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Kenya: Contempt of Court proceedings abused

 

ARTICLE 19 East Africa is concerned by the recent arrest of talk show host Jeff Koinange and Political Activist Tony Gachoka for contempt of court. The pair are accused of linking business tycoon Jimmy Wanjigi to the multibillion ‘Anglo Leasing’ corruption scandal on the show ‘JK Live’.

The arrests, and subsequent fine of 2 million Kenya Shillings, or imprisonment for 6 months issued by the Lower Court against the pair raises serious concerns for freedom of expression, and threatens to limit legitimate discussion in the media on important national issues. This case demonstrates that legal reforms are needed to ensure that fundamental rights are not unduly limited in the name of safeguarding the administration of justice.

“The judiciary in Kenya has become increasingly sensitive to scrutiny and criticism of their decisions, resulting in an alarming rise in journalists being punished for contempt of court,” said Henry Maina, Director of ARTICLE 19 East Africa. “Justice must not only be done, but it must also be seen to be done and, in order for that to happen, there must be room for frank and open discussion of court proceedings even where cases are ongoing. Courts should be capable of withstanding criticism and should not attempt to silence the media on issues of public importance.”

The Director of Public Prosecutions has brought charges against 7 current and former senior government officials and 3 prominent businessmen for defrauding the government of billions of shillings through bogus ‘Anglo Leasing’ contracts over a decade ago. ARTICLE 19 notes that the comments made by Mr. Koinange and Mr. Gachoka have no bearing on the ongoing prosecutions, and therefore cannot be said to prejudice ongoing trials or the administration of justice in any manner.

ARTICLE 19 welcomes the recent High Court decision which suspended the case against Jeff Koinange and Tony Gachoka, and allowed their petition challenging the constitutionality of criminal defamation in Kenya. We also welcome the High court’s decisions to suspend the 2 million Kenya Shillings fine issued against the pair, and the order for the immediate release of Mr. Gachoka who was imprisoned for failing to raise the 2 million fine imposed on him by the Lower Court. This positive step towards an effective protection of freedom of expression in Kenya should be followed by legal reforms.

Contempt of court exists to protect the impartiality or authority of a legal process i.e. interfering with the administration of justice. However, it has been abused in Kenya to hamper freedom of expression and silence legitimate debate, particularly by the media.

International standards are clear that the right to freedom of expression includes the right to comment on on-going judicial proceedings, and such scrutiny not only informs the public but enhances the effectiveness and integrity of the judicial system.

ARTICLE 19 has previously commented on the draft Contempt of Court Bill, published in 2013, and called for changes to be made to it. Intended to replace the relevant provisions of the Judicature Act, the draft Bill fails to strike an appropriate balance between protecting judicial processes and concurrently enabling access to information and open media scrutiny of the administration of justice. The draft Bill notably includes overbroad definitions for the contempt offences, that would remain open to abuse, and insufficient safeguards to protect sources of information.

The Contempt of Court Bill was forwarded to the Office of the Attorney-General by the Commission on the Implementation of the Constitution (CIC Kenya) in 2014 and as things stand, the bill has yet to be forwarded to parliament by the AGs Office.

ARTICLE 19 reiterates that contempt of court proceedings must not be used to stifle media coverage of the administration of justice. We call upon the Attorney General to promptly take into account the issues raised regarding the draft bill and table it in the parliament for deliberation and enactment.