Power of Judiciary tested as Executive turns rogue

Saturday February 03 2018

Justice George Odunga presides over a case on January 24, 2018. He ordered the reinstatement of Dagoretti North MP Simba Arati’s firearm licence. PHOTO | EVANS HABIL | NATION MEDIA GROUP


The Executive and the Judiciary could be headed for a clash after the police, the Communications Authority and other agencies ignored various orders issued by judges in the last few days.

On Saturday, NTV, KTN News, Citizen TV and Inooro TV were not on air despite a court order that they be switched on after the regulator shut them down on Tuesday while Mr Miguna Miguna, the self-declared “general” of National Resistance Movement, was yet to be freed after securing a Sh50,000 cash bail.

A police source, who spoke in confidence, claimed there were “orders from above”— issued by phone — for Mr Miguna to be held longer in police cells.

But the apparent disregard of court directives has faced criticism and triggered debate on social media.


Pro-government lawyer Ahmednasir Abdullahi, for example, on Saturday tweeted:


“No matter how aggrieved and unhappy the Kenyan Government is, it must obey/adhere to court and switch on TV signal. As a constitutional democracy that is simply not negotiable.”

A senior government official told the Sunday Nation that the feeling in State House is that the judges who issued the orders went beyond their mandates.

The official cited the order by Justice George Odunga for the reinstatement of Dagoretti North MP Simba Arati’s firearm licence and his security while the case he has filed is being heard.

MPs are entitled to bodyguards by law and the issuance of a firearm is based on the determination by the police after assessing the capability and need of a person to have a firearm.

The bodyguards of National Super Alliance MPs were withdrawn because they accompanied their charges to Tuesday’s event at Uhuru Park, where the “inauguration” of Raila Odinga took place.

The reasoning of the police on that matter was that the court cannot compel them to give back the licence to Mr Arati if they think he is not fit to have it.

Mr Edwin Sifuna, Mr Miguna’s lawyer, told the Sunday Nation that the police bosses in Githunguri refused to release him on Friday evening on the basis of orders from their seniors.

He said the Inspector-General had been served with the court order as required and the police at Githunguri had simply refused to heed them.

Mr Miguna’s legal team plans to have another crack at setting him free Monday by going back to court.


He was in the meantime moved from Githunguri Police Station to an unknown location.

Mr George Morara, the vice-chairman of the Kenya National Commission on Human Rights, said the defiance by the Executive is setting a dangerous trend that amounts to the suspension of how a constitutional democracy should function.

“The continued disobeying of court orders is really not good for democracy.

"We need to work in a way that strengthens our institutions because, if it gets to a level where judicial officers start to think someone is undermining their authority, we will not have a country,” Mr Morara said.

He said the Communications Authority has also not shown evidence that it is working like the independent agency it is supposed to be.

On Friday, people believed to be police officers stopped activist Okiya Omtatah from accessing the institution to serve a court order and threatened journalists.

Mr Omtatah opted to pin the orders outside the gate.

The orders were also printed in the Daily Nation and The Standard newspapers on Friday ,but the activist had not asked the court to allow for substituted service through an advertisement in the newspapers.  

“What is happening now, the drama at the Communications Authority means again that those are just good pronouncements on paper and nobody is willing to enforce them,” Mr Morara said.

He said the perception by some in the Executive that the Judiciary is overreaching should be tackled in the right way, by taking the arguments to court.

“The government is the bigger one here. It has the instruments of State and it has the responsibility of deploying those instruments in a manner that maintains law and order, in a manner that Kenyans will respect the decisions that come from our institutions,” he added.

Some of the criticisms have come from the United Nations, whose Commissioner for Human Rights on Friday issued a statement criticising Kenya along with the Maldives and Myanmar for undermining human rights.

The commissioner cited the refusal by the government to allow NTV, KTN and Citizen TV back on air.

“We understand that this is in spite of an interim order by a Kenyan High Court instructing the government to allow the TV stations to resume transmission.

"We call on the government to respect and implement the judicial decision,” a spokesman for the commissioner said.

Separately, at the Communications Authority, suspended Director-General Francis Wangusi was on Friday blocked from accessing his office even after the High Court reinstated him pending determination of his case.

Mr Wangusi has challenged his three-month suspension by the board.

Once again, people believed to be plainclothes police officers barred his entry into the compound.

“They have locked the gate and are not talking to anyone. They are not saying who sent them," lawyer Benjamin Makokha, for Mr Wangusi, said.