HISTORY
Contempt of Court in general has been defined as any conduct that defies the authority or dignity of a court or interferes with administration of justice and is therefore punishable by fine or imprisonment. Lord Diplock thought of the term “Contempt of court” as a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes.
This law is essentially concerned with the maintenance of public confidence in the administration of justice by courts of law but does not exist to protect the personal dignity of the judiciary or the private rights of parties or litigants. Disobedience of court orders not only undermines the very foundation of the rule of law but also erodes the dignity and authority of the courts.
There have been divergent views on the existence of this tool. Some scholars opine that the tool gives the judicial officers wide discretion in determining contempt and as such, it has been subjected to criticism by many. Some have even argued that the discretion amounts to an abuse of the rule of law.
However, there are other proponents who protect the very existence of tool, arguing that it enables the court to remain standing, as a constitutional authority, and ensure the court’s internal mechanisms are functional. Without these powers, protection of citizens’ rights and freedoms would be virtually impossible as courts of law would be reduced to futile institutions spewing forth orders in vain.
The laws and rules governing contempt have developed in a piecemeal fashion. In Kenya, the law on Contempt of court was adopted from England. The Judicature Act subjects the proceedings of contempt of court in Kenya to the powers for the time being possessed by the High Court of Justice in England. The Contempt of Court Act, 1981 and in Part 81 of the Civil Procedure (Amendment No. 2) Rules, 2012 are the prevailing laws on contempt of court in England.In Christine Wangari Gachege v Elizabeth Wanjiru Evansthe Court of Appeal affirmed Section 5 of the Judicature Act and Section 63(c) of the Civil Procedure Act as the statutory basis of contempt of court in so far as the Court of Appeal and the High Court are concerned.
Having in mind that there is a new constitution, the legislators have made effort in harmonizing the prior laws with the new constitutional order. In trying to have our own law by the people and for the people, parliament enacted The Contempt of Court Act, 2016 and the same came into force on 13th January 2017 seeks inter alia to safeguard the rule of law and ensure that court orders and directives are complied with just like its predecessors.
In the cause of this paper, we shall interrogate the relevance of this Act and the new dawn to our jurisdiction, the Act’s objectives, comparison between different jurisdictions and how the issue of contempt of court is handled in each.
SOURCES OF LAW
Enacted by Parliament to define and limit the powers of courts in punishing for contempt of court and for connected purposes, the Contempt of Court Act No. 46 of 2016 was assented to on the 23rd December 2016 and was set to commence on 17th January 2017. The enactment of this Act led to the repealing of Section 5 of the Judicature Act Cap 8 which initially dealt with contempt of court proceedings. The Act gives a broader scope conferring various limits as to the jurisdiction conferred unto courts to which such proceedings appear and it sets out the form and procedure through which contempt proceedings take and its defence.
JURISDICTION
This is conferred under Part II of the Act and divides this jurisdiction into two.
Jurisdiction of superior courts
Jurisdiction of subordinate courts.
Jurisdiction of superior courts
Set out under section 5 of the Act, this gives the court the power to punish for contempt of court on the face of the court. Such contempt is as laid out under section 4(1)(b) which criminalizes any behavior deemed to undermine or downplay the authority of the court or sitting judge and any action done to interfere with or alter/frustrate any judicial proceeding while the trial is ongoing. Such acts are listed in the Act to include; publication, whether by words, spoken or written, by signs and visible representation or otherwise.
For these acts to be held as contempt on the face of the court, the statute lays down three vital requirements needed to meet this threshold. These stipulate that the acts must:
Scandalize or tend to scandalize, lowers or tends to lower the judicial authority or dignity of the court
Prejudices or interferes or tends to interfere with the due course of any judicial proceeding
Interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice
From the foregoing, an act can be said to be done in contempt of court if by carrying out such act, it poses a certain degree, whether partial or absolute, that hampers the administration of justice and diminishes the integrity and dignity of the court. In so doing, the perpetrator is on a course to frustrate the administration of justice, matters to which the court takes very sternly against.
