Lawyer Ahmednasir Abdullahi on Monday moved to the East Africa Court of justice in Arusha seeking to quash a Supreme Court ban against him, and demanding damages of Sh200 million for alleged violation of his right to fair administrative action.
He said the Supreme Court unlawfully denied him audience based on a “judge-made offence” intended to stop the lawyer from publicly speaking about corruption in the Judiciary.
The lawyer claims that the ban was imposed following an exchange of WhatsApp messages between a few members of the Supreme Court bench.
“The respondent State (Kenya) manipulated the law on contempt of court to achieve a result that favoured impunity and limited the applicant’s freedom of expression.”
He argues that the Justices of the Supreme Court do not have any powers to punish the applicant for the social media posts, media interviews and write-ups that allegedly damage the reputation of the justices of the Supreme Court and the judges who have served thereon over the years.
The Sh200 million bill Ahmednasir wants is allegedly legal fees the lawyer would have earned in cases he was hired to represent clients, and which are pending determination at the Supreme Court.
The full seven-judge bench of the Supreme Court of Kenya on January 18, permanently barred the Senior Counsel, associates of his law firm and any other person holding brief for him or acting pursuant to his instructions from appearing before them for his continued attacks on judges and the judiciary.
Ahmednasir wants the EACJ to declare that his universally accepted fundamental right to work and fair administrative action were infringed on.
“…a declaration that the respondent’s state, acting through the acts and omissions of its judicial organs especially the supreme court of Kenya violated its commitments to the fundamental and operational principles of the East African community, in particular the principles of good governance, democracy, transparency, accountability, the rule of law and protection of human and people’s rights guaranteed under articles 6(d) and 7(2) of the EAC treaty.”
In the petition the Attorney General is sued on behalf of the Government of Kenya in respect of the action of the justices of the supreme court of Kenya.
He argues that the social media postings, media interviews and write-ups about institutional corruption, widespread incompetence and political interference that have allegedly damaged the reputation of the apex court and its judges are protected as fair comments on issues of public interest.
As a result he accuses the government of Kenya of infringing on his right to access justice and fair trial.
“The Applicant’s further complaint is that the conduct of the Justices of the supreme Court is unbecoming and does not comply with the fundamental principle of good governance including maintenance of internationally accepted standards of human rights in that in arriving at the arbitrary action contained in the letter dated 18th January 2024,” court papers say.
He says the justices of the apex court abused public power in undertaking an action that was not sanctioned by law intending to expose him to loss or risk of loss as a result he has suffered loss and damage by being denied his right to work and and earn a livelihood in an arbitrary manner.
The lawyer accuses the Supreme Court justices of not meeting the constitutional duty to afford him and others a fair hearing before issuing the ban.
He says that no legal rules were applied in making the arbitrary decision.
He also argues that the ban undermines public confidence in the Supreme Court.
“The Applicant further avers that if public confidence in the Supreme Court of Kenya is low, such confidence is unlikely to be restored by banning the Applicant from practicing before the Supreme Court of Kenya for an unspecified period, which is only likely to create more ill-feeling and resentment towards the Justices of the Supreme Court than the Applicant’s social media posts, media interviews and write-ups that allegedly damage the reputations of the Justices of the Supreme Court and other Judges who have served thereon over the years.”
The lawyer argues that the Supreme Court justices should have acknowledged potential conflict of interest before imposing the ban.
Their actions lacked proper judicial process and violated the principle of fair hearing, he says.
“The lack of impartiality on the part of the Justices of the Supreme Court is contrary to universally accepted standards of human rights including Article 7(1) of the African Charter on Human and Peoples’ Rights and Articles 10 and 168 (1) of the Constitution of the Respondent State and Regulations 11 (3)(b), 16, 20, 21 and 30 of the Code of Conduct and Ethics governing the conduct of the Justices of the Supreme Court,” he argues.
He added the ban represents a form of thought control and censorship, which goes against the principles of democracy and transparency.
He wants the court to grant him damages amounting to Sh200 million which he says is legal fees forfeited following the ban.
“This honorable court be pleased to award damages of Sh200 million or other sums to the applicant being fees that the applicant forfeited for cases he had conduct of before the Supreme Court,” he argued in the papers.
The Law Society of Kenya (LSK) has since petitioned the High Court of Kenya seeking to challenge the Supreme Court decision.
In the court papers filed at the Milimani High Court, LSK wants the unanimous decision by the seven judges of the Supreme Court led by Chief Justice Martha Koome overturned on grounds it is unconstitutional, unreasonable and against the rules of natural justice.
LSK argues that Ahmednasir together with his employees were never given an opportunity to be heard before the Supreme Court Judges made the decision to permanently bar them from appearing before the court and making submissions.
