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By Christine Wamaithay
Njoroge Regeru & Company
Nairobi, Kenya

The Contempt of Court Act was assented into law on 23rd December, 2016 and came into force on 13th January, 2017. The Act defines Contempt of Court and limits the powers of Courts in punishing for it. Section 4 of the Act provides that contempt of court includes both civil contempt and criminal contempt. Section 5 of the Act further categorizes contempt as direct or contempt in the face of the court, and indirect or contempt outside the court.

Kenya has never had a Contempt of Court Act prior to 23rd December, 2016. The furthest that the Country had gone with regard to coming up with legislation for Contempt of Court was the Contempt of Court Bill 2013 which faced a lot of criticism for suppressing the freedom of expression.

The Koinange-Gachoka case also raised serious concerns for freedom of expression in relation to contempt of court. In June 2015, the Chief Magistrates Court at Nairobi convicted Jeff Koinange, a media personality and Tony Gachoka, a political activist for Contempt of Court. The two were accused of defying an interim injunction issued in a defamation case and holding discussions on the ongoing case in the Jeff Koinange Live “JKLive” talk show hosted by Mr. Koinange on 1st April, 2015. The two were later convicted of the offence of contempt of court and sentenced to imprisonment or in the alternative to a fine of Kshs 2 million. The High Court however suspended the case against Jeff Koinange and Tony Gachoka, and allowed their petition challenging the constitutionality of criminal defamation in Kenya. The High Court also suspended the find of 2 Million Kenya Shillings issued against them. Moreover, The High Court ordered 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.

In 1999, Mr. Gachoka as editor and publisher of ‘The Post on Sunday’ had published an article titled “Chesoni implicated in Goldenberg cover up: An expose of judicial corruption in Kenya” in which Mr. Gachoka made allegations of high level corruption in the Kenyan judiciary, alleging that the then Chief Justice Zaccheus Chesoni had received a Kshs 30 Million bribe to ensure that the Courts ruled in favour of one of the litigants in a certain case.

The Attorney General instituted Contempt of Court proceedings against Mr. Gachoka and his publication on the grounds that the publications were sub-judice and a scurrilous and unjustified attack on the Court which were calculated to bring the administration of justice in Kenya into disrepute and contempt. In the case of Republic versus Gachoka, a seven-judge Court of Appeal bench found Mr Gachoka guilty of the charges of Contempt of Court; and sentenced him to the maximum six months’ imprisonment without the option of a fine. The “Post on Sunday” was fined Kshs 1 Million, the payment of which allegedly pushed the magazine out of business. Mr. Gachoka would later be awarded Kshs 1 Million for the violation of his fundamental rights and freedoms while he was in prison serving the six-month sentence.

Due to the lack of specific legislation, Kenya has always relied on the Judicature Act, Chapter 8 of the Laws of Kenya when it comes to dealing with Contempt of Court matters. Section 5 of the Judicature Act gives power to the High Court and the Court of Appeal to punish for Contempt of Court. This new Act has therefore provided a clear guideline with regard to Contempt of Court matters by clearly describing the offence of Contempt, the jurisdiction of the courts in handling contempt and prescribing the punishment for the offence.

Scope of the Act

The Act is of great importance as it seeks to, inter alia: (1) uphold the dignity and authority of the Court, (2) ensure compliance with the directions of Court, and (3) preserve an effective and impartial system of justice.

Of importance to note is that the Chief Justice is empowered to make rules of procedure to regulate proceedings and the process of trying an offence of Contempt of Court in the Superior and Subordinate Courts, including transfer of proceedings from a Subordinate Court to a Superior Court, proceedings in camera and prohibition of publication of proceedings, appeals and limitation for appeals.

Any proceedings to try an offence of Contempt of Court provided for under any other written law shall not take away the right of any person to a fair trial and fair administrative action in accordance with Articles 47 and 50 of the Constitution. Proceedings for criminal contempt of court shall not be instituted except by or with the consent of the Director of Public Prosecutions, with the leave of the court or on the motion of a court having jurisdiction to deal with criminal contempt of court.

The offence of Contempt of Court however, has a number of defences as prescribed by Section 9 of the Act. Some of the defences are: a fair comment made in good faith, a publication of a fair and accurate report of any judicial proceeding and a true declaration made in good faith among others.

The concept of strict liability is also broadly discussed in the Act. Section 10 of the Act defines strict liability in relation to contempt of court as the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so. This means that a person who commits an offence of contempt even without intention will still be guilty of contempt of court. The strict liability rule however, applies only in relation to publication as stated by section 10(2) of the Act.

The Act has further provided for defences to the strict liability rule. Section 12 states that a person who has been charged with the offence of Contempt of Court can rely on any defence available at common law.

Furthermore, a person will not be guilty of Contempt of Court under the strict liability rule if that person has published any matter which interferes or obstructs the course of justice in connection with any civil or criminal proceedings pending at the time of publication. The defence however can only be relied upon if at the time of publication, that person had no reason to believe that the proceedings were pending.

Offences

Section 27 of the Act has outlined the instances in which a person can be found guilty of the offence of Contempt of Court. Some include:

A person who—

(a)   assaults, threatens, intimidates, or willfully insults a judge or judicial officer or a witness, during a sitting or attendance in a court, or in going to or returning from the court;

(b)   willfully and without lawful excuse disobeys an order or directions of a superior or subordinate court in the course of the hearing of a proceeding;

(c)    within the premises in which any judicial proceeding is being had or taken, shows disrespect with reference to such proceeding, or any person before whom such proceeding is being heard or taken;

(d)   causes an obstruction or disturbance in the course of a judicial proceeding;

Section 28 of the Act goes ahead to prescribe the punishment for the offence. Accordingly, a person who is convicted of Contempt of Court is liable to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding six months, or to both. The Court may also order that the accused person be detained in police custody until the next Court session.

Where the Contempt of Court is committed by a company and it is proved to the satisfaction of the court that the contempt was committed with the consent or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and may, with the leave of the Court be committed to civil jail and in addition, be liable to a fine not exceeding two hundred thousand shillings.

Furthermore, a State Organ, Government Department, Ministry or Corporation can also be charged with the offence of Contempt of Court in respect of any undertaking given to a court by the State Organ, Government Department, Ministry or Corporation. A notice of not less than thirty days must however be issued to the accounting officer to show cause why Contempt of Court proceedings should not be commenced against the accounting officer. The notice must also be served on the Attorney General. If the accounting officer does not respond to the notice to show cause, within thirty days of the receipt of the notice, the court shall proceed and commence Contempt of Court proceedings against the said accounting officer.

Where it is proved to the satisfaction of the Court that the contempt has been committed with the consent or is attributable to any neglect on the part of any accounting officer, the accounting officer shall be deemed to be guilty of the contempt and may with the leave of the court be liable to a fine not exceeding two hundred thousand shillings. A State Officer or public officer cannot however be convicted of contempt of court for the execution of his duties in good faith.

Conclusion

From the forgoing, the Act has brought with it new measures to deal with Contempt of Court. It has outlined the various instances in which a person can be found guilty of the offence of Contempt of Court, prescribed the jurisdiction of the various Courts with regard to dealing with Contempt of Court and the punishment for the offence. The provisions of this Act therefore supersede any other written law relating to Contempt of Court.