City lawyer challenges rules gagging comments on presidential petition


Lawyer Omwanza Ombati. FILE PHOTO | NMG

A city advocate has moved to court to challenge Supreme Court rules published by Chief Justice Martha Koome barring gagging advocates and litigants from commenting on a presidential election petition once it has been filed at the top court until the conclusion of the matter.

Lawyer Omwanza Ombati says in a petition filed before the High Court that the rules published in the Kenya Gazette unjustifiably limit freedom of expression. 

In the rules, CJ Koome barred Kenyans from expressing their opinion or predicting the outcome of the petition in any manner that would prejudice or impede court proceedings, until the judgment is delivered.

The publication of the rules caused an uproar with the Law Society of Kenya saying it would challenge them in court. 

Mr Omabi, however, wants the court to suspend the rules arguing that it purports to limit rights, to the detriment of litigants, their counsel and even advocates of agents.

“Prior to or during or after the issuance of the impugned Rules, no justification was made for limiting the freedom of expression in the manner spelled out by the impugned Rules,” he said in a sworn statement. 

Mr Ombati said although the rules have far-reaching implications for the forthcoming presidential elections, there was no public participation before they were published.

The lawyer says no views were taken from the three categories of people likely to be affected by the Rules, including the presidential candidates, advocates and the general public.

While releasing the verdict on the Building Bridges Initiative (BBI) case, Justice Koome singled out former LSK presidents Nelson Havi and Ahmednasir Abdullahi and lawyer Esther Ang’awa for making comments while the case was pending judgment. 

He warned that future breaches will attract penalties, including being cited for contempt of the court. The new rules have buttressed what the CJ said stating that any violation will have consequences.

Mr Ombati says the rules also limit the freedom of the media, yet the government is prohibited from exercising control or interfering with any person broadcasting, producing, or circulating publications or information by any medium. 

“By dint of the same right, the state is prohibited from penalizing any person for any opinion or view or the content of any broadcast, publication or dissemination,” he said.