Nancy Gitonga, Irene Githinji and George Kebaso @PeopleDailyKe
Chief Justice David Maraga has warned against disobedience of court orders saying it would attract consequences. In a statement, the CJ yesterday said disregard of court orders was not only “inimical to the rule of law but also completely at odds with the country’s constitutional outlook.”
He said compliance with court orders was not an option for any individual or an institution and neither is it a “favour to be doled out” to the Judiciary. “Whereas the Chief Justice does not ordinarily comment on matters that are actively before the court, in the last few days there has been worrying developments in the administration of justice that threaten the rule of law,” said Maraga.
He was referring to failure by the government to comply with High Court judge Chacha Mwita’s order last Friday directing the Communications Authority of Kenya to restore transmissions of the TV stations that were switched off on January 30 for airing the “swearing in” of Nasa leader Raila Odinga.
Security agencies have also been on the spot for failing to free self-proclaimed National Resistance Movement general Miguna Miguna on Friday despite having obtained bail. Maraga said there were legal means to have court orders reviewed, varied or set aside.
State officers, he observed, take an oath of office to protect and uphold the Constitution and to disobey a court order was not only a violation of the Constitution but also a dereliction of public duty. “Failure to do so has consequences and judges are at liberty to invoke the legal avenues to enforce those orders,” Maraga said.
He said courts were temples of justice and places of refuge for those seeking protection and they must never be despoiled either through acts of physical transgressions or blatant disregard of their pronouncements. In another development, the High Court yesterday ordered the Director of Immigration Gordon Kihalangwa to file affidavits in court explaining circumstances under which Miguna was deported to Canada.
Justice Luka Kimaru also ordered Inspector General Joseph Boinnet and DCI boss George Kinoti to also file affidavits explaining how Miguna was deported while being in the hands of the court. The judge also issued summons to the two senior police bosses to appear in court in person on February 15 to show cause why they should not be committed to civil jail for contempt for disobeying court orders.
“From the submissions made before me, it is clear to this court that there is an obvious contempt of the orders of this court and a deliberate attempt by state agencies to subvert the rule of law in this country,” ruled the Judge.
Kimaru made the fresh orders after Senior State counsel Duncan Ondimu tabled in court a letter signed by Interior CS Fred Matiang’i confirming that the Immigration department deported Miguna to Canada for being in Kenya illegally contrary to national interest. Kimaru on Tuesday evening ordered Kinoti and the head of Flying Squad, Said Kiprotich, to personally present Miguna in court by 11am yesterday, but they failed to do.
This prompted Miguna’s lawyers to ask the court to summon the IG and DCI to explain why they disobeyed court orders. But the prosecution shifted the blame on Immigrations, saying police were not responsible for the deportation.
Lawyer James Orengo said in the face of orders issued at Kajiado law courts, the police had no option but to produce the applicant before Milimani Law Courts. Meanwhile, the Kenya National Commission on Human Rights (KNCHR) criticised disobedience of court orders.
“The Commission reminds all duty bearers and political actors from both divides that democracy…must be guided by the rule of law, constitutionalism and respect for human rights,” said the chairperson Kagwiria Mbogori .