Through this jurisdiction, the Court of Appeal derives original jurisdiction to adjudicate upon a matter of contempt if such act is committed in the face off the court. This means that the court can stay its ordinary proceedings and adjudicate on the offending matter constituting contempt summarily which is done with a view of eliminating such acts that would otherwise undermine its authority and interfere with fair administration of justice ab initio.
Jurisdiction under subordinate courts
Subordinate courts derive the power to punish for contempt of court proceedings on the face of the court under section 6 of the Act. This power is limited to where a person does the following acts.
Assaults, threatens, intimidates, or willfully insults a judicial officer or a witness, during a sitting or attendance in a court, or in going to or returning from the court to whom any relevant proceedings relate.
Willfully interrupts or obstructs the proceedings of a subordinate court
Willfully disobeys an order or direction of a subordinate court.
From the above, such offence may be committed during an ongoing court session, immediately preceding the court session or immediately succeeding the court session where such actions constituting contempt are qualified if there exists a connection to the proceedings.
Section 7 of the Act provides that such offence be tried summarily while imposing a duty on the court to keep a record of the proceedings. It further cautions that proceedings to try contempt of court provided for under any other written law does not take away the right to a fair trial and fair administrative action as guaranteed by Article 47 and 50 respectively of the Constitution.
Similarly, section 8 mandates that criminal proceedings for contempt of court be instituted with the consent of the Director of Public Prosecutions with leave of the court or on the motion of a court having jurisdiction to deal with criminal contempt of court.
SANCTIONS FOR CONTEMPT OF COURT
The contempt of court act under section 28 identifies various sanctions to be imposed against the contemnors. These are;
Imprisonment and fine; subsection (1) provides for imprisonment for a period not exceeding 6 months or a fine of up to 200,000 shillings. This was a reduction from the previous sentence of two years under the English contempt of court act of 1981 which was the law applicable in Kenya previously in relation to contempt of court. The reasons for the reduction of the sanctions were not clear and this has attracted criticisms of the act from various sources. However, a look at the history of contempt in the Kenyan courts reveal that at no time have the courts imposed a sentence of more than 6 months for the contempt of court offence. The courts have the discretion to impose either of the two or both of them.
When will imprisonment be preferred to fines?
Depending on the circumstances of the case either of the two may be preferred over the other. The basic consideration is whether the ends of justice will be met.
Subsection (6) provides that where upon considering the circumstances of the case the court is of the opinion that imposing a fine will not meet the ends of justice; it will then order that the offender be committed to civil jail for a period not exceeding 6 months. This is an innovation of the act that intended to ensure attainment of justice through the punishment meted out on the contemnors.
However, in the previous years before the enactment of the contempt of court act, enforcement of the imprisonment sanctions has not been effective. This is especially where the same applies to high ranking officer. In the case of R v Permanent Secretary, Office of the President, Provincial Administration and Internal Security, Ex parte Wanyiri Kihoro, the court committed the permanent secretary then, Kimemia Francis to civil jail for 6 months for disobedience of a court order of mandamus requiring him to settle the amount owed to the applicant. The order was to be enforced by the commissioner of police then. However, the same was not enforced nor were proceedings undertaken to set the order aside following the payment of the said amount. We are yet to see changes to this trend following the entry into force of the act.
Courts have been in most times opted for fines rather than imprisonments. In The Teachers Service Commission v The Kenya National Union of Teachers & 3 others, for instance, the court imposed a fine of 1,000,000 on both the TSC and its officials after disobeying a court’s order to end the teachers’ strike.
The vice-chancellor of the Jomo Kenyatta University of Agriculture and Technology was fined KES 500,000/- or one month imprisonment for disobeying the court orders not to fill the position occupied by the applicant until the determination of the suit in the case of Professor Francis M. Njeru v Professor Mabel Imbuga.
However, it is highly questionable whether the sanction of fines is effective when imposed on public officials and state officers. This is because in most cases the fines will be raised by the institutions they are working for with ease and in most cases they are unlikely to feel the pinch of paying the fine.
