Lawyers and litigants can now freely discuss an active presidential petition at the Supreme Court after the High Court in Nairobi quashed rules by the apex court in May.
This means that should Azimio la Umoja One Kenya Coalition party challenge election results at the Supreme Court, parties to the suit will be free to discuss and even speculate on the outcome of the case.
Justice Mugure Thande, in her judgment on August 17, 2022, found the regulations gazetted by the country’s top court amounted to limiting freedom of expression without public participation and the involvement of Parliament.
The regulations were put in place following Twitter discussions on which side the Supreme Court judges would lean during the Building Bridges Initiative (BBI) case.
They read that 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 the court proceedings until judgment is delivered.
In court, Supreme Court’s Deputy Registrar Bernard Kasavuli told the judge that lawyers who appeared before that court in the BBI case proceeded to hurl unnecessary diatribes, insults, and speculations on a pending judgment.
According to Kasavuli, the regulations were to protect judges from external influence and interference and being influenced by discussions outside the courtroom. However, Justice Thande found that the Supreme Court had illegally taken the role of Parliament by coming up with the regulations.
At the same time, she said, the top court surpassed its powers as it did not seek Parliament’s approval.
She said although the CJ Martha Koome-led court has the leeway to housekeep and dictate how it will run its affairs, it cannot take up the responsibilities of other agencies.
“It is only Parliament that has the power to make provision that has the force of law. Any other person or body may only do so under the authority of the Constitution or statute. The impugned rules purport to make provision that has the force of law and are enforceable by the court through penal provisions. To this extent, I find that the Supreme Court went overboard. Such provision can only be made by Parliament or with its approval. More so because the provision has the effect of taking away rights,” said Justice Thande.
The case was filed by lawyer Omwanza Ombati. He argued that the Supreme Court (Presidential Election Petition) (Amendment) Rules, 2022 were irregular and had limited the right to free speech. According to Omwanza, the Supreme Court had no power to make rules that have a penal punishment. He asserted that role belongs to Parliament.
His case was supported by Kenya National Human Rights and Equality Commission. According to the commission’s CEO Bernard Mogusu, the rules went overboard and interfered with the freedom of the media.
Following the judgment, questions have arisen about whether the Supreme Court can deal with the issue or settle it while it is before the Court of Appeal.
Lawyer Shadrack Wambui told The Standard that it is impossible for the top court to take up the case before it is determined by the Court of Appeal. He says it is now open for litigants, agents, and lawyers to discuss the issues before Supreme Court.
“You can only be punished if you have offended a law. The court cannot sit on appeal on a live case before the Court of Appeal. If you read well, it was about parties who appear before the court. The parties and advocates can continue doing this,” said Wambui.
Senior lawyer Charles Kanjama on the other hand says although the highest court in the land cannot use the same regulations, it can issue directions on the same issue and use other laws to punish contempt.
“There are two ways which the Supreme Court can deal with the issues, can follow the regulations but has inherent powers to punish for contempt. They can punish for contempt under other laws but not that which has been declared unconstitutional. They can give directions because they have inherent power,” said Kanjama.
Meanwhile, the Supreme Court has finally set up at the Milimani building, Nairoibi. The Standard has learned that all the seven judges; Chief Justice, her deputy Philomena Mwilu, Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko have been allocated offices at the Upperhill premises and a makeshift registry has already been set up.
The judges visited their ‘new’ offices on Monday. The offices, which are meant for High Court judges, will host those from the Supreme Court during the hearing of the presidential election. There is a makeshift registry at Milimani where litigants will file their court papers.
At the same time, the judiciary police unit has beefed up security at Milimani. Assistant Inspector General of Police Lazarus Opicho yesterday convened the meeting with the officers who will be manning Milimani during the hearing. The Supreme Court has also issued directions on how the parties are going to file and serve the other parties. The petitioners have seven days to file their papers.