Making And Breaking The Law: Justice In The Wake Of Disobedience Of Judicial Orders – A Paper Presented At Law Society Conference On 14th August, 2014 By Gibson Kamau Kuria, S.C.

MAKING AND BREAKING THE LAW: JUSTICE IN THE WAKE OF DISOBEDIENCE OF JUDICIAL ORDERS – A PAPER PRESENTED AT LAW SOCIETY CONFERENCE ON 14TH   AUGUST, 2014 BY GIBSON KAMAU KURIA, S.C. In a paper which was published in the Daily Nation on 27th February, 2014, this writer  addressed the  issue  of  disobedience of  judicial  orders.  He  made  two observations. The first one is that the judiciary has been discharging its judicial function as a custodian of the Constitution and the people’s rights. He stated as follows, The truth is that the Kenyan Judiciary has acted in an exemplary manner since the new Constitution came into operation in 2010 ... it  has observed the high standards which are  maintained by  democracies. The  Judges have served as true guardians of the Constitution.1 The second one is that the executive, the legislature and the other organs of government are obliged to obey court orders, if they rule of law is to be upheld. On this, he said, In a democracy, all individuals and institutions must obey court orders. Courts have said that the simple and only view is that an order of the court must be obeyed and that those who wish to get rid of it must do so by the proper course of appeal or applying for it to be set aside. For as long as it exists, the order must be obeyed and  obeyed to  the  letter ...  In  a  country where court orders are not obeyed, it is chaos, not order, which reigns. For this nation to  be  as  great  as  the  Kenyans want  it  to  be, this truism must be given effect. Well done, Kenya Judiciary. The High Court has acted commendably in both  Martin Nyaga Wambora and 4 Others v Speaker of the Senate and 6 Others2  and Judicial Service Commission v Speaker of the National Assembly3  cases. They nullified actions of the Senate, the National Assembly and the President which had been taken in disobedience of court orders. In the latter, a five judge bench comprising Hon Justice Mwongo, Hon. Lady Justice Omondi, Hon. Lady Justice Meoli, Hon. Lady Justice Mumbi Ngugi and Hon Justice Chemitei stated as follows, 94.     The President’s actions were predicated on actions taken by the National Assembly resulting in a petition to the President under Article 251(3). The validity and bona fides of this petition is in contention. If, as the Petitioner contends, it  was  invalid for  having been  the  result  of  a process  in  Parliament  that  took  place  in  violation  of  a Court  order,  then  the  President’s acts  would  have  been based on an invalid act; and as the Court observed in the case of Clarke and Others v Chadburn and Others [1985] 1 ALL ER 211, an act done in wilful disobedience of a Court order is both a contempt of Court and an illegal and invalid act which cannot effect any change in the rights and liabilities of others. (See also the decision in Commercial Bank of Africa Ltd v Isaac Kamau Ndirangu (Civil Appeal No. 157 of 1995 {1990 – 1994} EA, 69). 95.    We are further bolstered in our finding on this issue by the decision of the High Court in Hon. Mr. Justice Joseph Mbalu Mutava v  The Attorney General and  The Judicial Service Commission High Court Petition No. 337 of 2013 where the Court had no hesitation in making orders invalidating the  appointment of  a  tribunal by  the President, even though he was not a party to the matter before it. Through these two decisions, among others, the High Court has indicated its determination to uphold the rule of law. His views on that subject have not changed. Consequently, this paper does not address that subject. Instead, it addresses the general subject of breaking the law which has created the prevailing insecurity in the country.The recent Mpeketoni killings raise important questions of constitutional theory and practice, reconstruction of Kenya, transformation of the public service in general and specifically, the security organs and also constitutional history and statecraft. It also raises the issue as to what acceptable political behaviour is in a democracy of the kind Kenya has chosen to be. These should be debated. In this paper, I make my contribution. The national security organs ought today to undertake to serve as well as any such organs function in old democracies and strictly in accordance with Article 238(1). That article states that national security is the protection against internal and external threats to Kenya’s integrity or sovereignty, its people, their rights, freedoms, property, peace, stability and prosperity and national interest. That protection was not seen at Mpeketoni a week ago and is also yet to be realized in full even after security forces moved to that place. It was absent from Westgate in September last year. It was not seen in Tana River District in 2012. It has not been seen in Nairobi, Mombasa and Wajir where Kenyans have been killed by