No words affirm the authority of the court over lawyers like the words “sit down”. It’s actually a court room version of “shut up” and it is used by magistrates and judges to tell lawyers that they have heard enough, and had enough, and were now getting irritated. It is very humbling to be sat down by a magistrate or a judge and can sometimes be very humiliating.
It is not a common event to see lawyers being shut down by judicial officers largely because we avoid it. Despite our gladiator stances in court rooms and maverick posturing in public outside the court, we lawyers know the power of judicial officers and the considerable latitude they have over us when we are conducting cases before them.
Even the most hot headed legal counsel will be as meek as a mouse in the court room.
But this timidity of lawyers before judges is not just about power and authority. It’s about tradition. It is a culture of the legal profession to display the outmost respect to judicial officers regardless of one’s opinion about their character. It is for instance expected that if a lawyer were to meet a judge walking the corridor in the court house, the lawyer would stand aside and yield the corridor to the judge to, and salute them with an affected genuflection executed by a light nod of the head at the judge.
We have many other such traditional courtesies that are meant to cultivate and maintain the highest respect by lawyers towards judicial officers. We must bow at the judge or magistrate when they enter and leave the court room; and when we are leaving them in the court room. We must stand up when being spoken to and we cannot interrupt them. We only speak when allowed to.
We must dress in accordance with rules of etiquette in court and can be expelled from the court room for donning any attire considered inappropriate by the judge or magistrate. This includes dressing in flashy colours. And when you are the last lawyer in the courtroom, you must ask the judge or magistrate for permission to be excused. You do not simply walk out. Tradition requires you to wait until the court session is called to a close and the judge or magistrate rises and leaves.
The everyday life of a lawyer practising in court is one of humility and subordination.
But there is another reason why lawyers are required to exalt the highest level of respect to courts and judicial officers. The judiciary and the legal profession are the two institutions that protect the citizens’ rights and they must therefore always work in tandem to fulfill their mandate. I will borrow the words of The Rt. Hon. Raila Odinga in the foreword to my book, “The Black Bar: Corruption and political intrigues within Kenya’s legal fraternity”, to capture this relationship.
“The correlation between the Rule of Law and the health of the legal profession is undeniable. Lawyers are first and foremost the “Knights of the Rule of Law”. They are commissioned to fight in the battles where bad people attempt to oust the law and rule by their passions; where legal processes, procedures and institutions are being knelt on by bad men, or manipulated to assist in the pursuit of nefarious objectives.
“On a wider perspective, the legal profession is the nursery in which the Judiciary is raised. Judges, on their part, are the custodians of the Rule of Law. It is their mandate to superintend the law and ensure that it always is effective in creating and maintaining a society where no person is above the law and that all persons enjoy equal protection of the Law.
“The first step at establishing and protecting the Rule of Law must therefore be addressing the health of the legal profession. There can be no Rule of Law without a healthy legal profession. Without lawyers fighting against those who promote bad governance and judges pro-actively ensuring that those battles are won, the citizen is left defenseless and at the tender mercies of unscrupulous politicians and merchants who ransack taxes and other public resources.”
Whatever fights we as lawyers engage in as “Knights of the rule of law”, we cannot be successful without a Judiciary that ensures those fights are won. We therefor are enjoined to promote the authority of the Judiciary which lies solely on the respect that judges and magistrates receive from the public and from the other arms of government. We must more than everybody else be at the forefront of showing that respect.
However, promoting the respect of the Judiciary involves keeping judges and magistrates accountable through robust criticism. Judges and magistrates are human beings entrusted with public mandates and are liable to abuse their power in the same manner as any public officer. Lawyers stand at a very exclusive position to identify these excesses and to expose them.
To play their role of keeping the judiciary to account effectively, lawyers require great latitude in their critism and it has come to be accepted that courts must allow criticism that is couched in language that is not altogether decent.
But there is a line, and sometimes it is crossed. Malicious attacks are often made against courts, judges and magistrates and passed off as criticism. When that happens, courts have been empowered, initially by common law as part of their inherent powers but nowadays increasingly by statute, to punish such criticism as a contempt of the court.
The powers of courts to punish for contempt are undoubtedly some of the most draconian penal provisions in law. Not only are the proceedings quite summary in process but the court sits in judgment in its own cause.
Though the powers are meant exclusively to protect the authority of the court, there are many instances where the emotions of the judges cannot be ignored. To insult a judge to the face in open court not only undermines the authority of the court but does hurt the feelings of the judge.
In every legal jurisdiction, contempt of court charges have been viewed with suspicion and in many instances, judges have been accused of using their powers to be vindictive or, in least, have been accused of having thin skins.
