A few weeks ago, the Supreme Court delivered a ruling on a matter in which the judges fell short of exacting punishment on an advocate whose conduct the court thought was outrightly improper.
The court appreciated that although a courtroom is a forum of conflicting views between the litigants, it ought not be allowed to become a theatre of gladiatorial conflict.
On that score, the Supreme Court judges admitted their consciousness to the fact that attending a court hearing may result in vigorous and forceful argumentation, but on no single occasion may that exchange depart from the deportment of courtesy firstly to the court and towards the contending parties and their advocates.
The ideal, therefore, is that the parties involved in a court case — judge, advocate and the litigants — are bound to maintain decorum and mutual respect to the court and to each other throughout the proceedings irrespective of the depth or values of the matter at stake.
This, however, is not always the case, and the judicial officer, as the presiding officer of the case, is empowered to ensure that the order envisaged in court proceedings is maintained. This is the basis for the power of a court to punish parties for contempt.
Contempt is defined as the power of a court to penalise anyone who conducts himself or herself in a manner that disparages the court or which tends to bring the authority and administration of law to disrespect of disregard.
Contempt of court is a crime and is generally punishable by the court for showing disrespect. The most common example of contempt could be in the disobedience of a court order.
This would happen say when a court directs a person or party to a suit to stop doing something which the court has determined is illegal.
This could lead to the party being cited, tried and condemned to punishment for contempt if it is proved that the disobedience of the court order was deliberate.
One of the examples here could be the finding by the High Court last year that the Inspector General of Police was in contempt of court for failing to produce Dr Miguna Miguna in court after an order was issued following arrest.
OBSTRUCTION OF JUSTICE
It is said that the power of contempt is meant to protect the public by sustaining their faith in the administration of justice and the courtroom as the proper forum for that.
Therefore, contempt can take many forms and manifestations. The most common is the illustration of defiance of court orders.
About two decades ago, the council of the Law Society of Kenya (LSK) was cited for contempt on allegations that the members had disobeyed a court order which prohibited them from discussing political matters that a member of LSK considered to have been beyond the purview of the society.
Contempt may also arise from action outside the courtroom but which is directed at the court. On this, the Supreme Court of India seems to be of one mind with their judicial colleagues in Kenya.
In the case of Supreme Court Bar Association of 1998, India’s top court held an advocate in contempt for obstruction of the course of justice.
The advocate was accused of having tried to threaten, overbear and overawe the court by the use of insulting, disrespectful and threatening language in his pleadings.
In January, the Supreme Court of India warned lawyers that false accusations of political bias against the Judiciary was the gravest form of contempt and would not be tolerated.
This only led to erosion of the dignity of the courts as a platform for justice and redress, the judges said.
Justices Arun Mishar and Vineet Saran of the India Supreme Court said that lawyers should refrain from attributing political motives to the judges over unfavourable judgments.
The judges stated that complaints should be lodged against judges in the proper forum rather than through the media.
They likened service in the Judiciary to military whose power must be used sparingly.
The responsibility of ensuring courteous and professional courtroom is not just left to the judges to enforce without a corresponding obligation.
In the Offut vs United States, an advocate’s conviction for contempt was set aside by the Supreme Court because the record revealed that the improper conduct and bad situation as the result of lack of restraint for the advocate, which was complicated by the judge’s excessive zeal and personal animosity of the trial judge.
The court made it clear that while the advocates appearing for parties have the liberty on how to conduct their cases, there should be clarity between courage and contempt.
But contempt proceedings do not always arise from altercations between judges and counsel representing parties in a case.
In October 2012, it was an advocate who found himself in need of the protection of a judge exercising the power to punish for contempt.
Lamarcus Williamson had been charged for assault, robbery and drug possession. He pleaded guilty to the charge and appeared in court with his counsel for sentencing.
When the judge pronounced a sentence of 15 years imprisonment, Mr Williamson’s counsel placed his arm on his client’s shoulder to console him.
The convict, then still in handcuffs, managed to punch his counsel on the face. The judge quickly increased the sentence by six months on account of contempt.
The power of the court is such that not even judges can be immune from punishment for contempt.
In 2017, Justice Karnan of India was sentenced to jail for contempt against the Supreme Court. His crime was that he made allegations against Supreme Court judges without evidence.
The judge had written a letter to the Indian Prime Minister and claimed, without evidence, that 20 judges were corrupt.
Judge Karna was then summoned by the Supreme Court and ordered from performance of his judicial duties.
In response, the judge accused the Supreme Court of caste discrimination and issued an order to prohibit the Supreme Court judges from leaving India.
When the Supreme Court ordered that the judge’s mental health status be evaluated by a psychiatrist, he retaliated with a similar order against the Supreme Court judges.
In May, 2017, the judge went ahead to order the Chief Justice of India and seven judges of the Indian Supreme Court to prison.
The judge ended up being the one going to prison for contempt of the Supreme Court.
As I have mentioned above, the parties to the case and the judges are not the only ones who could find themselves ensnared by the net of contempt.
All too often media practitioners find themselves cited for contempt.
In May, 2018, Mr Stephen Yaxley-Lennon (popularly known as Tommy Robinson) was convicted by the High Court in England and sentenced for contempt for live-streaming a report of trial.
My favourite story on contempt of court involves a newspaper in the United States. In 1941, two trade unionists who had been convicted of assault applied for probation.
Before the sentence was meted out by the court, a newspaper published an editorial by the title “Probation for Gorillas?”
The Editorial went ahead to suggest that the judge would be in serious error if he were to grant the unionists’ request for probation.
The editor and publisher were held in contempt of court and were fined. They appealed to the Supreme Court and succeeded.
The judge reasoned that the substantive evil to the court and administration of justice had to be real and serious for a court to penalise comment on ongoing cases.
The Supreme Court reasoned that it was not merely the fact of criticism or seeking to suggest to the court how to decide a case which should be punished by contempt.
In Kenya, the courts remain unconvinced that coverage, however negative, does not affect the judicial officer’s exercise of his freedom to determine the case or detract from the administration of justice.
Sekou Owino is head of legal at Nation Media Group