Uphold rule of law or country goes to the dogs

There is a general feeling in the country that the Judiciary, the Executive and the Legislature are at cross-purposes.

The Legislature and the Executive are in further agreement that the Judiciary is overstepping its mandate by issuing injunctions against both the National Assembly and the Senate.

Parliament has responded to the Judiciary by ignoring all court orders and slashing the Judiciary budget.

The average Kenyan may be forgiven for thinking there is now a crippling paralysis in government.

Nothing could be further from the truth.

A fundamental issue of profound constitutional, political and societal significance that both the Legislature and the Executive fail to understand is the role of the Judiciary in a constitutional democracy.

The Judiciary, unlike the Executive and the Legislature, is neither an active nor an interested player in the political, judicial, economic and societal contests of the day.

For instance, unlike the Presidency and Parliament that engage in issues directly, the Judiciary is not a frontline player but a secondary or passive player.

The Judiciary, as an institution, has no interest in the cases that come before it.

It is Kenyans aggrieved by the decisions of the Executive, the Legislature or other Kenyans that petition the courts for redress.

Court orders and their habitual disobedience by the Executive and the Legislature have now reached a crisis point.

The Judiciary as an institution has not responded to these breaches of the law.

It is not the duty of the courts to respond to the disobedience of court orders.

Again it is Kenyans, on whose behalf the order was issued, that should move the courts appropriately.

The courts, once moved, have enormous powers to punish.

It is here that a lot of litigation and political conflicts will occur in future.

And it is here that the Judiciary, in further progressive implementation of the constitution and in defence of the constitution, must lay a marker and decisively remedy the burning issues of the day.

They are two issues that will shape politics in Kenya and the place of the rule of law in an epoch defining manner.

The first is how to punish individuals, whether mighty or insignificant, who disobey court orders.

Disobedience of court orders is equivalent to political treason against the state.

It is a stab in the very heart of the rule of law. It is an assault on the constitution.

It is subversion of law and order. It is the door to anarchy.

A civilised society is principally based on the sanctity and inviolability of court orders.

A court order might be wrong in law. But just imagine if everyone served with a court order had the luxury to determine for himself the legal correctness of the order?

Kenyans who want to punish those who disobey court orders will overwhelm the courts in the new future.

This is a challenge the Judiciary must adequately prepare for.

This country will go to the dogs if the current trend of disobeying court orders is not stopped, and stopped quickly.

The courts must send to jail those who think they are above the law.

Kenyans don’t want a Judiciary that grants very progressive judgments but can’t punish the transgressors of those same orders.

The second area of serious litigation will involve petitions in court that seek the removal of state employees that break the law.

Here we are not concerned with elected leaders for the courts can only remove them through election petitions.

Here we are concerned with those appointed to offices.

Two powerful Kenyans are already in sight for this type of petition.

These are the Speakers of the Senate and the National Assembly.

Both were beneficiaries of the benevolence of the President and the Deputy President.

Both have habitually disobeyed court orders. National Assembly Speaker Justin Muturi is on record as saying he will not obey idiotic court orders.

Are such state officials in breach of Article 10 and Chapter 6 of the constitution? Isn’t their disobedience of the law a subversion of the constitution? Can they hold offices in the light of their contempt and subversion of the constitution?

Senior Counsel Ahmednasir is the publisher of Nairobi Law Monthly