Why the law on contempt of court matters

Unless you’ve been living under a rock (or you’re that visitor to Jerusalem), you probably know that doctors in Kenya are on strike.

I wholeheartedly support the doctors in their quest for better terms of service, more doctors, better facilities, research funding, well-stocked pharmacies etc. In short, better health care for us. And we must never pass up any chance to stick it to the Jubilee Government, which would rather tender for oxygen, mark up the price and register sham companies to supply the oxygen than pay the doctors.

Hell, I would even join in the demos (if only I had a lab coat and scrubs).  My goonship skills are…

barney stinson

BUT….

C’mon, there’s always a but. This is a BUT so big that it deserves its own soundtrack.

BUT…

The overall reaction to the contempt of court charges against the KMPDU officials and their subsequent sentencing reeks.

To be quite fair, the learned judge did not help matters in her obiter either…

I mean, if someone told me I stink of sewage when I’m fighting for YOUR [redacted] right to healthcare, best believe, I’d Hulk smash you.

hulk smash

BUT…

That’s not really the point.

As an officer of the court (yes, I’ve always wanted to introduce myself as such, and now I can, bite me) I’m appalled by the vitriolic nature of the attacks on the learned judge and our judicial system.

I could refer you to the Secret Barrister or the Barrister Blogger both of whom make this point better than I ever could.

Instead, I’ll tell you a story which hopefully will explain why the law on contempt of court matters.

Imagine you’ve paid for something.  For kickers, let’s make it some rare stuff, like Donald Trump’s first-ever toupee (not sure why anyone would want these goods but c’mon, you’re weird like that. And people should let other people enjoy things). You’ve paid for the goods. Now you’re just chilling for the goods like….

landscape-1435244224-pablo-escobar-narcos-netflix_2-656x447

The guy you bought your toupee from won’t bring your toupee. So you chill. And chill. And chill some more. If you’d chilled any further, you’d probably be a polar bear by now.

Still chilling for the goods...
Still chilling for the goods…

You’ve had enough of this [redacted] who won’t show you the goods. So you make the call for this guy to bring your goods. You can’t ask for the money because this is some rare stuff. It’s priceless. YOU WANT THESE GOODS AND NO AMOUNT OF MONEY CAN COMPENSATE FOR THESE GOODS.

The seller’s default response is…

Goods? What goods?
Goods? What goods?

To which you throw a tantrum at your booth after making the call.

rihanna

Since you’re that person with immense faith in the Kenyan judicial system, after engaging a lawyer (like yours truly), the back and forth of nasty demand letters and you decide to sue this [redacted] for specific performance, because as I mentioned, these goods are rare. This [redacted] better have my goods.

rihanna money

Y’all go to court. Of course you win, because you paid this [redacted] and he has your goods. But his guy believes that court orders are pieces of paper that could be used at Kamaa’s butchery. Or even worse, this is what this guy REALLY THINKS of you and the judgment you just obtained.

piss

So what do you do?

You make an application that this person be punished for contempt of court, because this guy thinks that the court is weak and can’t tell him nothing. You know, he thinks he’s Kanye.

The law of contempt of court safeguards your right to enjoy the fruits of your judgment. It builds confidence and faith in the judicial system, that come whatever may, it can defend itself against such brazen defiance from the toupee guy.

Fortunately, our President took a break from his very busy schedule of commissioning non-motorised projects (read footbridges) and assented to the Contempt of Court Act, 2016 which incidentally, commences today (13th January, 2017). Section 3 lists the aims of the Act, and because they’re important, I’ll list them: 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 maintain public confidence in the administration of justice as administered by court.

I am a vocal supporter of this move, because under what used to happen was that courts in Kenya had to find out what the procedure of punishing contempt of court was in the United Kingdom and apply it, pursuant to section 5 of the Judicature Act (which has thankfully repealed by the new Act).

Basically, it was like renvoi (and if you’ve done conflict of laws, you know how messed up that can get). Now imagine how the courts had to deal every time someone disobeys a court order.

Jackie-Chan-WTF

Ndolo J gave the reasons why court punishes for contempt in Teachers Service Commission v Kenya National Union of Teachers & 2 others [2013] eKLR:-

“The reason why courts will punish for contempt of court then is to safeguard the rule of law which is fundamental in the administration of justice. It has nothing to do with the integrity of the judiciary or the court or even the personal ego of the presiding judge. Neither is it about placating the applicant who moves the court by taking out contempt proceedings. It is about preserving and safeguarding the rule of law. A court order is not a mere suggestion or an opinion or a point of view. It is a directive that is issued after much thought and with circumspection. It must therefore be complied with and it is in the interest of every person that this remains the case. To see it any other way is to open the door to chaos and anarchy and this Court will not be the one to open that door. If one is dissatisfied with an order of the court, the avenues for challenging it are also set out in the law. Defiance is not an option.”