bombs and terrorists. Article 239(1) states that the security organs are the Kenya Defence  Forces,  The  National  Intelligence  Service  and  the  National  Police Service. Article 239(2) states that the primary object of the national security organs is to promote and guarantee national security in accordance with the principles mentioned in Article 238(2). Since the Constitution came into force, the performance of the National Intelligence Service and National Police Service has greatly fallen short of the citizens’ expectations. Kenyans who pay their salaries are disappointed by the services which they are getting from their servants. That performance is unacceptable. They must pull up their socks. Kenyans however, have one consolation. That is the fact that the prevailing insecurity  is  coming  at  a  time  when  they  have  a  Constitution  for transforming their society.  The insecurity has not come about because of a bad Constitution. It  has  come  about  because  of  bad  practices  of  the  past  which continue.  When they made the Constitution in 2010, they foresaw this kind of insecurity.   Article 232 of the Constitution which describes the values and principles of the public service states that these include high standards of professional ethics, responsive, prompt, effective, impartial and equitable provision of services and fair competition and merit as the basis of appointments and promotions. Insecurity is there because these values are conspicuous from their absence, in the security organs. If these values had been given effect shortly after 2010 there would be no insecurity in the country.  Insecurity  will  be  a  thing  of  the  past  when  the  Constitution  is implemented fully in the public service. There is urgency in ensuring that these values are embraced by them and all the others who are in the public service. The security organs which were in  Mpeketoni are not  the ones envisaged by  the Constitution. As I indicate below, the implementation of the Constitution which has taken place to date has not been accompanied by a transformation of the public service in which the police serve. Transformation is very badly needed. The Mpeketoni violence of June, 2014 might have occasioned to the country’s tourism industry identical damage to that which was occasioned by the 1997 Likoni violence. It was only after the change of administration in 2002 that the industry recovered. That violence has damaged the country’s image and also that of our security system. In view of the killing of over 60 people in Tana River District in  2012, the Westgate Mall in  September last year and  the sporadic killing of many people in Wajir and now the killings at Mpeketoni, Kenyans are spending much time thinking about the causes of that violence and where it will lead to. Some facts are undisputed. The security organs did not come to the assistance of Mpeketoni because the officers there did not have orders to move to the places where their services were needed. Lamu Town which has a big police force did not take action until it was pressurized to send officers to Mpeketoni. Even after the police arrived at Mpeketoni at mid night they did not engage the attackers. The security organs were lethargic or  apparently unwilling to  take action lest politicians jeopardize their careers. The objectives of attackers there, as in the case of 1991 to 1997 and 2007 to 2008 violence, included displacing some Kenyans from that area. The attack of a police station and banks was a symbolic attack of the Kenyan nation. It challenged the territorial integrity of the nation. It questioned the right conferred to the Kenyans by Article 40 of the Constitution to acquire property of any description in any part of Kenya. At page 224 of its report, the Waki Commission noted, in 2008 that there were threats of eviction of upcountry people especially Kikuyu, Luo and Kamba residing within Kipini settlement Scheme in Malindi4.  It also questioned the guarantee to every Kenyan by Article 29 of the right to freedom and security of the person. As in the case of the violence of 1990s and also of early 2008 referred to above, that violence was preceded by careless talk of politicians in pursuit of power. The Report of the Select Parliamentary Committee to Investigate Ethnic Clashes in Western and Other parts of Kenya, 19925 and the Report of the Judicial Commission appointed to inquire into Tribal Clashes in Kenya6 make this abundantly clear. In 1990s violence was used to conserve power in the hands in which it was. Kenyans are now waiting for all those who are responsible for security lapses and also for the actual killings to be prosecuted. They are also waiting for those who aided and abetted the violence to be charged. The Gare/Degodia clan fights in Wajir have of late also claimed many lives. They have been having these fights for a long time. The state has failed to provide them with the requisite protection which a democratic state promises its citizens. For more than 20 years, cattle rustlers in Pokot and Turkana Districts have also killed many people and stolen animals.   