On 13th February, 2017, seven Kenyan doctors who are officials of the medics’ union were jailed for failing to call off a two-month strike by doctors at public hospitals. This precipitated a debate on how a country could condemn its brightest minds to prison.
Even as the government insists that the doctor’s demands are irrational, several large-scale corruption scandals exposed recently which implicated the Principal Secretary of Health (one of the individuals negotiating with the doctors) have brought many Kenyans to question the Executive’s commitment to ending corruption.
Another debate has ensued on whether the law in Kenya is applied uniformly and whether the very government usually honours the rule of law especially when court verdicts do not go their way.
Over the last four years, the executive has delayed or simply ignored various court verdicts and orders.
This week it was CID Boss Ndegwa Muhoro’s turn when the court had to issue arrest orders to compel him to appear in court to present a report which he never bothered to do contrary to Judge Lenaola’s order. Luckily for him, the Attorney General swiftly moved to court to have the order quashed.
On 29th November, 2016, the High Court ordered the Inspector General to arrest Interior Principal Secretary Kibicho for failing to enforce a judgment that required a Torture victim to be paid 2.65 million in compensation.
On 24th October last year, the High Court ordered the government to operationalise the Public Benefits Organizations (PBO) Act within 14 days. It is now over three months and the government has refused to obey the court order.
In August, 2015, Mombasa court issued an arrest warrant on Interior CS Joseph Nkaissery for the destruction of a ship (MV Baby Iris) which was used to traffic heroin worth over Sh20 million because – reason being that the ship was a crucial exhibit.
Back in 2014, the then Inspector General David Kimaiyo outrightly refused to enforce a court order requiring him to arrest P.S Mutea Iringo for failing to honour an award to a Tanzanian.
The NPS said “We do not want a case where the government embarrasses the government….we want to ensure it is done with civility and decorum,”
A common thread in all the above cases is that none of the arrest warrants were enforced. It is as if the courts exist in vain.
Clearly, this is a trend that is increasingly becoming common place. However, we have to recognize that when the rule of law and equality before the law is compromised, we get a dysfunctional organisation.
On the contrary, the state should be leading by example because if it does not, you really fear for the future, then you are really heading for trouble. Most likely, ordinary people will start disobeying the law.
Once a government flaunts court orders it undermines the legitimacy of the courts – not only in highly charged political matters but also in ordinary matters affecting ordinary citizens.
It is a calamity for every citizen – even if this may not at first be apparent to some citizens who might even, in a particular case, support the flouting of a court order and the lawlessness that it entails.
While it is the courts that protect and enforce the rights that are enshrined in the Constitution, it is government officials who must uphold and respect the rule of law.
Under Kenya’s constitutional design, the government and its officials and agents as well as individuals and private entities are accountable under the law.