No easy walk making Government pay

NAIROBI: It is a national disaster that thousands of students are coming into cross-fire between the Government and striking teachers.

The strike tragically brings to the fore a legal dilemma that has been brewing for decades – that of compulsive non-payment of due debts. This is further compounded by the Judiciary’s lackluster concern to matters of enforcing binding contracts.

It must be appreciated that the Government is the single largest consumer of goods and services in the country and the engine of economic activity.  Hundreds of contracts are entered daily – small, big and the mindboggling Anglo Leasing type of contracts.

Purchasing a ream of photocopying paper, a diary, a car, a spare part or  even a helicopter all have one thing in common; complex, rigid and burdensome red-tape.

Despite a web of stringent procurement and accounting methods, checks and balances, the reality is that the Government is the most dreadful paymaster.

The Attorney General (AG) retains exclusive control of the hundreds of non-payment cases filed against the Government.

So great is the workload and sheer amount of Government litigation that majority of cases are decided ex-parte, that is, with the opposing party being absent.

And another set of litigation relates to torts – civil wrongs – resulting from, for example, various forms of negligence or what is called “running down cases”.

The Government does not insure its vehicles – it has opted to defray the losses itself and yet again the AG is lumped with thousands of tort -based cases all over the 500 courts countrywide.

Thousands of judgments are passed against the Government, which by law must be filed against the AG. And herein lies the problem, explaining perhaps the genesis of the teachers’ strike.

After a judgment against the Government, the real uphill task of recovery begins.

Under Order 29 Rule 2(2) of the Civil Procedure Rules, no Government property can be attached.

Once a litigant gets an impotent judgment, he or she is forced to write to the AG begging him to pay. The roll-on effect is that another case has to be filed against the AG by way of judicial review ordering the accounting officers to pay.

Most courts, for the sake of self-preservation, choose not to order arrest of highly-placed officers.

Despite this common trend, a rare magical wand was recently waved by the courts; the Solicitor General and his Deputy were faced with jail and litigants did get their just dues.

Like the poor teachers, there are hundreds of paraplegic and grave injury cases and other successful litigants with horrific injuries who are blatantly ignored and disregarded by the Government justice machinery.

The trading and commercial community also suffers a similar fate of non-payment of age-old debts.

Talking of teachers, there has been another case for the retiring teachers who have a 43 billion judgment in their favour, but they have not been able to recover for the last seven years because the Government “has no money”!

If I as an individual do not pay my debts, and judgment is obtained against me, my goods can be auctioned.

I can be thrown into a civil jail; I can be made bankrupt and barred from holding a public office.

Coming to the Government, the notion of accountability is simply non-existent. One can literally do nothing.

Honest Kenyans are subjected to contrived and manipulative corruption-related methods, with some supermen having connections that can get you your multimillion dues, for a commission or brokerage – something the so-called commercial courts cannot do for years.

Our laws do not help the situation. The Government Proceedings Act, the Limitation of Actions Act, and other laws are all geared towards the Government getting interest-free loans even if it means millions are paid in legal costs.

Commissions such as EACC and TSC are now included in a broad definition of ‘government’.

The rationale of not being able to execute a judgment against the Government is given by Justice Lenaola in a recent case involving me thus:

“...It would not be in the public interest to allow execution and/or attachment against the Government and that public interest should in such an instance override an individual’s enjoyment.”

It is really perverse for the Government or quasi governmental bodies to disregard court judgments and the parties cannot be expected to passively suffer for years hoping that the big brother will magnanimously adhere to court orders.

Time is ripe to unemotionally address the plight of Kenyans whose rights remain suppressed in draconian laws – inconvenience, compassion or morality should not have a place if law is to be applied justly.