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Last week, the Supreme Court of Kenya to hear a lawyer from Ahmednasir Abdullahi Advocates LLP, a firm owned by lawyer Ahmednasir Abdullahi. The court stated that the ban against Senior Counsel Ahmednasir and his legal team from appearing before it is still effective. To that effect, the court decided to recuse itself; hence, the case did not proceed to hearing. The actions by the Apex Court judges elicited strong debate in the legal cycles, with stakeholders calling the actions reckless for lack of a better word. For context, Senior Counsel’s woes commenced In a letter dated January 18, 2024, where the court cited Ahmednasir’s “social media posts, media interviews, and write-ups” as the basis for its decision, claiming that his criticisms had tarnished the court’s reputation and that of its judges. This move, communicated by Deputy Registrar L.M. Wachira, raised profound questions about judicial independence, freedom of speech, and the right to legal representation, which this article seeks to explore.
Ahmednasir’s public criticisms of the judiciary have been a focal point of the Supreme Court’s decision. While the court has the right to protect its reputation, it must also respect the right to freedom of speech, which is enshrined in Article 33 of the Kenyan Constitution. In Okiya Omtatah Okoiti v Attorney General (2020), the High Court held that criticism of public institutions, including the judiciary, is a vital component of a functioning democracy. The court emphasized that public scrutiny and accountability are essential for maintaining public trust in the judiciary.
To set the record straight, I hold that while the judiciary has a duty to protect its integrity, the manner in which the Supreme Court has exercised its authority in this case appears to overstep its mandate. The decision not only undermines the principles of natural justice but also sets a dangerous precedent that could stifle dissent and erode public trust in the judiciary. I will begin by pointing out that the Supreme Court’s decision to bar Ahmednasir Abdullahi and his firm lacks a solid legal foundation. Under Kenyan law, the court’s powers to regulate advocates are limited. Section 28 of the Supreme Court Act grants the court authority to punish contemptuous behavior, but it does not provide for the indefinite barring of an advocate or an entire law firm from appearing before it. The Advocates Act, which governs the conduct of lawyers, establishes mechanisms for disciplining advocates through the Advocates Complaints Commission and the Law Society of Kenya (LSK). By bypassing these established channels, the Supreme Court has acted in a manner that raises serious concerns about procedural fairness and adherence to the rule of law.
The court also failed to provide Ahmednasir or his firm with an opportunity to respond to the allegations before imposing the ban. This lack of due process violates the principles of natural justice, which require that a person be given a fair hearing before any adverse action is taken against them. In the case of Githiga & 5 others v Kiru Tea Factory Company Ltd [2023] KESC 41 (KLR) (https://chat.esheria.co.ke/r/mKd6kJn), the Supreme Court itself emphasized the importance of due process and the right to a fair hearing. The court held that any action taken against an advocate must be grounded in law and must respect the principles of natural justice.What changed in this scenario? What was the magic wand? Why not afford the right they have selfishly advocated for? By failing to adhere to these principles, the Supreme Court’s decision to bar Ahmednasir appears arbitrary and unconstitutional and laced with malice, however much he may be in the wrong. This is a duty extended to all, and Ahmednassir and, by extension, his law firm, must not be denied this inherent right.
I must point out that everyone in the legal profession agrees that judicial independence is a cornerstone of any democratic society, but it must be exercised within the bounds of the law. The Supreme Court’s decision to bar Ahmednasir raises questions about whether the court acted within its powers or exceeded its jurisdiction. In Justice Philip K. Tunoi v Judicial Service Commission (2016) (https://chat.esheria.co.ke/r/Q9UlEJE), the Supreme Court emphasized that judicial independence does not mean that judges are above the law or immune from criticism. Public scrutiny and accountability are essential for maintaining public trust in the judiciary. By barring Ahmednasir, the Supreme Court risks creating the perception that it is intolerant of criticism and willing to use its powers to silence dissent. A case of preaching water and drinking wine.
This decision also sets a dangerous precedent. If the Supreme Court can bar an advocate or a law firm without due process, what stops it from doing the same to others who criticize its decisions? This could have a chilling effect on legal practitioners, discouraging them from speaking out against judicial misconduct or advocating for reforms. The judiciary’s role is to interpret the law, not to act as a gatekeeper for who can or cannot practice before it. By overstepping its mandate, the Supreme Court undermines its own legitimacy and the rule of law. But this is not all. What happened to the right of a client to choose an advocate or law firm of his or her liking for representation? By barring Ahmednasir and his firm, the court has effectively denied litigants the right to choose their legal representatives. This is a fundamental right protected under Article 48 of the Kenyan Constitution, which guarantees access to justice.
In Republic v.Eddy Kariuki Ngari & Raphael Wachira Kariuki [2021] KEHC 5340 (KLR) (https://chat.esheria.co.ke/r/GNWlO2q) , Muchemi J held that the right to legal representation is a cornerstone of the justice system. The court emphasized that any restriction on this right must be justified and proportionate. The Supreme Court’s decision to bar Ahmednasir and his firm appears disproportionate and unjustified, particularly since it extends to innocent parties who had no involvement in the alleged misconduct. The decision also disrupts ongoing cases in which Ahmednasir’s firm is involved, potentially causing delays and undermining the administration of justice. This raises concerns about the court’s commitment to upholding the rule of law and ensuring access to justice for all. Litigants who have entrusted their cases to Ahmednasir’s firm now face the prospect of having to seek new representation, which could result in additional costs and delays. This not only harms the affected individuals but also erodes public confidence in the judiciary.
The Supreme Court’s decision to bar Ahmednasir Abdullahi and his firm from appearing before it is a troubling development that raises serious questions about judicial overreach, the right to legal representation, and freedom of speech. While the court has the right to protect its reputation, it must do so within the bounds of the law and with due regard for constitutional rights. The decision sets a dangerous precedent that could have far-reaching implications for the legal profession and the administration of justice in Kenya. It is imperative that the legal fraternity, civil society, and other stakeholders take action to address these concerns and ensure that the judiciary remains accountable, transparent, and respectful of fundamental rights. As the former Chief Justice David once said, “The judiciary must be the last bastion of hope for the common citizen.” The Supreme Court’s decision to bar Ahmednasir and his firm risks undermining this hope and eroding public trust in the judiciary. It is time for the court to reflect on its actions and take steps to restore confidence in its commitment to justice and the rule of law.
