In this legal analysis, ARTICLE 19 examines the Kenyan Contempt of Court Bill, 2013 (the Bill) from the perspective of international human rights law and standards on freedom of expression, as well as comparative approaches to contempt of court.
The analysis aims to promote the adoption of legislation that both safeguards the judiciary from undue interference and allows key actors, in particular the media, to hold the judiciary to account.
ARTICLE 19 has serious concerns about the Bill and has made a series of recommendations so that its shortfalls may be appropriately addressed. In particular, we are concerned that:
- If adopted, a number of terms which expand the types of expressions caught by the proposed legislation will undermine the right to freedom of expression in Kenya. Notably, references to terms such as the “dignity” of the court (which is protected), acts which “tend to interfere with the course of justice” (for which there is strict liability) and “temperate language” (which needs to be employed for reliance on certain defences) should be removed from the Bill.
- “Scandalizing” the court, a judge or judicial officer should not be deemed to constitute contempt of court.
- The threshold test for the application of the strict liability for contempt by publication – “the creation of a risk that will impede or prejudice the course of justice” – is too low and does not meet international and comparative standards.
- The “public interest” defence to contempt of court is curtailed.
- The provision on the protection of journalistic sources is limited and requires elaboration.
- The regime of penalties makes no distinction between the powers of the superior and subordinate courts.
We remain open to engaging with parliamentarians and stakeholders in ensuring that the best possible version of the Bill is ultimately adopted.
Summary of recommendations
- The Bill should state that it is for an Act of Parliament “to amend the law relating to contempt of court and related matters.” One of the “overriding objectives” of the Bill (Section 3 a)) should be to “uphold the authority and impartiality of the court.” Further, Section 3 should state that the objectives of the legislation include the following: to “ensure the public’s right to receive information and ideas about the administration of justice”; and to “safeguard media coverage of the administration of justice;”
- The reference to “dignity” in section 4(1)(b) should be replaced with “impartiality;”
- Section 5 should include a provision stating that its provisions might only be used in exceptional circumstances to interfere with the freedom of expression of counsel and should in no circumstances be used to restrict them in their submission of arguments which they consider to be reasonably arguable;
- Section 8(2)(a) should be deleted. Publications and other expressions that “scandalize or tends to scandalize the court” should not be deemed to constitute contempt of court or any other offence. The reference to “scandalizing a judge [or] judicial officer” in section 8(3) should be removed;
- References to “temperate language” should be removed from Sections 9(a), (b) and (f). “Temperate language” should not be used as a criterion for conduct which will not be considered as contempt of court. Further, Section 9(c) should not require that a publication is a “substantially accurate report” but state that it simply needs to have an “accurate factual basis” in order for it to have a defence from an allegation of contempt;
- Reference to conduct that “tends to interfere with …” should be deleted from section 10(1) and 13(1);
- Section 11(1)(a) should indicate that the strict liability rule applies to publications only and where the publication creates a “substantial risk that the course of justice in relation to the proceedings in question will be seriously impeded or prejudiced;”
- Section 13(5) should be deleted;
- Section 18 should simply state that a “publication as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as contempt of court under the strict liability rule;”
- Section 14(1) should state it is a defence to publish a report with an “accurate factual basis”, rather than an “accurate report;”
- Section 14(2) should state that the threshold for a court to order the postponement of a publication is “a substantial risk of serious prejudice to the administration of justice;”
- The Bill should consider acknowledging the use of internet-enabled devices at court through provisions that respect with jurors’ rights to freedom of expression as well as privacy;
- Section 20 should be amended to indicate that a person is not guilty of contempt of court for refusing to disclose a source of information unless (a) the identity of the source is necessary for the investigation or prosecution of a serious crime, or the defence of a person accused of a criminal offence; (b) the information or similar information leading to the same result cannot be obtained elsewhere; (c) the public interest in disclosure outweighs the harm to freedom of expression; and (d) disclosure has been ordered by a court, after a full hearing;
- Section 27(c) should be deleted in its entirety;
- The regime of penalties in sections 27 and 28 should be amended to indicate that the superior courts are enabled to impose the maximum penalties for contempt of court of six months imprisonment and/or a fine not exceeding 200,000 shillings and the inferior courts are enabled to impose a prison sentence of up to one month and a fine not exceeding 250,00 shillings. Also, Sections 27 and 28 should provide that, insofar as they apply to corporate entities, media organisations should only be punished with a fine, unless the circumstances are exceptional.