Every jurisdiction therefor comes up with rules governing the latitude lawyers and the general public have in criticising courts and judicial officers and these rules are often an indication of the integrity of the judiciary in those jurisdictions. Judiciaries that consider themselves above reproach, and enjoy a high level of comfort from the legal profession and the general public, are very liberal in this regard and allow even rude statements against them to stand.
The latitude that courts give to criticism is also an indication of the democratic spaces available in those jurisdictions as it reflects how much respect courts give to the freedom of expression. In the United States of America for instance, where freedom of expression is considered sacrosanct, courts have added a further consideration in determining issues of contempt and heavily weigh in on outmost restraint when criticized, however harshly.
But when it comes to lawyers, that latitude becomes restricted. Lawyers are by virtue of being the members of a profession considered to have consented to certain restrictions of their rights so as to adhere to rules of conduct imposed on them by the profession. While freedom of expression may grant a citizen a very open license when criticising judges and magistrates, rules of professional conduct can restrict that right when it comes to lawyers criticising courts. Charges of professional misconduct will nail the lawyer where a charge of contempt of court may not succeed.
While freedom of expression could allow a citizen to refer to a decision of the court as foolish, that could get a lawyer into a lot of trouble.
In addressing the special rules that apply to lawyers as opposed to members of the public when criticising judges and magistrates, the United States Supreme Court, in a decision it made in 1871, said:
“Attorneys take upon themselves, when they are admitted to the bar, not merely to be obedient to the Constitution and laws, but to maintain at all times the respect due to courts of justice and judicial officers. This obligation is not discharged by merely observing the rules of courteous demeanor in open court, but it includes abstaining out of court from all insulting language and offensive conduct toward the judges personally for their judicial acts.”
But despite the firm position taken by the highest court in America, courts in that country have exhibited a lot of restraint when provoked by lawyers. No better case showed this restraint than that of a New York attorney by the name Martin Erdmann. In an interview he gave in 1971 to a magazine following a case he was handling, he lambasted the appeal court of New York saying that the judges of appeal were “whores who became madams”.
He was promptly found guilty of professional misconduct and publicly censured. He appealed and strangely, the Court of Appeals of New York acquitted him saying:
“Without more, isolated instances of disrespect for the law, Judges and courts expressed by vulgar and insulting words or other incivility, uttered, written or committed outside the precincts of a court are not subject to professional discipline. Nor is the matter substantially altered if there is hyperbole expressed in the impoverished vocabulary of the street.”
That restraint however seems to apply in cases of generalised criticism but not specific attacks on judges particular concerning decisions they have made. Rule 8.2 of the Model Rules of Professional Conduct issued by the American Bar Association states that:
“A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”
In such instances, discipline has been swift and harsh with punishments ranging from public censure, suspension to outright disbarment.
Surprisingly, the history of contempt of court cases in Kenya seem to have followed the same trend. Generalised attacks on judges and magistrates seem to be well tolerated even where couched in very harsh terms. I personally got away with very harsh statements in my book “The Black Bar” when i wrote the following .
“The government’s closest ally in oppressing the people of Kenya, and in frustrating the Black Bar, was the Judiciary. Both through utter incompetence and willful subservience of the executive, judges and magistrates in Kenya twisted the law in support of the government and reduced the judiciary into an ineffective guard of the fundamental liberties of the people. It is a fair summary of the history of the judiciary to state that it totally failed to discharge the obligation that was placed upon it by the 1963 Independence Constitution.”
That was the beginning of my Chapter on the Judiciary. I ended the Chapter as follows:
“It is only for brief moments that the judiciary wakes up and does an honest job. The rest of the time the judges are busy lazing around and taking bribes. Unashamedly. After we were called to the Bar, one of our classmates didn’t take a month finding a judge who could share booty with men charged with robbery with violence in exchange for their freedom. The clean judges at the Kenyan Judiciary could sit comfortably in a family car.”
Little restraint has met those who have made specific attacks on specific judges. In 1981, Nobel laureate Wangari Mathaai was jailed for six months for criticising the judge who heard her divorce case and stating that the only way the judge could have found her guilty of adultery was either due to corruption or incompetence.
In 1994, David Makali, a journalist, and GBM Kariuki, a lawyer, were sentenced to six months in jail, with an option to pay a Kshs. 500,000 fine, for describing a judgment of the Court of Appeal as “judicial lynching and blackmail tailored to meet the political expedience of the Executive”.
And in 1999, publisher Tony Gachoka was jailed for six months for accusing Chief Justice Zachaeus Chesoni of taking a 30 million shillings bribe.
