Africa-Press – Kenya. Chief Justice Martha Koome has lost a bid to stop lawyers and litigants in a presidential petition from speaking about it until it’s determined.
The High Court quashed the Supreme Court Presidential Election Petition Rules 2022, which had gagged them from commenting on the case when it’s still in court.
Justice Mugure Thande ruled that the rules issued by Koome are unconstitutional for lack of public participation.
“A declaration be and is hereby issued, that, the Supreme Court (Presidential Election Petition) (Amendment) Rules, 2022 are not a statutory instrument within the meaning of the Statutory Instruments Act,” the court ruled.
Thande also faulted the rules saying they were unconstitutional for usurping the legislative power of Parliament.
She said that while it is accepted that the Supreme Court should be given the leeway and space to exercise the powers conferred upon it by the Constitution, such power must be exercised within the four corners of the Constitution.
“I find that in making the impugned rules, which contain a penal provision that is enforceable by the Court, the Supreme Court went beyond its authority and usurped the law-making role of Parliament,” the court ruled.
The court said Article 94(1) provides that legislative authority is derived from the people of Kenya and is vested in and exercised by Parliament at the national level.
“It is only Parliament that has the power to make provision and has the force of law. Any other person or body may only do so under authority of the Constitution or statute,” the court ruled.
Thande said that the impugned rules purport to make provision that has the force of law and enforceable by the court through penal provisions.
“To this extent, I find that the Supreme Court went overboard. Such provision can only be made by Parliament or with its approval. More so because the provision has the effect of taking away rights,” the court said.
The rules forbid litigants, their advocates and advocates’ agents, to during presidential petition proceedings, express their opinion on merit, demerit or to predict the outcome of the petition in any manner that would prejudice or impede court proceedings.
Sub-rule (5) of the rules then proceeds to declare that any breach of sub-rule (4) shall amount to contempt of court under the Act and the Rules made thereunder
Thande further declined to issue a stay of her judgement to Koome who had asked the court to grant them stay pending appeal.
In the case, lawyer Omwanza Ombati had challenged the ruled issued by Koome saying they were illegal.
He wanted the court to stop any further implementation of said rules saying they manifest unconstitutionality, vagueness, unreasonableness, irrationality and unlawfulness.
Ombati further argued that the said rules were formed against fair administrative action as they were birthed on the grounds of irrationality, illegality, unreasonableness, disproportionality and oppressiveness.
(Edited by Bilha Makokha)
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