Apology
This is contained under subsection (4). It provides that; where an apology is given to the satisfaction of the court, the offender may be discharged or the awarded punishment remitted. An apology will be deemed to be to the satisfaction of the court if it is considered to have met th ends of justice. However, there are times a fine will be imposed despite an apology having been given. For instance in Moses P. N. Njoroge, Jim Wamble, Daniel Hinga Muiruri, the Registered Trustees New Testament Church of God v Rev. Musa Njuguna & Anor, after the contemnor gave an apology, the court replaced the four months imprisonment sentence to a fine of Ksh 100, 000.
COMPANIES
These are juristic persons. Section 29 identifies the persons to be punished for contempt of court in addition to the companies. These are; every person who, at the time the contempt was committed, was in charge of and was responsible to the company for the conduct of business of the company. However, where they prove to the court that they took every step to prevent the act in question from happening or the act was done without their knowledge then they will not be found liable.
Liability may also before directors, managers, secretaries or officers of the company where it is found that any of them colluded with the offender, allowed it or was brought about by their negligence.
Government
Under section 30 of the act, contempt of court proceedings cannot be brought against a State organ, government department, ministry or corporation in respect of an undertaking to the court unless a 30 day notice has been served to the accounting officer. The notice is to require the accounting office to show reasons why contempt of court proceedings should not be commenced against the organ, ministry, department or corporation in question. The notice is to be served on the accounting officer and the Attorney General. In the case of National Bank of Kenya Ltd v County Council of Olekejuado & 2 Others, for instance; the contempt of court proceedings were struck out on the basis that no notice was served on the AG. The accounting officer will be found guilty of contempt where they have colluded with the offender, allowed the act in question or the act has been committed due to negligence on their part.
OTHER SANCTIONS
INJUNCTIONS;
This is a common law sanction. The court may at its own discretion fail to imprison or fine the contemnor and proceed to issue an injunction. This is the most lenient sanction of all. The injunction simply restrains the contemnor from committing future contempt. The court will in most cases act at its own motion.
COSTS
In addition to others orders of the court, the contemnor will be required to pay costs for the application on the basis of the principle that costs should follow event. It is common sense that the contemnor should be required to pay for the costs of an application brought to enforce an order they have disobeyed. The aim of contempt of court proceedings is to promote rule of law and good administration. This goes beyond the mere interests of the parties and therefore even in cases where the application fails the defendant should be required to pay the costs.
DEFENCES TO CONTEMPT OF COURT
When a person is charged with contempt of court, they can make various claims or allude to certain circumstances to either justify the act that has been called into question or in a bid to defend themselves. Such claims are referred to as defenses. In Kenya, they are envisaged under the contempt of court act 2016 as from section 9. Some of these defenses are;
Section 9;
When one is charged with the contempt of court, it can be defense when they prove that;
That the conduct that is in issue was a general comment of the working of the court that was made in in good faith, in the public interest and in a temperate language. Making general comments in relation to the normal operations of the court does not amount to contempt so long as the language is used does not show intent to lower the dignity and authority of the court.
Where the issue in question concerns a decision of a court, that the same was a fair comment on its merits and was made in a temperate language. There is no harm in criticizing the decisions of the court.
Defense of justification. A person can claim and prove to the court that the conduct in issue is a publication of a fair and substantially accurate report of judicial proceedings. One should be faulted for stating the true position of an issue or mater.
report of any judicial proceeding; Innocent publication defense; In cases where one has published a matter in judicial proceedings i.e. a matter that is active in court; a person can prove that he/she had no reasonable ground to believe that such a matter was pending in court
Innocent distribution defense; this comes into play where one is charged with the Distribution of publications containing any matter that amounts i.e. that they such a person had no reasonable round to believe that the publication contained or was likely to contain any such matter.
True declaration made in good faith and in a temperate language for the initiation of action or in the course of a disciplinary proceedings against a judge or a judicial officer.
Plea of truth that is taken up a defense in any contempt of court charge.
A relevant observation that is made in a judicial capacity by a superior court on an appeal or revision or application for transfer of case or secondly, by a court in judicial proceedings against a judge or judicial officer.
Remarks made in an administrative capacity by an authority in the course of official business, including a remark that is connected with a disciplinary or an inspection note or character role or confidential report
It is also a defense that the issue in question relates to other matters that are exempted from constitution of a commission of an offense of contempt under any other written law. There are certain matters that fall outside the ambit of contempt of court.
