LSK sets out to end breach of court orders by the State
What you need to know:
The taskforce was set up as part of LSK’s ‘Yellow Ribbon’ campaign to protest the rising impunity.
Once it has completed its work, the team will present its report to President Kenyatta's office at Harambee House and the Judiciary for action
The 'Yellow Ribbon' campaign included a march by lawyers across the country and wearing of a yellow ribbon to protest state’s numerous cases of disobedience of court orders and rights abuse.
The Law Society of Kenya (LSK) has so far documented 16 instances of willful disobedience and rights violations by state and public officers.
And with the collation of the incidents still ongoing, the taskforce that is leading in the initiative expects more.
BOINNET
“Disobedience of court orders and ultimately contempt of court by extension is an abuse of the sovereignty of the people of Kenya and as such appropriate punishment is merited,” the taskforce chaired by Chris Gitari, who heads the International Center for Transitional Justice Kenya office, says.
“For public officer removal from office and jail times are befitting and appropriate punishments.”
The taskforce was set up as part of LSK’s ‘Yellow Ribbon’ campaign to protest the rising impunity.
Once it has completed its work, the team will present its report to President Kenyatta's office at Harambee House and the Judiciary for action
The 'Yellow Ribbon' campaign included a march by lawyers across the country and wearing of a yellow ribbon to protest state’s numerous cases of disobedience of court orders and rights abuse.
Not surprising, Inspector-General of Police Joseph Boinnet tops the list of deliberate court-order violators with his arrest and eventual deportation to Canada of fiery lawyer Miguna Miguna.
MIGUNA
In Mr Miguna’s case, the taskforce has documented three court orders that the state disobeyed.
These are the orders issued by Justice James Wakiaga on February 5, in which he ordered Mr Boinnet and the director of criminal investigations to produce Mr Miguna in High Court, Nairobi, or show cause why they should not be held in contempt.
Instead, the State chose to arraign Mr Miguna before a Kajiado magistrate who again ordered that the lawyer be taken to the High Court in Nairobi.
“This was not complied with. Instead, his passport was revoked and deported…,” the report states.
The order suspending Interior Cabinet Secretary Fred Matiang’i’s gazette notice declaring the National Resistance Movement illegal and the other facilitating Mr Miguna’s re-entry into Kenya has also not been complied with.
“By having courts punish public officials when they are in contempt they communicate to society that Kenya is country guided by Article 10 National Values of the Rule of Law,” the task force notes.
11 KENYANS
“Further considerations of public policy underlie contempt of court jurisdiction generally, the protection of the administration of justice and maintenance of the court’s authority. Contempt of court therefore can be said to offend the fundamental supremacy of the law.”
Some cases pf disobedience of court orders date as far back as 2008 and 2009.
The 2008 case relates to Petition No.822 of 2008, which was an application by 11 Kenyans who the court found were arrested by Kenyan security forces, held in custody unlawfully, sent to Somalia and Ethiopia without following due process, and tortured while in the custody of Kenyan, Somali and Ethiopian forces.
They had been arrested allegedly on terrorism claims.
In that matter, Judge Mumbi Ngugi made monetary awards to each of the petitioners, all coming to Sh34.5 million.
The LSK taskforce found that “the principal secretary has neglected, failed or refused to comply notwithstanding persistent entreaties and pleas from the applicants.”
MBOKO CASE
Meanwhile, the state is also yet to implement the court orders that it pay a former soldier, Charles Gachathi Mboko, a sum of Sh3.5 million being general and exemplary damages for “torture, degrading treatment and unlawful confinement by agents of the government of Kenya for the 107 days that he was unlawfully incarcerated.”
“A worrying trend beyond the Miguna Miguna case emerges if analysed against a series of money decrees ordered against the State for abuse of rights ranging from torture and illegal detention,” the task force states.
“In tens of cases under examination concern is mounting amongst legal practitioners on the willingness of government to meet money decrees issued against them by courts for violating the rights of Kenyans.”
The state is also yet to implement the orders of Justice Onguto, who recently collapsed and died, that it implement the Public Benefits Organisation Act.
The Act was passed and assented to in January 14, 2013 with a view to overhaul the regulation of NGOs in the country, including replacing the NGO Coordination Board with a new entity.
