The Government has introduced into Parliament a Bill on Contempt of Court. It’s a mixture of the reasonably good, the positively bad and the confused – or confusing.

What is contempt?

The most important form of contempt is disobeying a court order, which might, for example, be to pay money, to do something or stop doing something. For this one can be punished.

Another is contempt “in the face of the court”: usually disruptive behaviour. Cases elsewhere have included distributing leaflets in the public gallery, wearing offensive clothing or no clothing, applauding in the public gallery, conducting a protest in court, and throwing things at the judges.

What concern me here are two types of contempt coming under the heading of “publication contempt”. The main problem with them is that they are restrictions on freedom of speech.

Scandalising the court

This peculiar expression means publishing (in a newspaper, on social media or any other way) anything likely to bring a court or a judge into contempt, or to lower his or her authority. In 1981 Wangari Mathai was sent to prison for six months for this. She had said about her own divorce case, “I will say without fear that there can only be two reasons for the court to have said that I committed adultery: corruption or incompetence”.

No “scandalising” case has been brought in England since 1931, and the offence was recently abolished there. The English Law Commission, recommending abolition, thought that it was no longer appropriate in an era of free speech. It said “Preventing criticism contributes to a public perception that judges are engaged in a cover-up and that there must be something to hide.” Genuine criticism, they said, must be tolerated. Abuse should be shrugged off. Statements that really encouraged violence against a judge or court should be punished like any other sort of encouragement of violence. And for a false statement of fact a judge could sue for damages for defamation. In other words, the Law Commission was saying that a special offence protecting courts and judges is unnecessary.

It added that scandalising the court is a vague offence, perhaps too vague to be allowed to limit free speech. Only law can limit our rights under the Constitution. Vague law is not “law” for this purpose. Kenyan courts have taken this approach in some cases. For example, in the Security Laws Amendment Act case in 2015, five judges held that an offence of publishing information that “undermines investigations or security operations” was too vague, and so unconstitutional.

Judge Byrom Ongaya recently commented that our constitutional rights and freedoms of conscience, expression, media, access to information, political rights, and association “must all be recognised, protected and upheld by the judiciary and not defeated by the manner in which the courts exercise the scandalising jurisdiction.”

But the Bill before Parliament endorses the offence: behaviour that “scandalizes or tends to scandalize, or lowers or tends to lower the judicial authority or dignity of the court” . What a pity that we should be revivifying this relic of an age when respect and authority depended on status.

Our modern judiciary must depend for respect and acquiescence from the people not on wigs and gowns and ceremony, but on unimpeachable integrity, impeccable behaviour and superb competence. They should not need the existence of scandalising the court to maintain “a blaze of glory around them” as an eighteenth century court insisted.

Most regrettable is including protection of judges’ dignity. The purpose of offences of contempt is to protect the system and fair trials, not the dignity of individuals. Has our judiciary actually asked for this protection, one wonders!

The sub judice rule

The other type of contempt by publication involves publishing something that interferes with an ongoing case.

On this, the Kenyan Bill it is based on the 1981 English Contempt of Court Act. That was passed because the European Court of Human Rights had held that the English law violated freedom of speech. The main problem was that someone can be guilty of the crime of contempt even if they did not intend to affect the outcome of any case. In other words, the element of intention (a guilty mind) that is usually vital for people to be convicted of serious offences is not required.

The Kenyan Bill follows the English Act by saying that a person can be liable for contempt without any intention to affect an ongoing case only if the publication creates a “substantial risk that the course of justice will be seriously impeded or prejudiced”.

This is a distinct improvement on earlier versions of the Bill that referred to “a risk” (not necessarily substantial) of impeding of prejudicing (not necessarily seriously) the course of justice. But of course it is still a limit on freedom of expression. There is a defence if the publisher did not realise there was an ongoing case in court.

Most of the discussion in the English Law Commission’s consultation document is about the impact of media discussion on jury trials. In England the most serious crimes are decided by juries (twelve ordinary people), and most of the others by non-lawyer magistrates. So there is fear that they may decide the case influenced by what they read and not on the basis of the evidence and arguments they actually hear in court.

But every criminal trial in this country, and most civil cases, too, are conducted by professional lawyers. They are hopefully much less likely to be influenced by what is said about the case in the newspapers or social media.

But there are risks about unbridled public comment and some limits on publication are justified. Even professional judges are not supposed to know about any criminal record of individuals they are trying—so they should not be able to read about then in the newspapers. And a public outcry for vengeance or exaggerated media accounts of a crime that is actually being tried might influence the minds of even some judges or magistrates. Even if not, the public might be led to feel a trial is unfair because they “knew” things that the court did not know or had to ignore.

Going the right way?

We ought to have a full discussion about the issues, to reach a reasonable balance between freedom of speech and media and protecting the judicial system.

For example, is it enough to say there must be a “substantial risk” that a publication might interfere with a case? Should publication be a crime only if there is more than a 50% chance (maybe a “high risk”)? And apparently it is not very clear from the English cases what “impeded or prejudiced” means. What a pity to try to follow English law without considering how that law works, and without considering the significant differences between our legal systems.

Maybe our law should set out clearly what must not be done (like discussing the past convictions of a person being tried).

Is it really necessary to have any law of contempt by publication to protect the Court of Appeal and Supreme Court (always sitting with 3, 5 or even 7, highly professional, judges)?

Why does Kenya think it is all right to do law reform on the cheap—in terms of intellectual effort and public information and participation? The English and New Zealand Law Commissions have been considering this topic for years and have yet to produce their final reports.

Meanwhile, they produce consultation documents and give plenty of time for input. The Kenyan Law Reform Commission has worked on this (but does not share its thinking with us). The defunct Commission on the Implementation of the Constitution commented on the 2012 draft, as did Article 19, the NGO.

But it will be too late for a proper discussion when eventually the National Assembly invites us to comment and gives us, in its usual style, 6 days to do so.

Jill Cotrell Ghai 

The Author is a Director of the Katiba Institute