Chief Justice Martha Koome has suffered a major setback after the High Court ruled that the Supreme Court’s decision to censor public comments on a presidential election petition while it is being heard was unconstitutional.

The Supreme Court (Presidential Election Petition Amendment Rules) 2022, which were to be followed during the proceedings of a presidential petition, were quashed by Justice Mugure Thande.

In her decision, Justice Thande concluded that the CJ’s directive prohibiting debate on the merits of any presidential election petition amounted to usurpation of Parliament’s authority to legislate on what constitutes contempt.

“A Declaration is issued that the impugned Rules are unconstitutional for usurping Parliament’s role in legislating on contempt and making penal provisions thereto,” said Justice Thande.

She also determined that the Supreme Court (Presidential Election Petition Amendment Rules) 2022 are unconstitutional for failing to comply with Public Participation requirements.

The decision by the court follows a petition filed at the High Court by attorney Omwanza Ombati challenging the CJ’s instructions on the grounds that the same rules are intended to restrict people’s freedom of expression.

While stating that “everyone has a right to the freedom of conscience, thought, belief, and opinion as well as the freedom of expression,” Ombati had informed the court that the gag order issued by the CJ “unlawfully purports to limit these rights to the detriment of the public and litigants in a presidential election petition.”

Koome, however, had defended the gag order, claiming that its purpose is to safeguard judicial integrity.

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