Sunday, February 05, 2012

Enact legislation to change the Sub Judice Rule

The Civil Procedure Rules make provisions for when a matter that is being considered in a court of law can be discussed (or not). The Constitution protects speech and the individual's right to know. Mr Justice Lenaola, while hearing a suit that considers the question of whether Uhuru Kenyatta and William Ruto may contest the presidency, has ordered all public discussion of their candidacies to cease during the duration of the trial. This is known as the Sub Judice Rule and it has exercised the blogoshpere like all things these days tend to do.

In Kenya, matters under active litigation are heard before judicial officers, without a jury as is common in other jurisdictions like the United States. The rule is meant to preserve the dignity of the court and the litigants by preventing the members of public from ridiculing them during the period when the matter is being considered by the court. However, with the new Constitution, the freedom of the people to free speech and expression and their right to be informed of matters of national importance, this rule comes up against the demand of the people to be allowed to comment, whether fairly or not, on the matters before the court.

Justice Lenaola, no doubt alive to the fact that legislation is yet to be enacted that would give life to the freedoms and rights and freedoms enshrined in the Constitution, fell back on the only legislation that addresses this knotty issue: the Civil Procedure Act. The commentators in the mass media and on the web refuse to accept the fact that there is no legislation to give life to the freedom to free speech and expression or the individual's right to be informed. Therefore, until a law is enacted to do so, the Sub Judice Rule will continue to be applied as and when the Court determines that it is best to do so. The reactions to the ruling of the court refuse to take into account that the enactment of legislation to implement the Constitution has been left to the devices of the politicians. Their antics have ensured that the process of enacting legislation is held hostage to the presidential ambitions of the political class and that the needs of the people play second fiddle to their ambitions. Therefore, such legislation as to give life to the freedom of speech and expression or the right to know has not been considered or even actively pursued. The men and women riling against the ruling must take a step back and acknowledge that they too must bear the blame for the situation that obtains today.

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