Post by Miguna on Oct 25, 2005 7:05:31 GMT 3
Defiance of court orders a precedent for anarchy
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By Miguna Miguna
Although the current Constitution does not explicitly state that the President is above the law, in reality, because of various fundamental weaknesses of the current laws, President Kibaki has conducted himself in a manner suggesting that he believes that he is, in fact, beyond any legal restrictions. The problem is compounded by the fact that the Wako concoction does not offer any control levers to the runaway presidential powers.
By publicly issuing title deeds to 12,000 members of the Ogiek community even after a High Court Judge in Nakuru had clearly ordered Government not to do so, President Kibaki demonstrated one significant danger of not having strong constitutional controls over the Executive.
President Kibaki had also reverted the Amboseli Game Reserve to the Maasai community. That came soon after Kibaki had promised Health minister Charity Ngilu relief food for the starving in Eastern Province for her stay in the Banana campaign. It is increasingly becoming embarrassing to watch the blatant, flagrant and consistent disregard of the laws of Kenya by this government and its chief executive.
Our worries and concerns are out of recognition of the fact that the President is supposed to be the custodian of both the laws and the Constitution of Kenya.
By openly breaking, disregarding and violating the very laws that he swore on oath to protect, safeguard and enforce, the President is courting anarchy.
The current trend shows why it is necessary, in a democracy, to separate the executive arm of government from both the Judiciary and the Legislature. The Executive is always prone to act with impunity wherever legal and constitutional controls are weak or lacking.
President Kibaki did not issue the 12,000 title deeds out of compassion. It would be very difficult for the Kibaki government to convince Kenyans that a valid court order was violated by the chief legal custodian of the Republic of Kenya because of his deep sympathetic concerns for the suffering of the Ogiek, or due to his inclination to give aid or support, or to show mercy for the suffering Kenyans. This government is not known for its sympathy towards the suffering Kenyans.
Then there is the resettlement of the people who were evicted from Mau forest. If truth be told, the evictees were rendered homeless by the police at the order of senior government officials. Kenyans still recall vividly the chilling remark of Lands minister Amos Kimunya that the title deeds they held were "mere pieces of paper" that the Government of Kenya did not recognize.
The timing of President Kibaki’s issuance of the 12,000 title deeds coincided with a spirited campaign by the Orange Democratic Movement to have Kenyans reject the Wako Draft Constitution on November 21.
Legally, the President should have absolutely no role in the determination, assessment or allocation of land. Being a politician, it is easy for his judgment to be blurred by secondary and irrelevant considerations. The sensitive issue of land allocation ought to be done by a professional body without any regard to party or political affiliations.
Needless to say, the Ogieks and the Mau forest evictees are but a small fraction of Kenyans who have been rendered homeless by direct or indirect actions by the former and current governments.
While some critics of this government have questioned why the Chief Justice did not advise President Kibaki not to disobey a valid court order, others, like Paul Muite, have argued that the President was not bound to follow an "illegitimate order." There are two problems with both positions.
Firstly, section 26(2) of the Kenyan Constitution states that "The Attorney-General shall be the principal legal adviser to the Government of Kenya." It is not the Chief Justice’s role to advise the Government on anything. The Chief Justice, like any other judge, is a judicial officer, and he can only deal with matters and disputes that are brought before him for determination or direction. If there was lack of advice or improper advice, that failure, like with the preparation of the Mongrel Draft, lies at the feet of Attorney General Amos Wako.
On Muite’s remark, one wonders how he does not realise that the only authority that can decide whether the order in question ought to be set aside or quashed, is the Court of Appeal, upon a proper review of the order. It is not up to Muite to tell Kenyans or President Kibaki which orders are proper and which ones are faulty.
Tragically, members of President Kibaki’s inner circle are continuing to follow his unwarranted, reckless and indefensible precedence of violating, circumventing and openly defying valid court orders. On Sunday, Kimunya directed some 3,000 people who have been ordered by the High Court to vacate the late JM Kariuki’s 800 acre farm in Ol Kalou to "stay put until the Government resettled them." In his usual cantankerous manner, Kimunya announced to the gathering that "the Government will not execute the court ruling," and as such, they should ignore the High Court eviction order. "You’d better start cultivating the farm," he said, amid cheers from the crowd.
It is obvious that the most trusted members of the Kibaki Kitchen Cabinet believe that they are not subject to any legal restrictions.
The argument being advanced by the Government’s apologists that the High Court cannot issue a binding injunctive order against the Government is not only legally incorrect, it is also logically implausible. The fallacy lies in the very construction of government.
There are three arms of government — the Executive, Judiciary and the Legislature. These three arms are supposed to be independent and separate from one another. In a functioning democracy, the three arms counter balance and check each other. Thus, if our Judiciary was truly independent, its orders would have to be obeyed by all and sundry, including the Executive arm of Government. In cases where a party, say the government, believes that an order is faulty, erroneous or that the court that issued it acted in excess of its powers, the only remedy open to the dissatisfied party is to seek relief from the Court of Appeal.
When Transport minister Christopher Murungaru’s visa was cancelled by the UK government, he did not simply ignore that decision and attempt to board the next flight to London. Even though the decision was an executive one, he followed the recognized legal channels by filing an application for judicial review of that decision.
Our political leaders must know that defying court orders could set in motion flagrant violations that can lead to anarchy.
