added, amounted to unprofessional conduct, especially for Mr Havi and Ms Ang’awa, who were appearing in the BBI matter.