Those who value human life have been embarrassed and pained by the realisation that the loss of lives in that part of the country has not attracted as great concern as it ought to have done.  Killings in other parts of the country attract condemnations which those in those areas do not. The government has not formulated and implemented a policy of eradicating the culture/custom or practice of livestock theft. One would have expected the police, the prosecution to work together and eradicate the lawlessness in that part of the country. A society governed by the rule of law cannot countenance such a practice which is  inimical to civilized life. Although it  kills  as  much as  does political violence, violence in those areas has wrongly been viewed as normal. It is high time that the same attitude were adopted towards extra state violence. In Pokot and Turkana Districts firearms are used to confiscate livestock. One hears of programmes to disarm the citizens but little comes out of them. A holistic approach is required to the use of the legitimate force to protect human life and property. Long before the 2007 post-election violence there were three High Court cases which evidenced the reluctance of the executive branch to use its  legitimate  force  to  enforce  the  Constitution  generally  and  specifically,  to protect property. The first one is the well-known  Waitiki7case is one where an  owner of  land is  being persuaded to  accept compensation from  the state because it is reluctant to use legitimate force to enforce property rights. In his case, the Court on 8th  November 2001 ordered the Commissioner of Police to move into his farm which is comprised of L.R Mombasa/Mainland South/Block I/363, L.R Mombasa/Mainland South/Block I/1031, LR Mombasa/Mainland South/Block V/109 and L.R Mombasa/Mainland South/Block V/110 and evict trespassers upon the same pieces   of land, arrest, investigate and cause prosecution of the trespassers   who have destroyed and damaged houses and property and plants and offer security and maintain law and order in the suit land. It did so  after making the finding as a fact  that a group of people claiming, without any proof, to be local inhabitants, went into private land  belonging  to  Mr.  and  Mrs.  Waitiki,  invaded  it,  expelled  the owner,  vandalized  his  property,  occupied  the  land  by  force  and started benefitting from it. It observed that that was a re-enactment of George Orwell’s Animal Farm, it further observed that the invaders cited reasons in  justification of their acts saying that they did not recognize any legal right over this land other than theirs and that their ownership rights superseded any legal rights the owners might show or might have and further that they disclaimed the title deed issued under any statute as evidence of ownership. The court observed that the applicants reported the actions of the invaders to the District Officer, Likoni, OCPD, Mombasa, OCS Likoni, the Provincial Commissioner, Coast and the  District Commissioner, Mombasa and  the  local  MP’s,  but  no  action was taken. Thirteen years after it was made, this order has not been enforced by the executive arm of the government. The Chief Executive in Kenya has not done what President Eisenhower did in 1957. He sent federal troops to the State of Kansas  to  enforce  the  decision  of  the  Supreme  Court  in  John  Aaron  – v- William G. Cooper8. In that case, the President of the United States of America sent to a school in the state of Arkansas to deal with a crowd of demonstrators who  were  preventing African  Americans from  exercising their  right  to  equal treatment in provision of education. The crowd was part of extreme public hostility   which   had   been   created   by   politicians   who   were   opposed   to desegregation in  schools.  The  court  observed  that  in  that  case,  it  was  state officials who were spearheading disrespect to the Constitution. Similar enforcement of the Constitution is yet to be witnessed in Kenya.  A ruling which was delivered on 14th July, 2014, in the  Waitiki case could set the stage for the upholding of  the  Constitution the  way  it  was  upheld  in Aaron  v  William Cooper. Honourable Justice Edward Muriithi ordered the Applicant to serve the court order on the Inspector General of Police and the Cabinet Secretaries for Lands and Internal Security. The second case comes from Meru, Methodist Church in Kenya Trustees Registered v Attorney General9 is a case where on 13th  June 2006, about 1,000 people used force to shut down a dispensary which belongs to the Petitioner. When the Police were asked to provide protection, the local police station which did not seek re-enforcement, sent only 5 to 7 police officers to deal with that group of people. They merely pleaded with them to leave but they were ignored. The Police did not see the need to protect the Constitution with a larger force supplied by other police stations. It appears to have been reluctant to confront a lawless group of people. Two years later, the Executive branch of the government started arranging to take the dispensary from the Petitioner which petitioned for the enforcement of its rights. Its petition was heard and allowed by Honourable Lady Justice Kasango who issued the following orders – 1.That it be and is hereby declared that the Petitioner is the owner of Plot No. 5118 within Upper Athiru Gaiti Adjudication Section. 