Section 4 of the Act categorises contempt of court into either:

  1. Civil: willful disobedience of any judgment, decree, direction, order, or other process of a court or willful breach of an undertaking given to a court) or;
  2. Criminal: publication, whether by words, spoken or written, by signs, visible representation, or otherwise, which scandalizes or tends to scandalize, or lowers or tends to lower the judicial authority or dignity of the court; prejudices or interferes or tends to interfere with, the due course of any judicial proceeding; or, interferes or tends to interfere with, or obstructs or tends to obstruct the administration of justice.

Under Sections 10 and 11, criminal contempt is a strict liability crime (i.e. intention is immaterial) only where the publication relates to active proceedings where there is a substantial risk that the course of justice in the proceedings will be seriously impeded or prejudiced.

There are defences to criminal contempt under section 9. However, this is one of the instances where the burden of proof shifts from the prosecution to you i.e. you have to prove that whatever bad things you said about the judge/judicial system were fair comment, fair and accurate reporting of judicial proceedings and a list of other things that would push the word count of this blog post.

Section 13 also has a defence for innocent publication (I suppose those RTs will fall here, I guess, I mean the Act is brand new and starts operating today, so that a reasonable guess, I think)

Back to the KMPDU case, were it to be decided any time after today (because laws do not apply retrospectively). The union officials would be guilty of civil contempt because they went on with the strike even after being told by the court not to do it.

Here’s the important part: the twitter commentators who were saying some very nasty things about the judge, impugning her character, saying she’s a government mole etc would be guilty of criminal contempt. Issa serious crime you people. Keep your twitter fingers away. You’ve been warned.

So how do courts punish for contempt?

Section 27 of the Act formally establishes the offence of contempt of court. It lists the acts that would qualify as contempt of court (most of these are contempt in the face of the court, like your cellphone ringing in court, stabbing the judge with a screwdriver, like this guy, refusing to be sworn in, firing your employee after snitching on your crooked self in court) and so on.

First, contempt of court proceedings are instituted under section 25 in the form of a criminal trial within a trial. There is a formal written charge. One is afforded the right to a defence. There’s even a right to a revision (section 31), review (section 32) or an appeal (purely on points of law under section 33). It’s a serious thing and what’s more, there’s due process to safeguard the person who’s been a [redacted] to the court. Imagine that.

So the court has found you guilty of contempt of court? What next?

  1. Jail

Section 28 prescribes imprisonment for a term not exceeding six months. It also provides for committal to civil jail for civil contempt offenders for the same term (maximum 6 months) if the fine prescribed will not meet the ends of justice (probably someone who won’t feel the pinch of a fine).

Section 29 also extends the jail term to officers of a company which has been found guilty of contempt (unless they can prove they took reasonable and diligent steps to avoid the contempt or to purge it altogether). They are committed to civil jail.

  1. Fines

Fines under the Act should not exceed Kshs 200,000.

Under section 30, fines seem to be the punishment of choice for government officials. It is preceded by a notice to show cause (for 30 days) as to why contempt of proceedings should not be commenced which is served on the accounting officer (of the State organ) and the Attorney-General.

  1. Refuse to proceed

The courts will simply refuse to hear you until you “purge your contempt”. In simpler terms, this means you take your L like a champ, issue a grovelling apology to the court and promise henceforth to be a good boy/girl, under section 28(4).

This was as Lord Denning said in Hadkinson v Hadkinson [1952] 2 All ER 567

“Applying this principle I am of opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues, it impedes the course of justice in the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.”

Lord Denning MR was Dat Guy before Dat Guy became a thing.
Lord Denning MR was Dat Guy before Dat Guy became a thing.

 Which is the point the learned judge was making in the KMPDU case. It could have been done sans the “Y’all stink like sewage” bit though…

 

Doctors, tuko pamoja in the #LipaKamaTender fight. But please, let’s follow court orders, donge?

Martin Maitha

Mr. Maitha is an Advocate of the High Court of Kenya. He specialises in legal research and writing, and has a keen interest in corporate, commercial, media and ICT law.

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About Martin Maitha 16 Articles
Mr. Maitha is an Advocate of the High Court of Kenya. He specialises in legal research and writing, and has a keen interest in corporate, commercial, media and ICT law.