Where we lost the plot in respect to the courts and rule of law

By Timothy Bosire

Impunity is at last ruling Kenya. Kenyans didn’t elect it but was installed by those who used it to twist democracy and elections to grab power in the past. It has now overrun us and is making even Kenya’s top leadership to speak in tongues. Due to rampant disobedience of court orders, the Executive, Legislature and Judiciary are vividly having their awkward “day of Pentecost” in reverse gear! The original “day of Pentecost” brought good tidings to Christianity; but this one of ours spells doom.

The current tiff was flowered by the Senate’s apparent refusal to heed a court order to defer impeachment proceedings against former Embu Governor Martin Nyaga Wambora. Somehow on this, even the National Assembly appeared to close ranks with the Senate despite both having been smarting from an earlier fall out relating to a Supreme Court advisory, which the authorities at the National Assembly had rejected in a long standing superiority tussle. Consequently, governors rejected senate summonses to defend audit and fiscal queries, making the Executive join the fray calling for accountability and respect for constitutional institutions.

The ensuing exchange became a rather compelling national debate. The Speakers of the two houses decreed that Parliament reject “silly court orders”. But just before Kenyans rose up in protest to reprimand the Parliament Oligarch’s for belittling the Judiciary, Chief Justice Willy Mutunga shot himself in the foot when he answered back: “Court orders, unless set aside by a higher court, ought to be obeyed “however idiotic or unconstitutional.”

He let the “evil cat” out of the bag. The Speakers and other Parliamentary players fired back with “Parliament will never obey idiotic court orders”.

The Executive followed with an “ominous silence in the raging exchange” that spoke volumes. Impunity had at last effectively subdued us. Unless this changes, the courts have been rendered toothless in handling the Executive and the Legislature. Hence, wananchi will be denied recourse in disputes with the two arms of government.

Effectively, this signals the institutionalisation of anarchy and the actual end of the rule of law.

Question is: “Where did this mess begin? Where did the rain start beating us? Of course, “at independence”!

That is when Kenyan impunity was invented, nurtured and protected. That is when our first leaders rejected responsibility and crafted a governance structure where the country’s institutions and population were put at the mercy of the Executive and more so the presidency. What we are crying about today: disrespect for the courts; is just a segment of this mess. It has just come of age and is manifesting itself openly.

The irony of this conquest by impunity is that the Founding Fathers presided over its invention and early growth, their favourite disciples at the helm watered and protected it and the sons are the inheritor (though they have promised to tackle it) of this huge mature tree of impunity.

Even the current public service wage bill crisis has its roots in this “project impunity”. It was courted through political patronage, populism and their trademark roadside declarations and decrees without commensurate planning or economic productivity.

The new Constitution was to cure this, but it is unravelling before our own eyes. We are suffering the tragedy of pushing reforms without reformists! All key areas that the new Constitution prescribed immediate reforms have been compromised in big ways.

The early signs of trouble came up when the High Court ordered the government in 2012 to abolish the Provincial Administration to comply with the new Constitution passed in 2010. It shocked many when, even with the Attorney General and then Prime Minister acknowledging the court’s verdict and resisting pressure to appeal, the Office of the President defied and hired private lawyers, outside the norm to appeal. To date, they have refused to restructure or do away with the unit.

In the face of all these the Judiciary must start a self rescue mission by carrying out a nationwide audit of all court rulings, orders and injunctions which have been disobeyed with impunity over the years and go after the offenders ruthlessly.

Let those claiming some orders are not implementable explain the same in the courts with justifications drawn from the Constitution but not in political rallies, seminars or in debating chambers.