2.That the District Land Adjudication and Settlement Officer Igembe District be  and  is  hereby directed to  record the Petitioner as the owner of that Plot No. 5118, Upper Athiru Gaiti Adjudication Section. 3.That an order of certiorari is hereby issued to call to this court  and  quash  gazette  No.  1640  dated  23rd   February, 2007 whereby Kiraone Dispensary was gazetted as an approved institution under section 22(2)(b)  of the Medical Practitioners and dentists Act chapter 253 of the laws of Kenya. 4.That  a  permanent  injunction  be  and  is  hereby  issued against   all   the   respondents  their   servants,   agents   or anyone claiming under them from interfering with the running by the Petitioner of Kiraone Dispensary on Plot No. 5118, Upper Athiru Gaiti Adjudication Section. 5. That the officer in charge of Police station near Kiraone Dispensary do afford and provide the Petitioner, its employees and agents security as they provide health services to the community of Kiraone Dispensary. 6.That the 3rd  4th  and 5th  Respondents do pay the Petitioner  Kshs. 3,000,000/= as general damages. 7.That the respondents do pay the Petitioner’s costs The Church is still out of its property 8 years after the episode despite the fact that a judgment was delivered in its favour on 22nd  October 2010. The State obtained a stay of execution. The Police adopted the same attitude in the Rift Valley when land owners sought protection when the Post-Election Violence broke out. They (the Police) did not confront the attackers. The third case is Roshanali Karmali Khimji Pradhan vs. The Attorney General. The Plaintiff was an owner of a farm known as Ziwani Farm who sued the government for breach of its statutory duty and negligence which resulted in the destruction of his farm. He claimed damages. Between 15th  May 1997,  and  8th   August,  1997  when  his  farm  was  invaded,  he  reported  of  the presence of raiders in neighbouring farms to the security authorities and requested them to take action to arrest the thugs. However, no action was taken by security agents. As a result, his property was vandalized. Senior police officers gave evidence for the government which opposed his claim. They admitted that the government was in a position to crush the tribal clashes but did not do so. He was awarded damages in the sum of Kshs 17, 930, 180. The three cases prove that the executive arm of the government lacked the will to enforce the Constitution. Since the repeal of section 2A of the former Constitution in 1991, election related violence  has  increased  and  undermined  the  country’s  institutions  greatly. Violence has been wrongly been viewed as a legitimate tool of either acquiring or retaining power.   Democracy does not countenance this. Many politicians who since 1960s have grown up under a de facto one party system, a de jure one party system and a multiparty system served by the former Constitution appear not to know what correct political behaviour is. They accept Machiavelli’s philosophy that the end justifies the means. Political violence and democracy can and do not mix. In an article titled The Political Economy of Kenya’s Crisis11, Dr. Suzanne D. Mueller  discusses  what  she  considers  to  be  three  causes  of  the  country’s violence. This is an article which both policy makers and top security officers ought to read. The first one is the country’s failure to observe the requirement of a modern democratic state – to control the monopoly of legitimate force over a given territory.  Over the years there have emerged in our polity gangs, militias and other violent formations which like the State wield force. At page 189, she notes that in the early and mid-1980s, politicians whom she names, had personal bodyguards, and gangs of supporters something not experienced during the Kenyatta period, meting out of private justice through personal gangs was something opposition politicians and their supporters faced and it became more entrenched  and   violent.  