All the above defenses have to be proved to the satisfaction of the court
Section 10 of the act provides for the strict liability rule. This is a rule of law under which conduct may be treated as contempt of court whether or not there was intent to do so. Strict liability will come into play where a person’s conduct is likely to interfere with the courts of justice in relation to any judicial proceedings.
Defenses of strict liability; all those defenses applicable in common law and also one could plead the defense of innocent publication and defense discussed above as stated under section 13.
Other common law defenses
Vagueness of the orders of the court; one can justify failure to obey the orders of the court by showing that such orders or directives lacked clarity.
Void judgement or ruling; where a court lacks jurisdiction, its decision is void and thus not binding. A person is therefore justified for disobeying any such orders.
Reliance on an agreement; though for a private agreement to be binding it has to be admitted to the final decree by the court which could be through a modification of the decree, one can seek to justify their actions by citing reliance on such an agreement. Depending on the circumstances of the case, the court could discharge contempt claims against a person.
COMPARISON BETWEEN CIVIL AND COMMON LAW JURISDICTIONS
This section will compare both jurisdictions and attempt to point out the differences and rationale behind them.
COMMON LAW JURISDICTION
INDIA
Contempt of Court is defined under Section 2(a) of the Contempt of Courts Act as civil contempt or criminal contempt; it is generally felt that the existing law relating to contempt of courts is somewhat uncertain, undefined and unsatisfactory. The jurisdiction to punish for contempt touches upon two important fundamental rights of the citizens, namely, the right to personal liberty and the right to freedom of expression.
Civil Contempt under Section 2(b) of the Act has been defined as willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court while Criminal Contempt under Section 2(c) of the Act criminal has been defined as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which: Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
In the case of Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and Ors., a three Judge Bench of the Hon’ble Supreme Court observed as under: "The definition of criminal contempt is wide enough to include any act by a person which would tend to interfere with the administration of justice or which would lower the authority of court. The public have a vital stake in effective and orderly administration of justice. The Court has the duty of protecting the interest of the community in the due administration of justice and, so, it is entrusted with the power to commit for contempt of court, not to protect the dignity of the Court against insult or injury, but, to protect and vindicate the right of the public so that the administration of justice is not perverted, prejudiced, obstructed or interfered with.
Another case of contempt is C.K. Daphtary v. O.P. Gupta; the respondent published and circulated a booklet in public purporting to ascribe bias and dishonesty to Justice Shah while acting in his judicial capacity. Mr C.K. Daphtary, along with others, filed a petition alleging that the booklet has scandalized the judges who participated in the decision and brought into contempt the authority of the highest court of the land and thus weakened the confidence of the people in it. The Supreme Court, in examining the scope of the contempt of court, laid down that the test in each case is whether the impugned publication is a mere defamatory attack on the judge or whether it will interfere with the due course of justice or the proper administration of law by the court.
For the concept of Contempt of Court, the Contempt of Court Act, 1971 was passed which dealt with such a concept. Article 129 and 215 of the Constitution of India empowers the Supreme Court and High Court respectively to punish people for their respective contempt. Section 10 of The Contempt of Courts Act of 1971 defines the power of the High Court to punish contempt’s of its subordinate courts.
The elements generally needed to establish contempt are: the making of a valid court order, knowledge of the order by respondent, ability of the respondent to render compliance, and willful disobedience of the order. According to Lord Hardwick, there is a three-fold classification of Contempt: Scandalizing the court itself, abusing parties who are concerned in the cause, in the presence of court and Prejudicing the public before the cause is heard.
There can be no doubt that the purpose of contempt jurisdiction is to uphold the majesty and dignity of law courts and their image in the minds of the public is no way whittled down. If by contumacious words or writings the common man is led to lose his respect for the judge acting in the discharge of his judicial duties, then the confidence reposed in the courts is rudely shaken and the offender needs to be punished.
