By Javas Bigambo
No productive debate on this subject can escape reductionism. Kenyan legal space is brimming with liberal and rightfully reductionist debates following communication from the Supreme Court of Kenya, conveying the dismayingly unprecedented dastardly decision to deny audience to Senior Counsel Ahmednasir Abdullahi.
Law by its nature, constitutes rational sets of rules and measures handed down through regulated administrative procedures to meet the desirable ends of justice. Yet, in the convoluted pursuit of justice, courts have at times walked the slippery path or err, evidenced through mortal limitations manifested in numerous forms, whether compromise, emotions, graft or at times deficiency of jurisprudential philosophies.
From the pride of place that it occupies, the Supreme Court is a giant screen upon which jurisprudence and justice are projected. So, any decision from that court is consequential.
That is why there is serious need to critique and problematise the resolve of the Supreme Court. The axiological load of Kenya’s Supreme Court decision to bar Ahmednasir Abdulahi(SC) unavoidably invited liberal inquiry as to whether the apex court made the wrong decision, contravening the very tenets of justice for which the same court is supposed to stand for.
The Registrar of the Supreme Court Hon. L. M. Wachira conveyed the instructions of the entire seven-bench court indicating;
“I have been instructed by the Full Seven-Judge Bench of the Supreme Court of Kenya to address you as hereunder:
Over the years, you have relentlessly and unabashedly conducted a campaign in the broadcast, print and social media aimed at scandalizing, ridiculing and outrightly denigrating this Court. Through social media posts, media interviews and write-ups, you have accused the Court either in its constitutive persona, or individual membership, of acts of corruption, incompetence and outright bribery. This, you have done with reckless abandon, paying scant regard to the reputations of those who tirelessly serve on the Court in accordance with their Oath of Office.”
From the above, the consciously unrestrained collective bench unanimously arrived at the resolve to deny the Senior Counsel from appearing before it henceforward, adjudged on the basis of his haughty personal social media statements amounting to attacks against the institution of the Supreme Court and the individual judges, as asseverated, bringing them to untold disrepute. Ahmed Nassir and the Supreme Court have had a byzantine relationship, with diminishing regard for the other.
The Supreme Court of Kenya currently comprises Lady Justice Martha Koome – Chief Justice and President of the Supreme Court; Lady Justice Philomena Mwilu – Deputy Chief Justice and Vice President of the Supreme Court; Justice Mohamed Khadhar Ibrahim; Justice Dr. Smokin Wanjala; Lady Justice Njoki Susanna Ndung’u; Justice Isaac Lenaola and Justice William Ouko.
The court resolved to take an administrative action against the Senior Counsel over what it considers as a long-term attacks on its conduct and frame of integrity, evidenced through a collection of social media posts and various pronouncements he made while appearing on multifarious media interviews.
While the court has not addressed itself to the allegations of corruption and incompetence raised by Senior Counsel Ahmednasir Abdullahi, it has elected to deal with him on the basis of his opinion and speech.
Was the Supreme Court’s decision a fair administrative action? Is the decision problematic? To arrive at a fitting answer, the ground of epistemic discretion of constitutional law has to be ploughed, which I hereby do.
Firstly, there was no trial of SC Ahmednasir Abdullahi, and he had no representation at the time the entire bench was arriving at its decision. On Suo moto basis, the apex court resolved to indict Mr. Ahmednasir Abdulahion grounds of violation of professional ethics and wanton denigration of the court, and gave him no room to defend himself whether personally or through counsel of his choice.
The Constitution of Kenya in Article 50(1) of the Constitution makes provision for fair hearing, which itself yields room for dispassionate trial. The Article is trite safeguard to the effect that every person of interest to the court of law, has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body, whether such person is a citizen or not.
Further, Article 50 (2) states that “Every accused person has the right to a fair trial, which includes the right- (g) to choose, and be represented by, an advocate, and to be informed of this right promptly;” These cardinal rights were outrightly denied to Ahmed Nassir.
