Executive and Judiciary on collision path - Daily Nation

Ignoring orders puts Executive and Judiciary on collision path

Tuesday February 6 2018

Activist Okiya Omtatah

Activist Okiya Omtatah outside the gate of the Communications Authority of Kenya on February 2, 2018 where he had gone to deliver a court order switch back major TV stations which had been switched off. PHOTO | FRANCIS NDERITU | NATION MEDIA GROUP 

More by this Author
More by this Author

The Judiciary and the Executive are headed for a clash following the latter’s disobedience of court orders.

Failure to free National Super Alliance (Nasa) activist Miguna Miguna, as ordered by Justice James Wakiaga on Friday was not the first time the government was put on the spot for disobeying directives by a court.

Other than failing to release Mr Miguna or produce him in court, the government also ignored an order directing two Cabinet secretaries to restore the signals TV stations switched off on January 30.

Justice Luka Kimaru expressed displeasure Monday when Mr Miguna was not produced in court.

Mr Miguna’s lawyer John Khaminwa urged the court to take action.

“Obedience is a quality we cannot negotiate with magistrates and judges,” Dr Khaminwa said.

“No one is above the law. The court should find the Inspector-General of Police guilty of contempt.”

A judge recently said disobeying court orders was sending wrong signals to Kenyans and the world in general.

“When the decision to obey particular court orders are left to the whims of the parties, public disorder and chaos are likely to reign supreme yet in the preamble to our Constitution… we recognise the aspirations of Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of the law,” Justice George Odunga said.

The order to restore TV signals was directed to Interior CS Fred Matiang’i, his ICT counterpart Joe Mucheru and the Communications Authority of Kenya.

Five days later, NTV, Citizen and KTN News were still off air.

Mr Okiya Omtatah, who had obtained the order, went back to court and filed contempt charges against the ministers and the authority.

In an application certified as urgent, Mr Omtatah said the cabinet secretaries and the entire CA board should be cited for contempt, arguing that they scandalised or lowered the judicial authority.

“If not stopped, the government will be undermining the cause of justice and the rule of law,” he said.

The activist said he filed the contempt proceedings to safeguard the rule of law and to ensure the court orders or directives were complied with.

Dr Karanja Kibicho, Mr Saitoti Torome, Ms Monica Juma and other principal secretaries have also disobeyed court orders in the past.

“When constitutional safeguards...are destroyed by being whittled down and judicial officers are put at the sufferance of the Executive or at the whims of the Legislature, the independence of the Judiciary is the first victim,” Justice Odunga said.

“It must always be remembered that...one of the rights and fundamental freedoms which cannot be limited is the right to a fair trial.”