In essence of law of contempt is the protector of the seat of justice more than the person sitting of the judge sitting in that seat. The Hon'ble Supreme Court in the case of In Re: S. Mulgaokar, observed as under: "The principle of contempt of court is to avoid confusion between personal protection of a libeled judge and prevention of obstruction of public justice and the community's confidence in that great process. The former is not contempt, the latter is, although overlapping spaces abound. Because the law of contempt exists to protect public confidence in the administration of justice, the offence will not be committed by attacks upon the personal reputation of individual judges as such. As Professor Good hart has put it: Scandalizing the court means any hostile criticism of the " judge as judge; any personal attack upon him, unconnected with the office he holds, is dealt with under the ordinary rules of slander and libel.
A third party to the proceeding may be guilty of contempt of court if they have a part to play in the offence. In LED Builders Pty Ltd v Eagles Homes Pty Ltd Lindgren J stated: "It is not necessary to show that a person who has aided and abetted a contempt of court was served with the order breached. It is necessary to show only that the person sought to be made liable knew of the order." Limitation period for actions of contempt has been discussed under Section 20 of the Contempt of Courts Act of 1971 and is a period of one year from the date on which the contempt is alleged to have been committed.
ENGLAND
In English law which is a common law jurisdiction, the law on contempt is partly set out in case law, and partly specified in the Contempt of Court Act 1981. Contempt may be a criminal or civil offence. The maximum sentence for criminal contempt is two years.
Disorderly, contemptuous, or insolent behaviour toward the judge or magistrates while holding the court, tending to interrupt the due course of a trial or other judicial proceeding, may be prosecuted as "direct" contempt. The term "direct" means that the court itself cites the person in contempt by describing the behaviour observed on the record. Direct contempt is distinctly different from indirect contempt, wherein another individual may file papers alleging contempt against a person who has willfully violated a lawful court order.
Criminal contempt of court
The Crown Court is a superior court of record under the Senior Courts Act 1981 and accordingly has power to punish for contempt of its own motion. The Divisional Court has stated that this power applies in three circumstances: Contempt "in the face of the court" (not to be taken literally; the judge does not need to see it, provided it took place within the court precincts or relates to a case currently before that court); Disobedience of a court order; and Breaches of undertakings to the court.
Where it is necessary to act quickly the judge (even the trial judge) may act to sentence for contempt. Where it is not necessary to be so urgent, or where indirect contempt has taken place the Attorney General can intervene and the Crown Prosecution Service will institute criminal proceedings on his behalf before a Divisional Court of the Queen's Bench Division of the High Court of Justice of England and Wales.
Magistrates' courts are not superior courts of record, but nonetheless have powers granted under the Contempt of Court Act 1981. They may detain any person who insults the court or otherwise disrupts its proceedings until the end of the sitting. Upon the contempt being either admitted or proved the judge may imprison the offender for a maximum of one month, fine them up to £2,500, or do both.
It is contempt of court to bring an audio recording device or picture-taking device of any sort into an English court without the consent of the court. It is not contempt of court (under section 10 of the Act) for a journalist to refuse to disclose his sources, unless the court has considered the evidence available and determined that the information is "necessary in the interests of justice or national security or for the prevention of disorder or crime."
Strict liability contempt
Under the Contempt of Court Act 1981 it is criminal contempt of court to publish anything which creates a real risk that the course of justice in proceedings may be seriously impaired. It only applies where proceedings are active, and the Attorney General has issued guidance as to when he believes this to be the case, and there is also statutory guidance. The clause prevents the newspapers and media from publishing material that is too extreme or sensationalist about a criminal case until the trial or linked trials are over and the juries have given their verdicts.
Section 2 of the Act limits the common law presumption that conduct may be treated as contempt regardless of intention: now only cases where there is a substantial risk of serious prejudice to a trial are affected.
Civil contempt
In civil proceedings there are two main ways in which contempt is committed: Failure to attend at court despite a summons requiring attendance. In respect of the High Court, historically a writ of latitat would have been issued, but now a bench warrant is issued, authorizing the tipstaff to arrange for the arrest of the individual, and imprisonment until the date and time the court appoints to next sit. In practice a groveling letter of apology to the court is sufficient to ward off this possibility, and in any event the warrant is generally 'backed for bail'i.e., bail will be granted once the arrest has been made and a location where the person can be found in future established.