This history puts perspective to how the recent decision by the Supreme Court barring Senior Counsel Ahmednassir Abdullahi from having any audience before it has evolved. On 18th January 2024, the Registrar of the Supreme Court wrote to Senior Counsel Ahmednassir Abdullahi and told him that arising from his ‘relentless and unabashed campaign in the broadcast, print and social media aimed at scandalizing, ridiculing and outrightly denigrating the Supreme Court through social media posts, media interviews and write-ups, and accusing the Court either in its constitutive persona, or individual membership, of acts of corruption, incompetence and outright bribery’, it had been decided by the judges that the Senior Counsel shall ‘henceforth and from the date of the Communication have no audience before the Court, either by himself, through an employee of his law firm, or any other person holding his brief, or acting pursuant to his instructions.’
The letter continued:
“The insensitivity and abusive arrogance you continue to display against the Court in your frequent media postings, cannot be said to be animated by your quest for Justice. Ironically, even as you persist in your attacks against the Court, you do not see any contradiction in filing cases in the very institution and appearing before the very Judges you daily accuse of corruption and incompetence.”
Senior Counsel Ahmednassir has never shied away from speaking his mind about the state of the Judiciary. Throughout his career, he has lambasted the Judiciary for many reasons and in terms many would consider unsavoury. No one has ever suggested that he should be censured and many a judge have been at the sharpened end of his criticism.
Indeed, the Senior Counsel had for many years leveled grievous accusations of corruption, incompetence and impartiality against judges of the Supreme Court. In one instance, where the court had overturned a victory the Senior Counsel had secured at the Court of Appeal, he suggested that the judges had been bribed and suggested that it would have been fair if all parties had been given a chance to bid for the court decision, now that justice was for sale.
“The problem with corruption in the Kenyan Supreme Court as aptly shown by the judgment of Wajir gubernatorial petition is that corruption is single sourced and is not open and competitive. My client was not invited to put his bid and some judges took money from only one party”, he wrote in a tweet.
About a year later, again after he had lost another case at the Supreme Court, he accused the court of “behaving like headless chicken”, and “exercising illegitimate political power “. He accused the court of being biased against his client, being a surrogate of the State and being a “jurisprudential train wreck” that “churns out counterfeit decisions”.
He has also categorically alleged that a senior Supreme Court judge had taken a Kshs. 220 Million bribe and also once mentioned a Supreme Court judge by name and accused him of taking a Kshs. 75 million payoff.
All was well when the criticism was general but when the Senior Counsel begun specific attack regarding specific judges in specific cases, the line was crossed. Not even in America is freedom of expression upheld in instances where the integrity of individual judges in their work as trial judges is attacked without evidence of wrongdoing.
What is not clear is why the court waited this long to act. Some opinions suggest that no one wanted to call the senior counsel’s bluff. In fact, the one time when the Chief Justice, the Honorable Maraga, challenged him to place evidence before the Judicial Service Commission respecting his allegations, he filed a complaint against four Supreme Court judges. However, nothing has been heard about that since and even as he was being debarred, he did not talk about the matter of his petition to the Commission.
Other opinions say that the court has over the years shown restraint, and there is a good tradition of that even in the Kenya Judiciary, but that once accusations started touching on the integrity of judges personally regarding their handling of specific cases, some form of disciplinary action was imminent.
Indeed, in March 2019, the Supreme Court had publicly rebuked the Senior Counsel and threatened him with more severe disciplinary action saying that “willful insults directed at a judge during trial is prohibited in a civilized legal process”.
What even the critics of the Senior Counsel support him on is that he was entitled to due process. He has a right to be heard. It is the oldest and most essential requirement of the rule of law that no man should face peril to his life, liberty or property without him first being given a chance to say his piece. Maybe he would have apologised, though that is very unlikely as he quickly accepted his disbarment and wore it as “a badge of honour”.
But assuming that were such a possibility, it could have gone a long way in mitigating his punishment.
But I think that the Supreme Court knew that if they turn the process into a trial of the senior counsel, and thereupon convict him, they would literally be whipping him up “Mount Freedom’ and crucifying him at the peak. The result would be Saint Ahmednassir, a constitutional martyr.
And even with that result, the Court could not escape the considerable political connections that the senior counsel has with which he can reverse any sentence passed on him in a contempt of court trial. Tony Gachoka, after spending a month in jail, convicted by no less than six judges of the Court of Appeal, was released after President Daniel Arap Moi issued a pardon against his conviction by the six senior judges.
What I think is that the court used some devilish cunning to corner the senior counsel. Each judge whose integrity the senior counsel has ever questioned decided to disqualifying themselves from listening to any case where he acted as counsel. I understood them to be saying that since the senior counsel thinks that they are corrupt, they can’t trust they can be impartial in a case he is representing and that in all fairness to his clients, they must rescue themselves from hearing the case so long as he is prosecuting or defending.
The question now is whether there is any law by which one can force a judge to sit in judgment in a case where they have expressed fear, based on sound reasons, that they may not be impartial.