Lawyers have slammed Chief Justice Martha Koome’s decision to prevent advocates and litigants from commenting on a presidential election case while it is still pending before the Supreme Court.
The Law Society of Kenya (LSK) issued a statement on Wednesday urging the Supreme Court President to rescind the directions, which they described as “draconian, unjustified, and vague,” and threatened to sue her if she did not comply.
“We’re writing to CJ, requesting that she withdraw the change immediately to allow for public engagement.” Before the guidelines were gazetted, she should have offered them to LSK and other stakeholders for review and discussion,” said LSK president Eric Theuri.
“We’ll take her to jail if she doesn’t comply.”
By amending Rule 18 of the Supreme Court (Presidential Election Petition) Rules, 2017, CJ Koome established the gag rule.
Until judgment is rendered, plaintiffs, their attorneys, and their attorneys’ representatives are not authorized to express their opinions on the merits or demerits of the petition, or to forecast the outcome of the petition “in any manner that may prejudice or obstruct court processes.”
Contempt of court is what happens if you don’t comply.
Lawyers, on the other hand, see it as an attempt to “criminalise statements” in violation of the Constitution’s freedom of expression guarantee.
They contend that talks or comments made by advocates cannot affect a court’s judgment.
“Though intended to protect the integrity of Supreme Court proceedings, the amendment cannot be supported in a democratic society that values constitutional rights and freedom of expression,” Theuri said.
He went on to say that because there is no right of appeal, the Supreme Court should be the final court to punish someone for contempt.
The new law comes after Chief Justice Koome publicly chastised lawyers Nelson Havi, Esther Ang’awa, and Ahmednassir Abdullai for making comments on social media concerning the BBI case while the court was still in session.
CJ Koome said the lawyers’ behavior was aimed to frighten and scandalize the court’s decision in the controversial case before announcing the final ruling on March 31 at the Supreme Court.
“During the course of making this judgment, the court was concerned to see comments on the forthcoming judgment made on social media by various council members, some of whom are appearing in this matter,” the CJ noted.
“On different times on February 19th and February 15, 2022, counsel Mr. Nelson Havi and Ms. Esther Ang’awa who appeared for the first and fifth respondents took to Twitter and cast aspersions on the court,” remarked CJ Koome.
“Equally guilty is the conduct of SC Ahmednassir Abdullai, who, despite not participating in this case, played a leading role in criticizing the court, as seen by his tweets on February 8, 2022, February 15, 2022, and even as recently as March 29, 2022.”
Their views were intended to “intimidate and scandalize the court’s judgment,” according to the President of the Supreme Court, who added that until the practice is stopped, it “will destroy the confidence and dignity of the court.”
She called the tweets unethical and unprofessional, and she reminded the lawyers that they are still obligated by the Advocates Act, even though they have been given the title of Senior Counsel.