The other way is failure to comply with a court order. A copy of the order, with a "penal notice"i.e., notice informing the recipient that if they do not comply they are subject to imprisonment—is served on the person concerned. If, after that, they breach the order, proceedings can be started and in theory the person involved can be sent to prison. In practice this rarely happens as the cost on the claimant of bringing these proceedings is significant and in practice imprisonment is rarely ordered as an apology or fine are usually considered appropriate.
UNITED STATES
Under the United States jurisprudence, acts of contempt are divided into direct or indirect and civil or criminal. Direct contempt is that which occurs in the presence of the presiding judge (in facie curiae) and may be dealt with summarily: the judge notifies the offending party that he or she has acted in a manner which disrupts the tribunal and prejudices the administration of justice. After giving the person the opportunity to respond, the judge may impose the sanction immediately.
Indirect contempt occurs outside the immediate presence of the court and consists of disobedience of a court's prior order. Generally a party will be accused of indirect contempt by the party for whose benefit the order was entered. A person cited for indirect contempt is entitled to notice of the charge and an opportunity for hearing of the evidence of contempt and, since there is no written procedure, may or may not be allowed to present evidence in rebuttal.
Contempt of court in a civil suit is generally not considered to be a criminal offense, with the party benefiting from the order also holding responsibility for the enforcement of the order. However, some cases of civil contempt have been perceived as intending to harm the reputation of the plaintiff, or to a lesser degree, the judge or the court.
Sanctions for contempt may be criminal or civil. If a person is to be punished criminally, then the contempt must be proven beyond a reasonable doubt, but once the charge is proven, then punishment (such as a fine or, in more serious cases, imprisonment) is imposed unconditionally. The civil sanction for contempt (which is typically incarceration in the custody of the sheriff or similar court officer) is limited in its imposition for so long as the disobedience to the court's order continues: once the party complies with the court's order, the sanction is lifted. The imposed party is said to "hold the keys" to his or her own cell, thus conventional due process is not required. The burden of proof for civil contempt, however, is a preponderance of the evidence, and theoretically punitive sanctions (punishment) can only be imposed after due process but the due process is unpublished.
In civil contempt cases there is no principle of proportionality. In Chadwick v. Janecka, a U.S. court of appeals held that H. Beatty Chadwick could be held indefinitely under federal law, for his failure to produce US$2.5 million as state court ordered in a civil trial. Chadwick had been imprisoned for nine years at that time and continued to be held in prison until 2009, when a state court set him free after 14 years, making his imprisonment the longest on a contempt charge to date.
Civil contempt is only appropriate when the imposed party has the power to comply with the underlying order. Contempt of court is considered a prerogative of the court, and "the requirement of a jury does not apply to 'contempt’s committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States.
DISTINCTION BETWEEN CRIMINAL AND CIVIL CONTEMPT
The distinction between criminal and civil contempt has been one of the most confusing and problematic areas of contempt jurisprudence. Some of this confusion results from the fact that criminal contempt can occur in either a criminal or civil proceeding, just as civil contempt can occur in either a criminal or civil proceeding. Moreover, single acts of contempt can result in both criminal and civil contempt sanctions in some cases.
The U.S. Supreme Court struggled with the distinction between civil and criminal contempt as early as 1911. Although Gompers v. Buck’s Stove & Range Co. continues to be the most influential case, the court has revisited this complex issue on several occasions. In Gompers, the court first acknowledged the difficulty in distinguishing between criminal and civil contempt.
In an attempt to draw a distinction between the two types of contempt, the court focused on the “character and purpose” of the sanction imposed. The court reasoned that a contempt sanction should be considered to be civil in nature it if is remedial and intended to benefit the complainant. The court, for instance, explained that a contempt sanction is civil if it is “intended to be remedial by coercing the defendant to do what he had refused to do.” Additionally, if the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court’s order.
In contrast with the purpose of a civil contempt sanction, the purpose of a criminal contempt sanction (e.g., an unconditional and determinate period of imprisonment or a fixed monetary fine) is to punish the contemnor and vindicate the authority of the court. Consequently, criminal contempt is punitive in character.
