Authored By: Felicia Jepleting
Kenyatta University
ABSTRACT
The Judiciary is vested with authority which is derived from the supreme law of the land, the Constitution. This then requires respect from all parties including judicial officers, litigants and advocates.Advocates being officers of the court bear primary role in upholding this.However,professional misconduct particularly contempt of court has recently been observed among Kenyan advocates. This pattern creates a negative perception on the legal profession and erodes public trust in the Judiciary. This study aims to analyse the consequences of such conduct and make proposals for practical recommendations. This research employs a desktop research due to limited resources and timelines.
1.0 INTRODUCTION
Contempt of court is defined as any act done or writing published which is calculated to bring a court or judge into contempt or lower his authority or to interfere with the due course of justice or the lawful process of the court is contempt of court.1Any individual can be found to be in contempt of the court as so long their actions prove intent to cause interferences with how justice is being administered and this could be directed at witnesses, judges, magistrates or others.The court itself has powers to punish for contempt in order to safeguard the integrity of justice.This position was highlighted in the case of Refrigeration and Kitchen Utensils Ltd v Gulabchand Popatlal Shah & Another2 where the court stated that authority and dignity of courts are upheld only when there is maintenance of rule of law and good order.The court should not shy away from dealing with contemnors.
An advocate is a trained professional who has been trained, admitted to the bar and licensed to practice law in different capacities including to represent a client during litigation, mediation and also arbitration.3Being professionals,advocates are expected to perform their duties in an ethical manner.However,this is not the case for most advocates in Kenya.Conduct of some of them in court or out of court interefere with administration of justice eroding public confidence in the legal profession.
Advocates are increasingly disobeying court orders, especially when it comes to not paying clients the full sum awarded as costs. Some of these advocates even face severe consequences. Additionally, some advocates have publicly accused Supreme Court judges of corruption without supporting evidence, which has led to their suspension or prohibition from appearing in court. Such acts not only compromise the integrity of the legal system but also harm clients, who may have less access to justice as a result.
This legal article examines the insufficiency of contempt of court laws to address advocate’s misconduct.It argues that there is a pressing need to have more thorough disciplinary assesssments including integrity oversight given the role of advocates as officers of the court.
2.0 RESEARCH METHODOLOGY
This legal research employs desktop study which thoroughly examines and critique the existing legal and policy frameworks governing contempt of court.. This method is the most appropriate because it employs a doctrinal approach which is very practical and efficient for gathering and analyzing the necessary legal materials.
The research has utilized published articles from various online databases like Google Scholar. In addition to academic journals, this study also draws upon court cases to enhance the depth and accuracy of the analysis.
Moreover, the study employs content analysis to interpret qualitative data from legal texts, and comparative analysis to examine how other jurisdictions address contempt of court especially when it involves conduct of lawyers.This comparative element enriches the research by providing alternative models that could inform legal and policy reform in Kenya.
However, the methodology acknowledges the limitations inherent in desktop research, such as lack of access to unpublished data or field interviews.
3.0 LEGAL FRAMEWORK
The Constitution of Kenya,2010
The Constitution vests judicial authority to the courts and tribunals which demands respect for the rule of law.4Judges being state officers are required to exercise their authority in a manner that promotes public confidence and integrity to the office.5Therefore, advocates as officers of the court are required to ensure such honor and dignity is brought to the court.
Integrity, accountability and rule of law are some of the national values and principles enshrined in the constitution6. Advocates are bound to exercise them while addressing the court.
In Kenya everyone has a right to freedom of speech which includes conveying information.7However, this right is not absolute as it does not extend to hate speech.
Judicature Act
It gives the Supreme Court, Court of Appeal and High Court(Superior courts) the power to punish for contempt as it is possessed by the High Court in England8.
