(Media Institute/IFEX) – On 20 August 1999, Anthony Gachoka, the publisher of the “Post on Sunday” weekly magazine, was found guilty of contempt of court and sentenced to six months imprisonment without the option of a fine. His company, The Post Limited, was fined Kshs 1 million (US$13,500) and ordered to cease publication of the […]
(Media Institute/IFEX) – On 20 August 1999, Anthony Gachoka, the publisher
of the “Post on Sunday” weekly magazine, was found guilty of contempt of
court and sentenced to six months imprisonment without the option of a fine.
His company, The Post Limited, was fined Kshs 1 million (US$13,500) and
ordered to cease publication of the “Post on Sunday” or any other title
until the fine is paid.
Gachoka was whisked away from the court precincts by police soon after each
of the seven judges of the Court of the Appeal, the highest in Kenya, made
their ruling, with one judge dissenting.
Gachoka’s sentence is by far the heaviest for contempt of court in the
country’s history and far exceeds the 1994 contempt case against David
Makali, Bedan Mbugua, GBM Kariuki and “The People” newspaper, who were
sentenced to various terms of imprisonment but with the option of a fine and
an apology, which the first two declined.
The judges found Gachoka guilty of a scurrilous attack on the judiciary
likely to bring the administration of justice into disrepute. They also
convicted him of the offence of publishing subjudicial comments and
disparaging the judiciary.
Gachoka had claimed in two editions of his publication, dated 31 January and
7 February, that the chief justice had been bribed with US$450,000 to
influence judgement in numerous cases before the courts relating to the
Goldenberg scandal which led Western donors, led by the International
Monetary Fund (IMF) and the World Bank, to withold balance of payments
support and ESAF to the country in 1993.
Following is the statement of the Media Institute on the trial, released on
20 August:
PRESS STATEMENT
August 20, 1999
GACHOKA CONTEMPT: COURT OF APPEAL ENCOURAGING JUDICIAL TYRANNY
” This court being a court of last resort in this country, I shudder at the
thought that with clear provisions of the law entitling the first respondent
to give oral evidence on his own behalf after he has expressed his wish to
do so, this court would be blind to the obvious miscarriage of justice.”
– Presiding Justice Evans Gicheru’s dissenting judgement
The Media Institute regrets the conviction and sentence imposed on the
publisher of the Post on Sunday, Mr Tony Gachoka, and the Post Ltd., by the
Court of Appeal on August 20, 1999. The unanimous decision of the Court,
with Justice Evans Gicheru dissenting, raises many fundamental questions on
whether justice was actually done or seen to be done.
It is regrettable that Mr Gachoka did not have the opportunity to adduce
oral or any evidence for his publications, whether true or false, which he
sought, but was barred by procedural technicalities, leaving the grave
allegations unproven and disproved at the end of the trial.
Many eyebrows will remain raised as to how three judges against whom
accusations of impropriety had been levelled in the articles giving rise to
the contempt proceedings could sit in trial of Mr Gachoka. The validity of
their judgements is compromised by the real or imagined possibility that
they might have been actuated by personal interest or injury. They violate
the right of an accused person to an impartial hearing.
Impartial means that none of those sitting in your judgement should have an
extra, real or imaginary, interest in your guilt or innocence other than
enforcing the relevant law. Understandably, judges are supposed to be, like
Caesar’s wife, beyond suspicion. We do not believe that the trial meets the
Constitutional requirement of a fair trial by an impartial court and in our
view, the Gachoka case could erode the very confidence of the public in the
judiciary that the judgement seeks to uphold. Judges of appeal against whom
adverse comments had been made had no business hearing the case to sanitise
themselves. That judgement amounts to and is likely to be construed by right
thinking Kenyans as an act of self-defence by the Court.
Mr Gachoka had been charged that the contents of two publications of his
Post on Sunday, which claimed that the judiciary had been compromised and
imputed improper motives on several judges of appeal, a claim which he
insisted on justifying. The heavy sentences send the message that only the
judiciary should be concerned with its own shortcomings or the
administration of justice in Kenya. Yet the judiciary has proved itself to
be perfectly incapable of that duty as the Kwach report has recently
demonstrated. It is a bad judicial precedent that such a multitude of judges
could sit to administer what amount to “mob justice” in a matter directly
related to the unresolved Goldenberg scandal.
It is indeed a sad day in the history of Kenya’s judiciary that judges
against whom adverse comments have been made, whether true or false, sit in
trial of the accused, in violation of the fundamental principles of natural
justice. As the highest court in the country, we regret that the Court of
Appeal is setting a dangerous precedent of judicial dictatorship by
systematically usurping the responsibilities of the High Court and the lower
courts.
In our hierarchical system of justice, just as cases cannot originate in the
Court of Appeal, so the Court of Appeal should restrain itself from taking
over the original jurisdiction of the lower courts. It is our view that the
Court of Appeal should strive to remain the appellate court as prescribed by
section 77 of the Constitution and not stoop to a high court, magisterial or
any other court. By entertaining original matters, the Court of Appeal is
being contemptuous of our Constitution and history will not judge it fairly
regardless of how it holds itself.
A Constitutional Court should be constituted to determine whether the Court
of Appeal, by adjudicating in matters of original jurisdiction, is not
violating an accused person’s inherent right of appeal. Failing this,
Parliament should be moved to review that position and set the record
straight.
Signed
David Makali
Director
For further information, contact David Makali, the Media Institute, mailing
address:
P.O. Box 62651, street address: Cargen House, second floor, Harambee Avenue,
Nairobi, Kenya, tel: +254 2 217 082/217 209/244 327/244 469, fax: +254 2 219
768,
e-mail: med
