- This is the Ruling on the proposed Amicus Curiae Application dated 18/02/2025 by the Paradigm Initiative for Information and Technology Development.
- Rule 6 of the Mutunga Rules states that the Court may allow any person with expertise in a particular issue which is before the Court to appear as a "friend of the Court"; either on the Court's own motion or after the grant of orders sought orally or in writing.
- In this case, there is an Application dated 18/02/2025 which is opposed by the Petitioner and the 3rd Respondent; who were all heard on the same this morning and this Ruling delivered immediately thereafter.
- In Trusted Society of Human Rights Alliance -v- Mumo Matemo & 5 Others, the Apex Court formulated the guidelines on the role of an Amicus Curiae as being: (1) the Brief is to be limited to legal arguments, (2) the Brief should be neutral, (3) the Brief should have fidelity to the law, and (4) the Brief should be novel and stay away from legal points already raised , and it should bring in a new expert perspective.
- The Petitioner and the 3rd Respondent both argue that the Brief has taken partisan positions, and it, in any case, is sufficiently addressed by elements of the Petition and the Positions taken by the Respondents. While they, the Petitioner and the 3rd Respondent, would have no objection to the Paradigm Initiative for Information and Technology Development being joined as an interested party, the Applicant states that is would only wish to participate as amicus or not at all, as it has no wish to take a side in this matter.
- This, of course, resonates with the age-old restriction that an Amicus should have no interest in the decision that the Court shall make either way, for against the Petition, and it only wishes that the Court reach a well-informed decision that supports the development of the law and the public interest.
- On its website (www.paradigmhq.org/about-us/ ) the Applicant describes itself as a " non-profit organization that shapes policy, defends rights, and builds capacity in the digital environment towards a digitally inclusive and rights-respecting world."
- While undoubtedly the Applicant has the requisite expertise to serve as a Friend of the Court, I agree with the Petitioner and the 3rd Respondent that the Brief can be reasonable interpreted as advocating one side over another in the present case, admittedly either without it expressly doing so or seeking to do so.
- I note that the Applicant has a well-known 'Digital Rights Academy Programme' which actively builds capacity across Civil Society Organizations, Journalists, and Human Rights Defenders across a number of African countries, including Kenya. In a published report titled ' Devolved Impunity - The State of Safety and Security of Bloggers in Kenya 92019-2024)' a decided view emerges, such as that the Computer Misuse and Cybercrimes Act 2018 ..." restricts freedom of expression and creates a chilling effect that causes self-censorship." That view touches on one side's possible view of the matters at issue in the Petition herein, and it cannot be said that the Applicant would be viwed as non-partisan.
- For those reasons, the Application has failed the Supreme Court's tested in Trusted Society as there is a reasonable perception of partisanship in the Brief or the nature of the Applicant that can be ascribed to the Applicant's intention to join as an Amicus Curiae; and also based on its prior and ongoing role within commentary on digital freedom and the state of freedom of expression in Kenya and Africa as a whole.
- In that regard, the Application dated 18/02/2025 is dismissed with no costs awarded.
- The Applicant shall however be at liberty to apply for joinder as an Interested Party, if it so wishes.
Delivered after Hearing of the Application in the presence of:
Dr. Owiso Owiso - Counsel for the Applicant
Mr. Lawson Ondieki - Counsel for the 1st Respondent
Mr. Ibrahim Odour - Counsel for the Interested Party
Mr. Mbaji - Counsel for the 3rd Respondent
Mr. Victor Obondi - Counsel for the Petitioner
Ms. Neema - Court Assistant