Let me start by stating without equivocation that there can be no justification for disobedience to court orders. No person or organ, whether of government, opposition or private sector has the liberty to determine which court order is convenient to obey. While the focus in the last two weeks have been on the government’s refusal to abide by some court orders, the reality is this malady started infecting us a while ago. I remember Parliament ignoring court orders relating to the Judicial Service Commission and to Governors impeachments a while ago and many of us cheered them because it was politically convenient. The opposition has had its fair share of defiance of the courts including orders that barred them from demonstrations against IEBC. Again many of us cheered them because it was politically palatable. Now it’s the Executive’s turn and many are cheering them on because these acts are aligned to our political cause.
For many a Kenyan, our commitment to the sanctity of court orders moves like a pendulum, depending on our politics. Obviously, while defiance of the courts by any of these parties is unacceptable, the responsibility on the government is so much higher. As the ultimate custodian of the rule of law, a government that disobeys the courts starts us on a slippery slope it will not eventually manage. I emphasize this point as a prelude to the argument I want to propound in this week’s column and I do not wish to be understood as justifying disobedience to the courts.
My concerns have arisen as I have watched the courts in the last two weeks issue orders in a most reckless manner, especially on matters which, though litigating legal issues, arise from extremely partisan political positions. Case in point. The government shuts down some media outlets on the basis that there are security concerns relating to their continued management of information. A concerned Kenyan goes to court. The courts, without giving the Executive an opportunity to be heard, issues an order exparte requiring the immediate reopening of the stations. Now, the initial action may well have been Executive overreach. But any prudent court would have allowed the Executive, within even the shortest timelines, to appear in court and make its case. At the end of the day, however misguided it appears to its detractors, the Executive is in charge of national security. It is imprudent for the court to substitute its wisdom for that of the Executive without even bothering to inquire where the latter is coming from. What was so difficult in requiring the Attorney General to appear, even in camera, so the court would make an informed decision?
On the same day, several Kenyans turn up in court to complain about withdrawal of their firearm licences. Remember there is no entitlement to a firearm licence in Kenya. These licences are issued at the discretion of the Executive. Once again, without giving the licence issuer an opportunity to be heard, the courts stop the withdrawal of the licence. I could go on and on. What these exparte decisions by the courts on matters that are either tainted with political overtones or have security considerations do, is to reinforce on the Executive a sense of siege by the courts. After a time, the Executive will feel justified in defying the Judiciary on the basis that it is doing the opposition’s bidding. That may well be untrue, but on all matters that have political overtones, perceptions are everything.
Consequently, on matters where the the courts are being asked to expunge Executive action in the midst of high octave politics, the court must be seen to give fair opportunities for all parties to advance their cause before it makes its decision. That cuts both ways. Where an order is sought by government that unduly prejudices its opponents, the latter must also be accorded the fullest possible opportunity to be heard. Failing that, an apprehension that the courts have been captured or are playing populist politics will simmer, ultimately destroying one of the most important institutions in our young democracy, an eventuality we can ill afford.
- The writer is an Advocate of the High Court of Kenya