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We must respect court orders to preserve our democracy and rule of law

By Demas Kiprono | December 2nd 2021

Every time a court order is violated or ignored by public officials, judicial authority is eroded. [Elvis Ogina, Standard]

Head of the Directorate of Criminal Investigations (DCI) George Kinoti was convicted for contempt of court and sentenced to four months imprisonment last week.

However, going by recent history, it is not likely that Kinoti will go to jail. Over the years, many government officials have ignored court orders in one way or another. These includes orders stopping evictions, deportations and those awarding damages to victims of rights violations. Observers note that the Miguna Miguna case demonstrates the contempt executive holds for courts.

Apart from being a vital foundational principle in our constitution, the rule of law is internationally recognised as one of the preeminent indicators of a functioning democratic society.

It points to the existence of a legitimate 'social contract' binding a people to a state or government. The State's legitimacy is based upon the consent of its people who submit to its rules, norms, and institutions.

In return, the State protects their lives, rights, and property. As with any contract, the theory holds that the governed can withdraw their consent if the government breaches the agreement or begins playing by a different set of rules. It is why we pay taxes and fines, agree to stop when police ask us to, recognise the authority of the government, officials and policies without coercion or compulsion.

The World Bank views justice and the rule of law as crucial for fostering a healthy business environment, enhancing growth by boosting investment confidence, protecting individual and human rights and restraining abuse of power.

Moreover, countries with predictable, reliable justice systems enjoy more foreign investment because they believe their interests are protected. The rule of law requires the procedural and impartial administration of laws.

However, contrary to assumptions, the rule of law does not simply espouse the majority's wishes. Instead, it considers the wishes of the majority while abiding by a set of rules and procedures.

As a result, the Judiciary is the only organ mandated with interpreting the legality of Executive or legislative actions to ensure that they align with the constitutional dictates on law and procedure. Though sometimes inconvenient, the expectation is that political elites, members of the Cabinet, senior government officials, police officers, judges and the rich comply with judicial authority just as any other member of society.

After a very consultative process, Kenyans birthed a new ‘social contract’ in 2010 that equally bound all people regardless of political affiliation, class, tribe, religion or other differences.

Any breach of the expectations of the contract threatens the entire agreement and the aspiration of all Kenyans. When public officials violate legal norms, they communicate that they are above the laws that bind the citizens, meaning that citizens' are inferior to them.

But, on the other hand, they demonstrate equality and accountability to their fellow citizens when they respect the law. As a legal principle, when the law treats people differently, there must be public reasons to justify the different treatment.

For example, by law, the president is immune from criminal prosecution or civil action while in office to free him from any impediment in leading the country. Conversely, police and military officers cannot participate in labour strikes or form unions to always safeguard Kenya’s national security.

Every time a court order is violated or ignored by public officials, judicial authority is eroded. Therefore, the three co-equal arms of government must respect and complement each other to protect Kenya from anarchy.

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