CJ Martha Koome sued over polls gag rule

A Nairobi-based lawyer has sued Chief Justice Martha Koome for outlawing public comments by advocates and litigants on a presidential election petition once it is filed at the Supreme Court and while it is still being heard.

Lawyer Omwanza Ombati wants the High Court to quash the new rule gazetted by the CJ on grounds that it is oppressive, unconstitutional, vague, unreasonable and unlawful.

In the petition filed at the High Court in Milimani Nairobi, Mr Ombati says the rule is unjustifiable for limiting the rights to the freedom of conscience, thought, belief and opinion, and the freedom of expression.

“The rules equally limit, unjustifiably so, the freedom of the media by which freedom, the state is prohibited from exercising control or interfering with any person broadcasting, producing or circulating and disseminating publications or information by any medium,” says Mr Ombati.

The disputed regulation dubbed ‘Presidential Petition Amended Rules, 2022’ targets advocates and litigants who may be appearing at the Supreme Court in the event there will be a presidential petition.

Their agents are also prohibited from expressing their views and opinions on presidential election petitions or predicting the outcome of the proceedings in any manner until judgment is delivered.

The CJ, who is also the president of the Supreme Court, introduced the gag regulation through an amendment of Rule 18 of the Supreme Court (Presidential Election Petition) Rules, 2017.

The new sub-rule states: “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 court proceedings, until judgment is delivered.”

A breach of the direction will amount to contempt of court and penal consequences will ensue.

However, Mr Ombati says since every person is entitled to freedom of expression, the state is prohibited from penalising any person for any opinion or view or the content of any broadcast, publication or dissemination.

“In so far as every citizen is entitled to access information, the disputed rules unjustifiably and unreasonably fetter the enjoyment of this right by censuring persons who honestly, and in good faith, issue commentaries on cases before the courts for the enlightenment of the populace or critiquing the Judiciary with a view to hold it accountable,” says Mr Ombati.

In his petition he argues that the new rules are detrimental to litigants, their instructed counsel and even advocates’ employees and agents.

He adds that although the rules have far-reaching implications on the forthcoming presidential elections slated for August 9, 2022, no public participation was conducted before they were issued. The process that led to the enactment was constitutionally infirm.

“No views were taken from the three categories of people likely to be affected by the disputed rules. These are presidential candidates, advocates and the general public. There is imminent danger of violation of rights if this court does not intervene in a timely manner,” states Mr Ombati.

Also sued in the petition is the Attorney General, the legal advisor of the government, while the Law Society of Kenya and the Kenya National Human Rights and Equality Commission are listed as interested parties.

The case is awaiting hearing directions.