She   further  notes   that   both   state   and   personal bodyguards invoked extra forces to retain power. During the same period, KANU youth wing was used as a tool to monitor, silence, and punish dissidents in urban and rural areas. It is from these forms of extra-state violence that other forms grew. Democratic  life  is  not  possible  unless  the  government  of  the  day  has  the monopoly of legitimate force. It must not have any challenger - be it a militia or a gang. Those who engage in livestock rustling, like private gangs and militia and state sanctioned formations exercise power which the democratic state does not permit them to wield. Our current insecurity comes from that departure from the Constitutional norm. Referring to the work of Max Weber, Dr Susanne Mueller states that the defining characteristic of a state is its ability to control the monopoly of legitimate force over a given territory and further that without this monopoly, a state cannot maintain order, ensure peace and security or govern effectively and it becomes vulnerable to descending into a Hobbesian state of nature.  In such a state, life is insecure and the economy collapses. The second cause of the 2008 post-election violence was generally, weak institutions. These weak institutions are the ones which were sought to be remedied by the Constitution which Kenyans ratified on 4th  August 2010. Since 1980s Kenyans have realized that an institutional reform was needed and they have effected it. In that article, she rightly observes that “one of the hallmarks of democracy is its system of checks and balances among the executive, the legislative and judicial branches of government. The third cause is non-programmatic clientist political parties.   Of this, she says, “the third underlying precipitating factor ignited by the contested 2007 election was non-programmatic clientist parties based on ethnicity. She further observes that although Kenya has many ethnic groups who have lived side by side for years, politicians polarized and politicized ethnicity negatively in the run-up to the election. If our political parties were founded on ideologies, ethnic hatred would not occur. Parties would have supporters from different ethnic groups, religions and regions. No one would consider a fellow Kenyan an outsider. There would be little if any tribalism. Her article discusses the departures from the ideal of the ability to control the monopoly of legitimate force. She shows that even though this ideal had not been maintained, the state had gone a long way in upholding it during KANU’s first administration which lasted between 1963 and 1978. This was under Jomo Kenyatta. She observes that it was during the second 24 year rule of KANU that the state suffered a great loss of the ability to control the monopoly of legitimate force..  At  pages  188  to  194,  she  discusses the  different  forms  of  extra  state violence which emerged. A part of the extra-state violence served the interests of those in power whilst a part of it served both private and individual politicians’ interests. Very little improvement has taken place since the second KANU administration left office in 2002. At pages 6-7 of another paper titled Dying To Win: Elections, Political Violence, And Institutional Decay in Kenya which she wrote in 2010, she describes the situation which emerged after the departure from the ideal. She states: Over the long run, whether between the two elections in  the 1990s or before, during and after 2002 and 2007 elections, these extra state militias and gangs took on a life of their own in many parts of the country. Gangs moved into slums of Nairobi the rural areas of central province and other parts of the country. Gangs such as Mungiki and others acted as well organized shakedown gangs, offering various types of “you can’t say no” protection   and   services   for   fees.   They   moved   into   areas neglected by government or where officials and police turned a blind eye in exchange for kickbacks for themselves. During this process extra state violence became institutionalized with gangs like Mungiki infiltrating many businesses much like the mafia. In addition the state increasingly began to lose its monopoly of legitimate force with gangs increasingly taking over much of the geographic space and functions of government. Hence what began as  an electoral exercise to  win the presidency and the majority in parliament at all costs gradually dissipated government control over its territory threatening the integrity of state and nation. This meant that by the time the 2007 elections, diffused gang violence was lying in wait and could be tapped which is exactly what happened. In the above mentioned three studies of violence namely Report of the Select Committee to Investigate Ethnic Clashes in Western and Other Parts of Kenya [The Kiliku Report-1992], Report of the Judicial Commission Appointed to Inquire into Tribal Clashes in Kenya [The Akiwumi Report - 1999] and The Report of the Commission of Inquiry into Post Election Violence [The Waki Report – October 2008], the employment of extra state violence is discussed. A few illustrations will explain the position. At pages 30-31 of the Kiliku report, reference is made to evidence of a witness who informed the Commission when it was sitting at Kitale that he and other people of his area had information that clashes were imminent, they passed on the