Chief Justice Martha Koome has suffered a major setback after the High Court declared unconstitutional the her decision to gag public comments on a presidential election petition while it is being heard.
Justice Mugure Thande quashed the Supreme Court (Presidential Election Petition Amendment Rules) 2022 to be followed during the proceedings of a presidential petition. [Supreme Court rules were amended by Koome being the head of the Judiciary. It was not in court].
In her judgement, justice Thande found the directive by the CJ stopping debate on the merits of any presidential election petition amounted to the usurpation of the law of Parliament to legislate on what amount to contempt.
“A Declaration is issued that the impugned Rules are unconstitutional for usurpation of Parliament’s role in legislating on contempt and making penal provisions thereto,” Justice Thande Said.
She has also found that the Supreme Court (Presidential Election Petition Amendment Rules) 2022 are declared unconstitutional for not adhering to Public Participation requirements.
The Decision by the court comes after Lawyer Omwanza Ombati lodged a petition filed at the High Court challenging the CJ’s directions on grounds that the same rules are meant to curtail people’s freedom of expression.
“Whereas every person is entitled to the freedom of conscience, thought, belief and opinion and the freedom of expression, the CJ’s gag order unjustifiably purports to limit these rights to the detriment of the public and litigants in a presidential election petition,” Ombati had informed the court.
However, Koome had defended the gag order, stating that it is aimed at protecting judicial integrity.
