The CLA is concerned over the invoking of criminal contempt for scandalizing the court, which has been repealed in many parts of the Commonwealth. In this regard, it has been accepted that prosecution for this contempt
will deter comments on judicial errors or misconduct and will have a chilling effect on the freedom of speech and expression.
The CLA notes that in jurisdictions where prosecution for this contempt is still available, it has only been instituted in exceptional cases where there is a real risk of undermining public confidence in the administration of justice. Its application has also been narrowed by the overriding right to comment in good faith on matters of public concern and importance.
The CLA, while respectful of the court, considers that Mr Naidu’s comment could not satisfy the stringent threshold for the offence alleged. The court’s decision amounts to an unreasonable and disproportionate restriction on freedom of speech and expression.
The Platform for Law, Justice & Society is published by Gitobu Imanyara & Co every month principally to offer a platform for informed and critical discussion of the National Values and Principles set out in Articles 10 (2) of the Constitution of Kenya.