Supreme Court bans comments on presidential election petition

Chief Justice Martha Koome has outlawed public comments on presidential election petitions once filed at the Supreme Court.

In a Gazette Notice dated April 12 and published in the Kenya Gazette on May 5, the CJ amended the Supreme Court (Presidential Election Petition) rules by adding a new clause that stops debate on the merits of the case until judgment is delivered.

“The new sub-rule is added to read that upon commencement of the hearing of the petition by the court, litigants, their advocates and their agents shall refrain from expressing their opinion on merit, demerit or predict the outcome of the petition,” read the rules.

The gag order further restrained the parties that will be litigating in the presidential election petition from making public comments in any manner that would prejudice the court until judgement is delivered.

The new rules state that any breach of the provision shall amount to contempt of court and which can lead to jail sentence of up to six months in prison.

Justice Koome’s proposed changes in handling a presidential election petition has, however, caused outrage among a section of lawyers who turned to social media to voice their concerns and vowed to challenge it in court.

Former Law Society of Kenya President Nelson Havi tweeted that he will file a constitutional petition at the High Court to reverse the rule.

“I will file a petition in the High Court to have this retrogressive, unlawful and unconstitutional legal notice by CJ Martha Koome quashed and declared null and void. The Judiciary cannot be the adjudicator and the legislator at the same time, worse still, in its own cause,” said Havi.

Senior Counsel Ahmednassir Abdullahi tweeted that the CJ should have done better with the changes, while constitutional lawyer Waikwa Wanyoike wondered if commenting on the presidential election petition will be unconstitutional.

“Unconstitutional? Judges are specifically trained to avoid "noise" and decide only on the law and facts. Supreme Court should not stifle expression and public participation by resurrecting sub-judice rule,” Wanyoike tweeted.

The Constitution allows any person dissatisfied with the presidential election outcome to file a petition at the Supreme Court within 14 days after the Independent Electoral and Boundaries Commission declares the winner.

Upon filing the petition, the Supreme Court judges have 14 days to hear and make a determination of the petition. 

The rule, however, allow the judges to give a short verdict of their final decision and give detailed reasoning later.

Former Prime Minister Raila Odinga challenged the 2013 and 2017 election of President Uhuru Kenyatta. Although his 2013 petition was dismissed, he succeeded in 2017 when the apex court declared that Uhuru’s election was tainted with irregularities and ordered a fresh election.