As the country prepares to head to the ballot in 76 days, in what is shaping up into a fierce President Uhuru Kenyatta succession contest, the possibility of that contest ending up at the Supreme Court is alive.
Chief Justice Martha Koome, who is also the president of the Supreme Court, that has exclusive jurisdiction on presidential election petitions, has put on notice lawyers and litigants who would want to prosecute such matters in the court of public opinion.
Directives contained in a special issue of the Kenya gazette dated May 5, 2022 bar litigants in the presidential election petitions and their advocates from expressing their opinion on the merits and demerits of such matters, or even predicting outcomes of such petitions, until the Apex court has rendered its verdict on the presidential poll outcome.
Any breach of the amended Supreme Court rules on presidential election petitions would amount to contempt of court, according to the Chief Justice.
CJ Koome picked it up from where she left in March, after citing lawyers who took to social media to prosecute the Building Bridges Initiative (BBI) appeal that was before the country’s 7 top judges.
“The contents of those social media commentaries were, in our view, meant to influence, intimidate or scandalize the court. This unfortunate practice is emerging and unless it is checked, it will erode the confidence and the dignity of the court,” the CJ said then.
“It will also amount to unprofessional conduct, especially by counsel appearing in this matter and those who are not but know very well that they cannot comment on a matter that is pending judgement.”
That time, she trained her guns on former Law Society of Kenya (LSK) President Nelson Havi, Senior Counsel Ahmednassir Abdullahi and lawyer Esther Ang’awa, for discussing the BBI matter on Twitter.
“For counsel to appear before the Apex court then proceed to hurl unnecessary diatribe, insults and speculations on a pending judgement amounts to unethical conduct on the part of the counsel,” stated CJ Koome.
“The use of social media 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 is a trespass on the bounds of legitimate advocacy and moves the realms of professionalism to professional misconduct.”
Article 140 of the Constitution allows persons dissatisfied with presidential election results to file petitions challenging the election of the president-elect within seven days of the date of the declaration of the results.
The Supreme Court has to within 14 days hear and determine such petitions and its decision shall be final.
If the Supreme Court determines the election of the president- elect to be invalid, a fresh election shall be held within sixty days of the determination.