It is helpful to note too that Article 47 (1) of the Constitution of Kenya provides that “Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.” These constitutional edicts in the country’s supreme source of law are not amenable to a court’s liberal choice for application or to appreciate.
What is more interesting is that the court barred lawyer Ahmednasir, his law firm and any associate of the firm. None of the associates denigrated the courts through the social media posts referenced by the court, and none of them made unsubstantiated allegations against the court through media.
The ruling held that “it is the decision of this Court, that henceforth and from the date of this Communication, you shall have no audience before the Court, either by yourself, through an employee of your law firm, or any other person holding brief for you, or acting pursuant to your instructions. Much as this decision is bound to affect those who may have instructed you to represent them before the Court, it is untenable that you would seek justice in the very institution and before the very Judges, whose reputation and integrity you never tire in assaulting.”
The court’s vindictive punishment of Mr. Abdullahi has been inequitably extended to the unnatural person that his law firm is, and all associates thereto, including innocent clients that may have instructed his firm. Why would the court serve them ‘justice’ that is not due to them? What is the basis of the undeserving punishment of those who have not offended or held the court in contempt?
Clients of Ahmednasir Abdullahi LLP will suffer the sledge hammer ruling of the court in the circumstances. The necessities of justices have long manacled the chambers of justice to the intrinsic strands of equity that an advocate’s mistakes or limitations ought not be visited upon a client. If Mr. Abdullahi was an open sore to the Supreme Court, his associates or clients were not.
The Supreme Court Act Section 28 (6) provides that “The court may make an order denying audience to the contemnor for any period, as the court may deem fit, but not exceeding eighteen months”. Sadly, the order of the court as relayed by the Registrar of the Supreme Court condemns Mr. Abdullahi eternally, because it has not capped the time during which the order shall subsist.
Section 25 of the Supreme Court Act (2011) provides that “A judgement, decree or order of the Supreme Court may be enforced by the High Court as if it has been given by the High Court. This makes the order barring Mr. Abdullahi and his Associates has very far-reaching effects, and forestalls the competence of his firm’s engagement at the apex court.
The decision of the Supreme Court is extreme and unwarranted. The aggrieved judges could have filed complaints against Mr. Adbullahi to the Disciplinary Tribunal in terms of Section 60 of the Advocates Act (2012). Of Course, Section 56 of the Advocates Act confers upon the Chief Justice unmitigated disciplinary powers upon any advocate on accounts of misconduct or violation of professional ethics.
Can Senior Counsel Ahmednasir Abdullahi seek redress from the High Court given vital constitutional issues related to the order of the Supreme Court? The judiciary is subject to the Constitution and is totally bound by it, and the Supreme Court is a creature of the Constitution.
The Constitution of Kenya 2010’s Article 165 (3) (a)(b) and (d)(ii) provide extensive and unlimited jurisdictional powers to the High Court on constitutional issues, including those canvassed here, touching on whether Abdullahi’s constitutional rights stand violated by the order of the Supreme Court. This is augmented by the significance of Article 259 (1) of the Constitution which expressly provides that the Constitution shall be interpreted in a manner that “promotes good governance; advances the rule of law, and the human rights and fundamental freedoms of the Bill of Rights; permits development of the law; and contributes to good governance.”
The Senior Counsel could therefore consider examination of the Supreme Court decision under Judicial Review.
He may as well go to the cross-border courts such as the East African Court of Justice, or the International Court of Justice, but such court cannot overturn the decision or order of the Supreme Court of Kenya.
Has the Supreme Court oiled its machine of folly through judicial overreach? Courts are esteemed palaces of justice, and not caves of injustice. The Supreme Court justices need not wear reductionist lenses and place desirable normative neutrality on the guillotine. I hold the view that the right court has made a wrong decision to bar Senior Counsel Ahmednasir Abdullahi from appearing before it.
Javas Bigambo is a Lawyer and Political Scientist based in Nairobi
Governance, Human Rights and Development in Africa 