Lawyer sues CJ Martha Koome over new election petition rule

President Uhuru Kenyatta (centre) flanked by CJ Martha Koome and Attorney Genera Kihara Kariuki at the end of National Prayer Day at Safari Park hotel in Nairobi on May 26, 2022. [Denish Ochieng, Standard]

A lawyer has moved to court to quash Chief Justice Martha Koome’s gag order stopping public comments on the presidential election petition. Lawyer Omwanza Ombati in his petition filed at the High Court argued that the CJ’s directive stopping debate on the merits of any presidential election petition filed is unconstitutional and meant to curtail people’s freedom of expression.

“Whereas every person is entitled to the freedom of conscience, thought, belief and opinion and the freedom of expression, the CJ’s gag order unjustifiably purports to limit these rights to the detriment of the public and litigants in a presidential election petition,” said Mr Ombati in his petition.

He now wants the court to suspend the gazette notice on the Supreme Court (Presidential Election Petition) Rules published May 20 on account that it will also curtail media freedom in broadcasting and publishing articles on presidential election petition.

However, Chief Justice Martha Koome has defended the gag order, stating that it is aimed at protecting judicial integrity.

Lady Justice Koome bowed to pressure from lawyers and agreed with the Law Society of Kenya to form a committee which will look into grievances concerning the changes she made to the Supreme Court (Presidential Election Petition) Rules.

“No one wants to gag or take away the people’s freedom to speak but what we are saying is that they should not make disparaging remarks about a matter that is before court,” said CJ Koome.

“That is the practice and we must respect the court’s dignity,” she added.

The CJ made the remarks after meeting with LSK president Eric Theuri to discuss the way forward on the controversial changes to the presidential election petition rules which has received resistance from lawyers.

According to the CJ, they agreed with the LSK boss to form a committee of both judicial officers and lawyers to deliberate on the issue during a meeting on June 2 and recommend a solution to the issue.

Justice Koome stated that the Supreme Court decided to come up with the rule to protect the integrity of a presidential election petition given the tendency of lawyers to make public commentaries on active cases before court on social media.

“The Constitution allows the Supreme Court to make its own rules and since we had concerns over the manner in which lawyers have been taking to social media to make all manner of allegations against judges, we decided to come up with the rule,” said CJ Koome.

The CJ and the LSK president held the meeting after Mr Ombati filed his petition at the High Court to challenge the changes. ​

Lady justice Koome had in the gazette notice amended the Supreme Court rules in handling a presidential election petition by adding a new clause that stops debate on the merits of the case until judgment is delivered.