information to the Assistant Chief, the District Commissioner and the Officer Commanding Police Station who took no preventive measures. The Governor of Lamu, Mr Issa Timamy, is quoted as having prevailed on the OCPD at Lamu to send police to Mpeketoni at midnight but even when the officers reached there, they declined to take the fight to the militants. At page 235 of its report, the Waki commission stated that it was concerned by evidence tendered before it which showed that there was a big presence of GSU Officers at Likoni but they were only visible and not active. At paragraph 523-524 of its report, the Akiwumi report described similar situations to the ones which the Kilitu and Waki Commission described. It explained the reason why security officers do not discharge their Constitutional duties. It reads as follows: 523.  In our view it is not the lack of adequate security personnel and  equipment or  preparedness that  contributed to  the tribal clashes. The police force and the provincial administration were  well  aware  of  the  impending tribal clashes and if anything connived at it. Human nature being what it is it was not easy for the members of the police force and the provincial administration after the long time one party political system which was the only regime under which they had grown up, operated, prospered and flourished  to  now  adjust  let  alone  completely  and  with open arms welcome the introduction of a political system that was in principle not only contrary to what they had enjoyed but also one which on the face of it might adversely affect their status quo. They were, to put it realistically, part of the one party system. As Francis Gichuki honestly put       it   why   he   allowed   senior   KANU   Politicians   to pressurize him in the discharge of his duties, not taking certain courses of actions, My lords, in a political government, we have to be cautious. This is a political government. 524. The circumstances that initiated and fanned the tribal clashes were not so much logistical as the negligence and unwillingness on the part of the police force and the provincial administration to take firm and drastic action which would surely have prevented the clashes from erupting  even  if  they  erupted  would  have  brought  the initial clashes to a speedy conclusion and discouraged further  clashes.  Furthermore, tribal  leaders  and politicians should not have been allowed to get away with actions that will put one tribe against another.
The Commission was criticising the ethos of the police and the inadequate law enforcement by the prosecution and judicial organs of the state. The inadequate law enforcement is reflected by the growth of forged documents in the country’s land registries. Law breakers proceed on the view that they will not be punished. It is worthy of note that the authors of political violence since 1991 have not been punished and that recently when the Judicial Service Commission proposed that a division of the High Court to enforce international criminal law, the Director of Public Prosecutions who serves in the Executive arm of the government opposed the move vehemently. Insecurity will be with us for as long as impunity prevails The Commission was criticising the ethos of the police and the inadequate law enforcement by the prosecution and judicial organs of the state. The inadequate law enforcement is reflected by the growth of forged documents in the country’s land registries. Law breakers proceed on the view that they will not be punished. It is worthy of note that the authors of political violence since 1991 have not been punished and that recently when the Judicial Service Commission proposed that a division of the High Court to enforce international criminal law, the Director of Public Prosecutions who serves in the Executive arm of the government opposed the move vehemently. Insecurity will be with us for as long as impunity prevails. It is to be recalled that the Parliament rejected a bill based on the recommendation of the Waki Commission that a special tribunal be set up as a court  to  try  crimes  against  humanity.  That  recommendation is  contained  in chapter 13 of the Waki Commission Report. The Nation has adopted an ostrich mentality  towards  violence  of  1990s  which  claimed  about  1500  lives  and displaced about 300, 000 people from their homes. The Waitiki case which I discuss above is a most embarrassing reminder of our rule of law failures. If Dr Suzanne Mueller had looked at both the human condition and the history of violence since Kenya was born in the late 19th Century, she would have found that independent Kenya inherited the institutions of police and military whose function had been to cow people as opposed to enabling them to live in dignity and  liberty.  In  a  book  titled  Khaki  and  Blue:  Military  and  Police  in British Colonial Africa12, Anthony Clayton and David Killingray have described the role of the police and the military in colonial Keny