* The writer is a Kenyan practicing law in Toronto, Canada
---------------------------------------------------------------
By Miguna Miguna
Although the current Constitution does not explicitly state that the President is above the law, in reality, because of various fundamental weaknesses of the current laws, President Kibaki has conducted himself in a manner suggesting that he believes that he is, in fact, beyond any legal restrictions. The problem is compounded by the fact that the Wako concoction does not offer any control levers to the runaway presidential powers.
By publicly issuing title deeds to 12,000 members of the Ogiek community even after a High Court Judge in Nakuru had clearly ordered Government not to do so, President Kibaki demonstrated one significant danger of not having strong constitutional controls over the Executive.
President Kibaki had also reverted the Amboseli Game Reserve to the Maasai community. That came soon after Kibaki had promised Health minister Charity Ngilu relief food for the starving in Eastern Province for her stay in the Banana campaign. It is increasingly becoming embarrassing to watch the blatant, flagrant and consistent disregard of the laws of Kenya by this government and its chief executive.
Our worries and concerns are out of recognition of the fact that the President is supposed to be the custodian of both the laws and the Constitution of Kenya.
By openly breaking, disregarding and violating the very laws that he swore on oath to protect, safeguard and enforce, the President is courting anarchy.
The current trend shows why it is necessary, in a democracy, to separate the executive arm of government from both the Judiciary and the Legislature. The Executive is always prone to act with impunity wherever legal and constitutional controls are weak or lacking.
President Kibaki did not issue the 12,000 title deeds out of compassion. It would be very difficult for the Kibaki government to convince Kenyans that a valid court order was violated by the chief legal custodian of the Republic of Kenya because of his deep sympathetic concerns for the suffering of the Ogiek, or due to his inclination to give aid or support, or to show mercy for the suffering Kenyans. This government is not known for its sympathy towards the suffering Kenyans.
Then there is the resettlement of the people who were evicted from Mau forest. If truth be told, the evictees were rendered homeless by the police at the order of senior government officials. Kenyans still recall vividly the chilling remark of Lands minister Amos Kimunya that the title deeds they held were "mere pieces of paper" that the Government of Kenya did not recognize.
The timing of President Kibaki’s issuance of the 12,000 title deeds coincided with a spirited campaign by the Orange Democratic Movement to have Kenyans reject the Wako Draft Constitution on November 21.
Legally, the President should have absolutely no role in the determination, assessment or allocation of land. Being a politician, it is easy for his judgment to be blurred by secondary and irrelevant considerations. The sensitive issue of land allocation ought to be done by a professional body without any regard to party or political affiliations.
Needless to say, the Ogieks and the Mau forest evictees are but a small fraction of Kenyans who have been rendered homeless by direct or indirect actions by the former and current governments.
While some critics of this government have questioned why the Chief Justice did not advise President Kibaki not to disobey a valid court order, others, like Paul Muite, have argued that the President was not bound to follow an "illegitimate order." There are two problems with both positions.
Firstly, section 26(2) of the Kenyan Constitution states that "The Attorney-General shall be the principal legal adviser to the Government of Kenya." It is not the Chief Justice’s role to advise the Government on anything. The Chief Justice, like any other judge, is a judicial officer, and he can only deal with matters and disputes that are brought before him for determination or direction. If there was lack of advice or improper advice, that failure, like with the preparation of the Mongrel Draft, lies at the feet of Attorney General Amos Wako.
On Muite’s remark, one wonders how he does not realise that the only authority that can decide whether the order in question ought to be set aside or quashed, is the Court of Appeal, upon a proper review of the order. It is not up to Muite to tell Kenyans or President Kibaki which orders are proper and which ones are faulty.
Tragically, members of President Kibaki’s inner circle are continuing to follow his unwarranted, reckless and indefensible precedence of violating, circumventing and openly defying valid court orders. On Sunday, Kimunya directed some 3,000 people who have been ordered by the High Court to vacate the late JM Kariuki’s 800 acre farm in Ol Kalou to "stay put until the Government resettled them." In his usual cantankerous manner, Kimunya announced to the gathering that "the Government will not execute the court ruling," and as such, they should ignore the High Court eviction order. "You’d better start cultivating the farm," he said, amid cheers from the crowd.
It is obvious that the most trusted members of the Kibaki Kitchen Cabinet believe that they are not subject to any legal restrictions.
The argument being advanced by the Government’s apologists that the High Court cannot issue a binding injunctive order against the Government is not only legally incorrect, it is also logically implausible. The fallacy lies in the very construction of government.
There are three arms of government — the Executive, Judiciary and the Legislature. These three arms are supposed to be independent and separate from one another. In a functioning democracy, the three arms counter balance and check each other. Thus, if our Judiciary was truly independent, its orders would have to be obeyed by all and sundry, including the Executive arm of Government. In cases where a party, say the government, believes that an order is faulty, erroneous or that the court that issued it acted in excess of its powers, the only remedy open to the dissatisfied party is to seek relief from the Court of Appeal.
When Transport minister Christopher Murungaru’s visa was cancelled by the UK government, he did not simply ignore that decision and attempt to board the next flight to London. Even though the decision was an executive one, he followed the recognized legal channels by filing an application for judicial review of that decision.
Our political leaders must know that defying court orders could set in motion flagrant violations that can lead to anarchy.
* The writer is a Kenyan practicing law in Toronto, Canada