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"id": 706499,
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"type": "speech",
"speaker_name": "Hon. Baiya",
"speaker_title": "",
"speaker": {
"id": 8,
"legal_name": "Peter Njoroge Baiya",
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"content": "Kenyan jurisdiction. The problem is that this approach to legislation by making reference to legislation in England does not take into account development of the law in the other jurisdictions. It is also not based on local jurisprudence, which we should basically be trying to develop. This made the law of contempt very complicated. It is true that courts would give very conflicting decisions. The fears were real that courts sought to use the law of contempt to over-protect themselves. We have notable cases showing that courts were mainly gagging opinions that were critical to them. In particular, we have the famous Court of Appeal Case where a journalist was sentenced to jail and yet on the substance of allegations, whether there was element of contempt, there was a substantial measure of truth. In fact, that was the feeling of many people. Therefore, to allow a situation where citizen’s legitimate criticism of the court is criminalised is to be incompatible with a society that seeks to uphold justice, democracy and the rule of law. I have seen that various provisions of the Bill, indeed, recognise that the overriding objective of the Bill is to protect and preserve the process of administration of justice, dignity of the court and in a manner that also upholds all the other democratic rights of the citizens. It safeguards against the attempt to gag fair and legitimate criticism even of the conduct of judicial officers, which conduct may be found wanting. The process has also been fairly simplified. Indeed, it still recognises the old principles of punishment for contempt. Most importantly, it invokes clear provisions of the Constitution such as Article 47 on the right to fair administrative procedure. It, therefore, safeguards against some of the abuses we have witnessed in terms of perceived or alleged contempt of court. Some magistrates unleash their powers upon citizens, sometimes innocent ones, leading to a situation where the court is seen as an instrument of coercion and oppression. This law is in keeping with the spirit of the new Constitution, which envisages that the power exercised by the Judiciary ultimately belongs to the people and should be exercised on their behalf and in accordance with the principles set out in the Constitution and the various laws. The judicial officer should not be seen to be venting any anger while acting in terms of exercising the power to punish for contempt. Indeed, the overriding concern is protection of the administration of justice, respect for the court system and ultimately clear demonstration that the conduct of the court is to enforce the rule of law in a democratic society. In view of this, I can see that there are some proposals that we will possibly require to review. This Bill is going through the First Reading. I am sure the law will be referred to the relevant Departmental Committee, which I believe is the Departmental Committee on Justice and Legal Affairs. Some of the draconian proposals on punishment should be reviewed in order for them to balance with the other constitutional rights granted to the Kenyan people. I am sure we shall look at this and, if need be, possibly, even bring the right amendment at the appropriate stage. When it comes to punishment, there is clear need for certainty and some balance, be it in criminal or civil contempt. The idea is not to inflict cruel consequences on the person accused of having committed contempt. Yet, again, it should be seen to be enhancing respect for the law and ensure that ultimately there is compliance. It is not about merely being seen to unleash punishment that in some cases has been noted to be completely incongruent with the offence alleged to have been committed. In this respect, it is quite clear that a second look by the National Assembly at the legislative proposal suggested, especially with regard to punishment, should be done to make sure that these punishments match the gravity of the offence. For instance, with regard to defences, indeed, the principle of strict liability is not a defence, namely, that you did not know you were in contempt. Whereas that may not be a defence, there is no reason as to why it should The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor."
}