Contempt of Court Act
This is the primary statutory provision that governs contempt of court in Kenya. It defines Contempt of Court by categorizing it into;
a) Civil Contempt which means willfully disobeying court’s judgment, decree or order.9
b) Criminal Contempt which means publication either by being spoken or in written form which tend to lower the dignity of the court or interfere with due course of any judicial proceeding.10
This Act has also broadened the jurisdictions of courts having power to punish for contempt by including the subordinate courts.11
Advocates Act
Every advocate is an officer of the court and is subject to the disciplinary tribunal.The Act also establishes the Advocates(Practice)Rules which regulates their conduct.
4.0 JUDICIAL INTERPRETATION AND IMPORTANT CASES
There are a number of cases where courts have tried to define, identify the standard of proof and also clarify the essence of punishing for contempt of court. Below are some of these cases;
Isaac Wanjohi v Rosaline Macharia12–In this case the judge had a different opinion on the requirement for an application for leave before proceeding with an application for committal of contempt of court. To him it was not a strict requirement and so no leave would ordinarily be necessary to commence committal proceedings in every case.However,this decision has not received widespread acceptance.
Re Bamblevale Limited13–Lord Denning stated that contempt of court is an offence which is criminal in nature and one can actually be imprisoned.It has to be proved beyond reasonable doubt.
Gatharia karanja Muithika and others v Baharini Farm Limited14–The Court of Appeal differed with the views of Lord Denning stating that the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities.
From the two contrasting decisions, the standard of proof is unascertainable.
John Mugo Gachuki v New Nyamakima Co. Ltd15–It was held that ‘it is regrettable that, some fifty years after independence, our court’s process for punishing contempt is better than the English High Court of Justice’s. It is disheartening that the organizations tasked with revising and creating our laws have failed to see how urgent it is to pass our own legislation pertaining to such a crucial component of the Rule of Law. Given this, our role is to interpret the law as it has been enacted rather than to enact it.’
Christine Wangari Chege v Elizabeth Wanjiru Evans & Others16– In this case the Court went through the procedure of commencing contempt proceedings in England and found that leave was irrelevant for civil contempt.
5.0 CRITICAL ANALYSIS
Challenges
Ambiguity in Legal Framework
The Judicature Act confers powers to the superior courts to punish for contempt.In addition it imports the principles of common law from England which are not well defined to conform with Kenyan laws.On the other hand,The Contempt of Court Act gives authority to subordinate courts to also punish for contempt.This creates inconsistency of laws and uncertainity when it come sto which law should be followed.
Overlap between Contempt and Professional Misconduct.
There exists a very thin line in determining whether an advocate’s actions constitute a professional misconduct which is punishable by being summoned to appear before the Advocates Disciplinary Tribunal or contempt which is handled by judges of the Court.Some like making public statements against the courts falls in both jurisdictions which may bring confusion.
Lack of clear standards
In all the laws that relate to contempt of advocates,there are no specific guidelines that highlight which behavior qualifies as contempt and what reasonable sanctions will be deemed appropriate.This leaves a wide discretion to judges who might pronounce severe punishment especially if the statements were directed at them.
Balancing Judicial Power and Freedom of Speech
Advocates being officers of the court are required to respect it in order to uphold its dignity.They are also entitled to freedom of speech as expressed under Article 33 of Constitution of Kenya,2010.Issues arise when advocates come out publicly to criticise corrupt judges which becomes third to tell if it is hate speech or legitimate critique.If such is not restricted,it may erode public trust in the Judiciary and the legal profession.
Enforcement Difficulties
There is weak enforcement especially when courts make orders against prominent advocates or law firms.The Law Society of Kenya which constitutes the Advocates Disciplinary Tribunal is often influenced by politics which creates impunity as unethical advocates continue to practise.
