The Contempt of Court Act, 2016 – A brief analysis

This article seeks to look at the law on contempt of court in Kenya by looking at the provisions in The Contempt of Court Act, No. 46 of 2016. The article will look at the provisions on this doctrine, cases that have been dealt with and ends with a conclusion on whether it has been accomplished its objectives or not.

The recent jailing of the officials of the Kenya Medical Practitioners and Dentists Union (KMPDU) for contempt of court led to an uproar from the public who viewed the court’s position to jail them as being wrong, arguing that many high ranking public officials had never been punished for this offence even when it was clear to the public that they were acting in contempt of court. To the public, this doctrine only applies against a few individuals and as such, it’s a tool to silence the masses. After spending a night in jail, the doctors were set free, and the court of appeal later on overturned the Industrial and Labor Court’s decision.

The doctrine was applied in Republic v Gachoka[1]where Mr. Gachoka was sentenced to the maximum six months imprisonment without the option of a fine and his publication fined 1 Million shillings. This suit arose out of an article published by Mr. Gachoka in The Post on Sunday alleging that the then Chief Justice Zaccheus Chesoni had received a bribe so that the courts would rule in favour of one of the persons implicated in the Goldenberg Scandal. Tony Gachoka was once again found guilty of contempt in 2015 alongside TV personality Jeff Koinange for commenting on a matter that was before court. The two were fined a whooping two million shillings which Mr. Gachoka was unable to pay and spent some time in jail. The High Court however, later suspended the case against the two.[2]

Black’s Law Dictionary defines it as the act of demeaning the court, preventing justice administration, or disobeying a sentence of the court, punishable by payment of fines or imprisonment. The Contempt of Court Act defines this doctrine under Section 4 to include the following:

  1. a) civil contempt which means willful disobedience of any judgment, decree, direction, order, or other process of a court or willful breach of an undertaking given to a court;
    b) Criminal contempt which means the publication, whether by words, spoken or written, by signs, visible representation, or otherwise, of any matters or the doing of any other act which –
    i) Scandalizes or tends to scandalize, or lowers or tends to lower the judicial authority or dignity of the court;
    ii) Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or interferes or tends to interfere with, or
    iii) Obstructs or tends to obstruct the administration of justice.
  2. In any case not relating to civil or criminalproceedings as contemplated under subsection (1), an actthat is willfully committed to interfere, obstruct or interruptthe due process of the administration of justice in relationto any court, or to lower the authority of a court, or toscandalize a judge, judicial officer in relation to anyproceedings before the court, on any other mannerconstitutes contempt of court.

Contempt of Court proceedings are meant to uphold the dignity and authority of the court, ensure compliance with the directions of court, ensure the observance and respect of due process of law, preserve an effective and impartial system of justice and to maintain public confidence in the administration of justice as administered by court.[3] The punishment provided for by the Act is a fine not exceeding two hundred thousand shillings or imprisonment to a term not exceeding six months or to both.[4] Where a company is involved in contempt of court proceedings, the people in charge of the running of the company at the time of the proceedings shall be committed to civil jail.[5]

Some of the high ranking officials against whom no arrests were made or fines paid even after being found guilty of contempt of court include; Interior Cabinet Secretary Joseph Nkaissery who was found guilty of contempt by a Mombasa court for disobeying a court order stopping the destruction of a ship which was to be used as exhibit in a drugs-related case.[6] In December 2016, Interior Principal Secretary was likewise found guilty of contempt but nothing has been done ever since.

These are just a few examples that could be highlighted, and the trend is neither championing impartiality in the justice system nor maintaining public confidence in the administration of justice by the courts in the country. If anything, it is giving the public more reason to the public to lose faith in the judiciary and term it a tool for the have it in the country. The courts decision in the KMPDU case for instancedid not preserve the dignity of the court because the honorable judge had an option of fining the officials but went ahead to issue a one month jail term.Judicial officers and government officials ought to rise to the occasion and ensure that they uphold the rule of law and that the law is applied equally to everyone so as to win public confidence in the judiciary.

[1] Criminal Application No. Nai 4 of 1999

[2] Article 19, Kenya: Contempt of Court Proceedings Abused available at <https://eajournalistdefencenetwork.org/News-and-Highlights/Kenya-contempt-of-court-proceedings-abused.html> accessed on 27/2/2017 at 10:30PM

[3] Contempt of Court Act, Section 3

[4] Ibid, at Section 28(1)

[5] Ibid, Section 29(1)

[6] Ogemba, P. Senior Government Officials not jailed for Contempt of Court, Standard Digital available at <https://www.standardmedia.co.ke/mobile/article/2001229300/senior-government-officials-not-jailed-for-contempt-of-court> accessed on 28/2/2017 at 9:37 AM



ABOUT THE AUTHOR

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DEBORAH MULEMIAH

Deborah Mulemiah is currently a postgraduate diploma in Law at the Kenya School of Law. Passionate about law and literature.

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