CIVIL LAW JURISDICTIONS
CONTEMPT OF COURT IN GERMANY
German courts wield many powers which a Kenyan/British lawyer would consider part of a court's judicial function to punish for contempt. An authoritative British treatise on German law has described these as limited, in that the German Judge does not possess the wide powers of punishment for contempt of Court which in English law are given to a Judge of a superior Court of Record. But since 1951 there has become manifest a certain tendency on the part of the German legislature to extend judicial authority in this field. In an instance of minor importance the effect of oaths of disclosure, which had been curbed in 1933, was fully re-established as a form of coercion for civil contempt. In 1951 and 1953, the authority of the Federal Constitutional Court was greatly bolstered against certain types of criminal contempt.
Maintenance of Order in the Court Room
The authority of civil and criminal courts alike to maintain order in the court room is specified in the Judiciary Act Sec. 176 of the act provides that, the presiding judge is charged with maintaining order in the session. It encompasses any measure needed to maintain order as well as any steps that become necessary because of some action that is out of order. Under this law, the power is confined to the court session itself i.e. to direct contempt. It may however extend outside the court room only for functions which are an integral part of the court session, as in a case where it might be necessary for the court to inspect the site of a crime.
Whoever, in matters pertaining to contentious jurisdiction or matters pertaining to the administration assigned to the courts, renders himself guilty of misconduct shall be punished by the court by a fine or custody for not more than three days.
According to the Judiciary Act the presiding judge fulfills a two-fold function in the court room. He directs the proceedings and exercises the police power. It is within his discretion to decide whether or not any occurrence calls for the application of such power. If he decides in the negative, the matter rests there. If he decides that measures are needed to maintain order and peace in the court, he is confined to such action which does not involve any punitive steps.
In general, the person affected by any exercise of this police power has no right to bring the matter up for decision by the full court, nor is there a chance to file a challenge or an appeal.
Power of the court to compel appearance or testimony by a witness
Both civil and criminal courts may take certain coercive measures against witnesses if a witness, properly summoned, fails to appear without proper excuse. One may be summarily sentenced to the costs occasioned by his failure to appear, to a fine for conduct out of order of from 1 to 1000 German marks and, in case the fine cannot be collected, to custody for not more than six weeks.
In case the witness fails to appear again, the same punishment may be re-imposed, but not more than twice altogether. The witness may file a challenge which, however, does not stay its execution. The procedures and punishments used against a recalcitrant witness in civil cases are similar.
Special protection of the federal constitutional court Against acts simila to criminal contempt.
The Federal Constitutional Court was established by Law of March 12, 1951. It passes upon such questions as the forfeiture of constitutional rights, the constitutionality of political parties, interpretation of the Constitution, and the like. This court was given special protection against acts which under Anglo-American concepts could be considered as contempt of court but in Germany are deemed specific crimes subject to trial in regular criminal proceedings. The law itself provides that any deliberate act in defiance of a decision of the Federal Constitutional Court or of measures taken in carrying out the decision shall be punished by imprisonment for not less than six months.
The basic provision of the Criminal Code provides that Whoever participates in public gatherings in the open air, or in demonstrations within the banned are about the building of a legislative organ of the Federation or of a land as well as of the Federal Constitutional Court and thus intentionally violates provisions which have been issued concerning the banned area, shall be punished by imprisonment for not more than six months or by a fine.
Power of the civil court to enforce private rights
German civil procedure recognizes two distinct phases in the administration of justice in civil cases. The trial proper, which terminates in a judgment establishing the existence or non-existence of the right claimed or denied in the complaint, has already been dealt with above with respect to criminal contempt. The remaining phase of proceedings is the execution proceedings, which includes the arrest proceedings and involves steps that resemble civil contempt procedures.
The execution proceedings are designed to enforce the civil rights or remedies established in the trial, by some form of constraint. The state has no need or interest here to vindicate its authority. The state, rather, puts certain instrumentalities of its power at the disposal of the creditor to force the debtor to fulfill his obligations.They include:
Coercive detention for not more than six months.
Punitive custody for not more than two years for violations of a court-imposed duty of toleration or forbearance.
Arrest of the body, defined as a means to secure the future execution of a money claim.
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