Presidential poll petition: High Court blocks CJ Koome from gagging lawyers

Martha Karambu Koome

Chief Justice Martha Karambu Koome at the Supreme Court grounds on May 24, 2021. 

Photo credit: Dennis Onsongo | Nation Media Group

Chief Justice Martha Koome suffered a blow yesterday after the High Court declared unlawful her decision to gag advocates and litigants from making comments on a presidential election petition while it is still being heard by the Supreme Court.

Justice Mugure Thande quashed the Supreme Court (Presidential Election Petition Amendment Rules) 2022 and declared them unconstitutional for not adhering to public participation requirements.

The rule had outlawed public comments on merits of a presidential election petition once filed at the Supreme Court and while it is still pending determination. It also banned speculation of the outcome of the petition.

CJ Koome, in defending the rule, had said the purpose of the rules was to protect integrity of court proceedings since there was a section of lawyers who used to appear in court, argue their case and later take their arguments to social media disparaging judges. 

She argued that the rules, which were gazettted on April 12, 2022, were meant to ensure both the dignity and independence of the court is maintained and that the intention was not to take away the freedom of expression.

But Justice Thande found that the development of the rules was unconstitutional as it amounted to usurpation of the authority of Parliament to define, through legislation, what amounts to contempt.

The judge declared that the disputed rules are not statutory instruments within the meaning of the Statutory Instruments Act.

“A declaration is issued that the disputed rules are unconstitutional for want of public participation and for usurpation of Parliament’s role in legislating on contempt and making penal provisions,” she stated.

She was delivering the court’s verdict on a petition filed by Nairobi-based lawyer Omwanza Ombati who argued that the rule was oppressive, unconstitutional, vague, unreasonable and unlawful.

Mr Ombati’s advocates, Evans Oganda and Brian Onderi, told the court that the rule was unjustifiable for limiting the rights to the freedom of conscience, thought, belief and opinion, and the freedom of expression.

“The rules equally limit, unjustifiably so, the freedom of the media by which freedom, the state is prohibited from exercising control or interfering with any person broadcasting, producing or circulating and disseminating publications or information by any medium,” said the advocates. 

Freedom of expression

They said no views were taken from the categories of people who stood to be affected by the disputed rules. They include the Presidential candidates, advocates and the general public.

According to them, since every person is entitled to the freedom of expression, the State is prohibited from penalizing any person for expressing an opinion or view or the content of any broadcast, publication or dissemination.

“In so far as every citizen is entitled to access information, the disputed rules unjustifiably and unreasonably fetter the enjoyment of this right by censuring persons who honestly, and in good faith, issue commentaries on cases before the courts for the enlightenment of the populace or critiquing the judiciary with a view to hold it accountable,” they said.

It was their position that the new rules were also detrimental to litigants, their instructed counsels and even advocates’ employees and agents.

The quashed rule stated: “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.”

A breach of the direction will amount to contempt of court and penal consequences would ensue.

During hearing of the petition, the CJ argued that advocates must avoid commentary that offends their duty as officers of the court.

She said advocates have a duty to ensure the dignity and respect of the court proceedings is maintained as stipulated in section 55 of the Advocates’ Act.

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