The two-year citizenship debacle involving Canada-based political activist and lawyer Miguna Miguna has exposed the Jubilee government’s soft underbelly when it comes to compliance with court orders.
While the Executive, led by President Uhuru Kenyatta, ought to lead by example in protecting the rule of law, its officers have defied court order upon court order, in what legal experts fear could plunge Kenya into authoritarianism.
In the majority of these incidents, senior State officers have brazenly committed contempt of court, in what has shaped up as supremacy battles between the Executive and the Judiciary.
Before defying High Court orders to allow and facilitate Dr Miguna’s return, State officers had refused to comply with several other directives.
•Producing Miguna in court
In February 2018, Justice Luka Kimaru ordered Interior Cabinet Secretary Fred Matiang’i, Principal Secretary Dr Karanja Kibicho and then Inspector-General of Police Joseph Bonnet to produce Dr Miguna in court.
This was after the self-declared General of the National Resistance Movement (NRM) was arrested but his whereabouts were unknown.
•Submitting Miguna’s passport to court
In the same year, the High Court ordered the then Director-General of the Department of Immigration, Mr Gideon Kihalangwa, to deposit Dr Miguna’s passport in court.
This was at the height of his deportation drama at the Jomo Kenyatta International Airport in Nairobi.
Orders not to deport the combatant barrister were also plainly disregarded.
•Holding MP Moses Kuria in assault case
Last week, a Nairobi court ordered the release of Gatundu MP Moses Kuria from custody in an assault case but the orders were defied.
Mr Kuria was arrested on Friday for allegedly assaulting a woman at Royal Media's studios on December 8, 2018.
•Refusing to pay victim of torture
In 2016, Justice George Odunga sentenced Interior Principal Secretary Karanja Kibicho to three months in prison for failing to honour summons to appear in court.
Dr Kibicho had been ordered to go to court in person to explain why the government had failed to pay Michael Mahugu two years after the court awarded him damages.
Mr Mahugu was tortured by police at Nyayo House in 1987 amid a heightened crackdown on dissidents during the Moi era.
The court awarded the victim Sh2.65 in 2014 as compensation, an amount that Dr Kibicho failed to pay.
Dr Kibicho did not serve the jail term.
•Failing to pay for KDF land
While serving in the Defence ministry, Principal Secretary Torome Saitoti disobeyed orders to pay a family that had surrendered their land for government use in 2006.
The court had awarded the family of the late Mr Johnson Onduko Makori Sh17.2 million for the piece of land in Mombasa. Mr Saitoti defied the order.
Justice Joseph Sergon sentenced Mr Saitoti to six months in jail after finding him guilty of contempt of court, without the fine option.
Mr Saitoti, who has since moved to Ministry of Planning in the same capacity, did not serve the sentence.
•Recruiting Cuban doctors
In June 2018, the labour court suspended the recruitment of 100 Cuban doctors after four Kenyan doctors went to court to block the move.
The four argued that thousands of Kenyan doctors were unemployed and that importing talent would only compound joblessness among trained doctors.
The government still went ahead to recruit the doctors contrary to the court order.
•Shutting downTV stations
Days before Opposition Chief Raila Odinga staged a mock swearing-in ceremony as the "people’s president" on January 30, 2018, the government had threatened to shut down private TV stations that would dare broadcast what it called a "treasonous" ceremony.
The government made good its threat when the Communication Authority (CA) switched off the signals of NTV, KTN and Citizen TV stations on the day of the swearing-in.
The activist was also frustrated at the CA's premises as he fought to deliver the orders.
ICT Cabinet Secretary Joe Mucheru and the then CA Director-General Francis Wangusi remained defiant as operations of the three stations remained paralysed for more than 10 days.
•IssuingOgieks with title deeds
In the build-up to the referendum in 2005, President Mwai Kibaki gave 12,000 title deeds to the Ogiek community residing around Mau Forest in Nakuru, Bomet and Narok counties.
In so doing, President Kibaki defied a court order barring the move even as the government heightened land reforms across the country.
Ironically, Uhuru Kenyatta, then opposition leader, castigated the President, accusing him of bribing the community by wooing it with title deeds ‘‘after sensing defeat’’ in the looming referendum.
Months earlier, then Chief Justice Evans Gicheru had cautioned government officers about disobeying court orders.
The then Law Society of Kenya President Tom Ojienda faulted Kibaki arguing that land reforms, spearheaded by then Lands Minister Amos Kimunya, were being done without any legal basis.
•Evicting the Sengwer
In March 2013, the High Court in Eldoret barred the government from evicting the Sengwer, a minority group from a forest in Cherangany Hills.
The injunction was later extended in November the same year.
But even with orders by the court, Kenya Forest Service personnel and police raided the forest, burning down houses and other property and kicking out the community.
The police, who were supposed to enforce the orders had, ironically, been deployed to carry out the evictions.
The recent cases of disobedience have resulted in concerns that the country is fast degenerating into lawlessness, as leaders condemn the government for failure to heed the law it claims to protect.
Thirdway Alliance party leader Dr Ekuru Aukot says the government’s failure to obey court orders is worrying.
"Are we going back to the tyrannical one-party State days of the Kanu era?"
Retired Chief Justice Willy Mutunga expressed similar concerns.
"What is happening to Miguna Miguna, Moses Kuria and many other victims of the disobedience of court orders is the inhumane mischief our constitution sought to cure," he tweeted, terming the breach of court orders "an unacceptable repeat of the inhumanity of past and present dictatorships".
In February 2018, lawyers threatened to boycott court processes for five days to protest perpetual violation of rights and disobedience of court orders by State and public officers.
The then LSK president Isaac Okero said that in disregarding the laws, the government had failed in its mandate.
"Fidelity to the law is the solemn and patriotic obligation of all. When a government shows contempt for the law, it become impossible for it to require citizens to respect the same law. Disregard of the law leads to anarchy," Mr Okero said.
"To disobey a court order is not only a violation of the constitution but also a dereliction of public duty," Mr Maraga said.
Deputy President Dr William Ruto on Sunday weighed in on the debate, warning that government officers defying court orders will ultimately pay the price.
"The Jubilee government is a government that respects the rule of law. Public officers must respect court orders. Any public officer who disobeys court orders will bear personal responsibility in the fullness of time," told a gathering in Narok.
"We cannot watch as public officers decide whether or not to obey court orders."