Judges must learn to bat for government side all the time

Friday February 16 2018

Chief Justice David Maraga (left) converses with Inspector General of Police Joseph Boinnet during the swearing-in of National Police Service Commission commissioners on February 15, 2018 at the Supreme Court. The CJ said previously that he could not stop anyone from "swearing-in" Raila Odinga as the "people's president". PHOTO | JEFF ANGOTE | NATION MEDIA GROUP


Courts, and the judges who preside over them, need to recognise national security supersedes any law they uphold or orders they can make.

Given a choice between responding to petulant summons to appear in court over matters that have been overtaken by events and the emergency of dispatching hot samosas at a national security council meeting, the more urgent and imperative duty is obvious.

It is national security that provides round-the-clock guard for the persons and residences of judicial officers, pricks its ears when evil is being planned against them, and acts to disrupt the plots of the wicked.

Public security officials should not be distracted from listening in on plots of mass public suicide, illegal oaths and underground movements.

Once on the inside track of national security, one can tell in an instant what laws are useful and which ones are completely unhelpful.

For example, the High Court’s declaration that Canadian Miguna Miguna’s deportation was illegal even after he had declared himself to be a general in the proscribed National Resistance Movement can be respected but not complied with.


Government, working in the interests of national security, believes the deportation was legal and procedurally carried out even if the laws and procedures are yet to be written.

Once Mr Miguna had been deported from the country, producing him in court became a practical impossibility.

The judge made numerous rulings on the same matter, causing the busy people at national security to summarise them in written affidavits.

Unless judges want to say they have lost their ability to read, they should be content with the detailed written affidavits of the Inspector General of Police, the Director of Criminal Investigations and the Director of Immigration Services and cease demanding their physical presence in court.

The judge’s order that Mr Miguna’s passport be surrendered to the court within seven days cannot be in the best interest of the country, which exists above and beyond the reach of law.

The interests of justice and national security would not be served by the Inspector General of Police and Director of Criminal Investigations to appear in court at a time when the Law Society of Kenya was already holding public demonstrations to bring public odium upon their heads.

The LSK’s Yellow Ribbon campaign on willful disobedience of court orders by state officers prejudged the IG and DCI before they could be heard.

Since judges and magistrates are members of the LSK, it is clear they would be taking the side of his professional colleagues and peers.

Finding senior security officials to be in contempt of court, as happened in Justice Luka Kimaru’s court, is highly regrettable as it only punishes the taxpayer, in the event that a fine has to be imposed.

If the government had a choice in the matter, it would not respect people who reason like judges.

Regardless, the government’s own legal team is handling the matter of the court orders and will most likely be appealing against the decisions issued shortly.

Let it be remembered the judiciary almost burnt the country on September 1, 2017 when it nullified the result of the August 8, 2017 presidential election were it not for the match being snatched away from its hands.

Making orders that are not supportive of government — such as scheduling a Supreme Court hearing on a declared public holiday when judges are clearly resting — can only result in the judiciary collectively eating humble pie.

The government is still deeply hurt by the judiciary’s failure to issue an injunction against the illegal "swearing-in" of Raila Odinga as the People’s President, a failing only exacerbated by the Chief Justice declaring he could not stop anyone from administering the said oath.

The writer is a Programme Adviser, Journalists for Justice. The views expressed here are his own and do not reflect those of JFJ. [email protected]