Comparative Analysis
Discipline System of Lawyers in the United States
The United States already has an intact and working disciplinary system. The ABA Model Rules for Lawyer Disciplinary Enforcement (“ABA Model Rules”) clearly defines what an effective discipline is.In order to address cases of professional misconduct, the American Bar Association (ABA) requires every state to set up a disciplinary agency with a statewide board in charge of selecting members of a hearing committee. Reciprocal discipline, which mandates that a lawyer disciplined in one state notify disciplinary bodies in all other jurisdictions where they are licensed, is a crucial component of this system. The lawyer and the disciplinary counsel are then given thirty days by the court to explain why the same punishment shouldn’t be applied in the other jurisdiction. By establishing a connected disciplinary system that permits accountability across all jurisdictions, Kenya might profit from using a variant of the ABA’s reciprocal discipline system. In order to enable uniform disciplinary action in all Kenyan jurisdictions, a reciprocal mechanism allows the Law Society of Kenya and other judicial officers to be informed immediately when an advocate is disciplined for contempt or misconduct in one court. This could be advantageous for upholding public trust in the field, identifying professional integrity, and holding individuals accountable for misconduct.
Repercussions for the Justice System
Contempt of Court by advocates leads to delay in the legal process because at times the court will have delay a case in order to deal with the contemptuous behavior of an advocate.
Clients are denied access to justice especially when advocates are suspended or barred from practising.Such punishments infringe client’s constitutional right.
Contempt of court by advocates undermines public trust and legal professional integrity.
6.0 WAYFORWARD
In order to address the issues identified in this research,The most effective way is to consider the following recommendations;
- A specific statute should be enacted to codify all the laws relating to contempt to bring uniformity,clarity and modernize it by having specific provisions addressing advocates’ conduct.
- The Judiciary and the Law Society of Kenya should collaborate by having a liason committee to handle such cases in order to avoid conflicting decisions by the disciplinary tribunal and courts.
iii. Periodic ethical and integrity assessments should be introduced to boost public confidence.
- Practice directions should be developed to highlight the acceptable limits of speech regarding comments on judges’ conduct and their decisions.
- Mandatory professional ethics training which focus on respect for the Judiciary and courtroom ethics should be conducted
7.0 CONCLUSION
Contempt of court is a critical area of law particularly around ethical obligations of advocates. The existing laws remain fragmented and at times inconsistent. It is also important to strike a fair balance between the right of advocates to speak freely and the need to preserve the integrity of the court. By encouraging positive development of the law, advocates will be in a position to discharge their duties appropriately.Ultimately,judicial authority and ethical responsibility have to work side by side in ensuring public trust in administration of justice in Kenya.
8.0 BIBLIOGRAPHY
STATUTES
- Constitition of Kenya
- Judicature Act
- Contempt of Court Act
CASE LAWS
- Refrigeration and Kitchen Utensils Ltd v Gulabchand Popatlal Shah & Another(1990)
- Isaac Wanjohi v Rosaline Macharia(1995)
- Re Bamblevale Limited(1967)
- Gatharia karanja Muithika and others v Baharini Farm Limited(1985)
- John Mugo Gachuki v New Nyamakima Co. Ltd(2014)
- Christine Wangari Chege v Elizabeth Wanjiru Evans & Others(2014)
BOOKS
- Halsbury’s Laws of England.
1 Halsbury laws of England
2 Nairobi Court of Appeal Civil application No.39 of 1990
3 https://muthiiassociates.com/advocate-and-lawyer-in-kenya/
4 Article 159 of C.o.K,2010
5 Article 73(1)(a)(iv) of C.o.K,2010
6 Article 10 of C.o.K,2010
7 Article 33 of C.o.K,2010
8 Section 5(1) of Judicature Act
9 Section 4(1)(a) of Contempt of Court Act
10 Section 4(1)(b) of Contempt of Court Act
11 Section 6 of Contempt of Court Act
12 High Court Civil Case No. 450 of 1995
13 [1967] 3 All ER 1062
14 [1985] KECA 60 (KLR)
15 Civil Case No.456 of 2014
16 Civil Application No.233 of 2014
