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Why discriminative contempt of court laws had to be invalidated

By George Kegoro | November 18th 2018

The High Court has nullified a statute that regulated the enforcement of the contempt of court powers after finding that the process of enactment was faulty and that aspects of the law contravene the Constitution.

In a judgment issued last week, High Court Judge Chacha Mwita found that “the entire Contempt of Court Act … is invalid for lack of public participation as required by… the Constitution” and also invalidated specific provisions for contravening the constitution. 

The court nullified a provision for a special procedure for instituting contempt proceedings against public entities and officials. The procedure required that, before commencing contempt proceedings against a public entity or official, the court must send a 30-day notice to the concerned accounting officer, with a copy to the Attorney General, requiring the officer to show cause why contempt proceedings should not be instituted. It is only if the accounting officer fails to reply to the notice that the court can authorise contempt proceedings against her. This special procedure does not apply where the proceedings are against a person other than a public official or entity.

Justice Mwita termed this procedure as “discriminatory” and concluded that it was “aimed at hampering the court’s ability to enforce its processes for the benefit of those in whose favour it has found.” The judge found “no legitimate, reasonable or justifiable purpose to be served by this differential treatment accorded to public officers as opposed to private citizens.”

Unjustifiable discrimination

Under the Act, a public official guilty of contempt is liable to a fine of up to Sh200,000 while a person other than a public official, is in addition to a fine of Sh200,000 also liable to imprisonment for up to six months.

Thus, a public official does not risk a jail term. The judge termed this differential treatment as “unjustifiable discrimination that is outlawed by the constitution.”

A provision shielding a public official from conviction for contempt of court when executing her duties “in good faith” was also invalidated. The court found that there can be no good if the conduct is in contempt of court.

The Contempt of Court Act was enacted in late 2016 and only came into force at the beginning of 2017. Before that, Kenya did not have a specific law on contempt of court, although this subject occupies significance in the recent political history of the country.

During the one-party era, rather than acting as a check on the Executive, the Judiciary deployed its power as an extension of state power. An engagement with courts of law in cases that had political content was, ultimately, a confrontation against the state. Partly out of the need to diversify, and also because engaging the state in the streets became increasingly risky, political activists of the time learnt that confronting the judiciary was an effective way of confronting the state. 

For example, in 1999, Tony Gachoka, the editor and publisher of The Post on Sunday, wrote a story in which he accused the Chief Justice of accepting a large bribe to protect the interests of people facing criminal charges over the Goldenberg scandal.

If the intention of very provocative story was to anger the Judiciary, it worked. In a display of unbridled wrath, the Court of Appeal convened in extraordinary fashion, a bench constituting the entire court sentencing Gachoka to a six month jail term, the maximum available in law, after an eventful trial. The court also levied a heavy fine against the magazine, to be paid as a pre-condition to resuming publication. The judges must have known that the fine was unpayable and that the publication would have to close down, as it in fact did.

During that time, the Judiciary was fair game for activist tactics calculated to anger it into making mistakes, as happened in the Gachoka case. Its harsh responses, with contempt power as its chosen tool, sapped its authority, and the legitimacy of the government whose interests it was protecting.

Shielded officials

The Contempt of Court Act signified a turning of the wheel: the declared purpose of the Act was “to define and limit the powers of courts in punishing for contempt of court.” Mwita took great exception to the word “limit”, finding that the ability to punish contempt was inherent in judicial power and could not be limited by Parliament.

When in the hands of a pliant judiciary, in the 1980s and 90s, the power to punish contempt was a cherished extension of state power. More recently, because the Judiciary is more independent, the State has come to view this same power as a threat.  That is why Parliament, now also a handmaiden of the State, could enact legislation whose declared purpose was to limit judicial power and also to shield officials from the ordinary consequences of their own actions.   

- The writer is Executive Director at KHRC. [email protected]

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