Chief Justice Martha Koome faulted lawyers Nelson Havi, Ahmednasir Abdullahi and Esther Ang’awa for trying to influence BBI appeal outcome through social media posts.
While delivering the supreme verdict on BBI fate, Koome said some of the comments made by the trio bordered on “intimidation”.
“The contents of those social media commentaries were, in our view, meant to influence, intimidate or scandalise the court,” she said.
“This unfortunate practice is emerging, and unless it is checked, it will erode the confidence and the dignity of the court. It would also amount to unprofessional conduct, especially by counsels appearing in this matter, and even counsels who are not in this matter. They, however, know very well that they cannot comment on a matter that is pending judgement,” stated the Chief Justice.
The CJ spotlighted Havi, Abdullahi and Ang’awa as the lawyers who “attempted to compromise the BBI verdict”.
“Once judgement has been reserved, and judges retreated to consider submissions and write judgement, learned counsel Nelson Havi and Esther Ag’awa, who appeared for the first and fifth respondents, took to the social media platform Twitter on different occasions on February 19 and February 15, 2022 to cast aspersions on the court.
“For a counsel to appear before the apex court, then proceed to hull unnecessary insults and speculations on a pending judgement, amounts to unethical conduct on the acts of the counsels,” she said.
Martha Koome expressed concern at how social media has been used by lawyers to “disparage the court with the intention of lowering the dignity and the authority of the court, or influencing the outcome of the case pending before the court”.
She said this “is a trespass on the bounds of legitimate advocacy, and moves from the realm of professionalism to professional misconduct.”
“Ahmednasir Abdullahi, who was not a counsel appearing in this [BBI appeal] matter, took the lead-role in disparaging the court as evidenced from his posts on Twitter on February 8, 2022, February 15, 2022, and even as late as yesterday (March 30, 2022,” she said.
The Chief Justice urged the senior counsels to treat their titles with honour, both inside and outside the court precincts.
“[The title senior counsel] is conferred on the basis of irreproachable professional conduct and exemplary service to the legal and public service in Kenya. These standards are expected to continue, even after conferment of the rank of Senior Counsel.
“Advocates should familiarise themselves with the code of standards of professional practice and ethical conduct, and strive to conduct themselves in a manner that preserves and strengthens the dignity, honour and ethics of the profession. Advocates should refrain from conduct that amounts to indirectly attempting to influence decisions before court,” she said.
The Supreme Court, in its verdict, threw out the BBI push, holding that President Uhuru Kenyatta used the popular initiative route to suggest changes to the Constitution. The court declared that only the common mwananchi can use the popular initiative path to initiate constitutional reforms.