Judicial independence or activism? Courts flex their muscles to rein in Executive

The Judiciary appears to be stamping its authority on obedience of court orders after decades of an overbearing Executive.

The Director of Criminal Investigations boss George Kinoti is the latest example, following his four-month sentence for contempt as judges lay bare the power limits of each arm of government.

It adds to the list of top officials in President Uhuru Kenyatta’s administration who have been cited for contempt of court.

They include Attorney-General Kihara Kariuki, Interior Cabinet Secretary Fred Matiang’i, Labour Cabinet Secretary Simon Chelugui and Principal secretary Karanja Kibicho.

Also in the list is former Inspector-General of Police Joseph Boinnet (now Tourism chief administrative secretary) and former Immigration Director Gordon Kihalangwa (now Principal Secretary, Ministry of Energy).

Contempt of court attracts a fine of Sh200,000, a jail term of up to six months, or both.

Mr Kihara and Dr Kibicho were in January cited for contempt by Justice Erick Ogola at the High Court in Mombasa over failure to comply with an order to pay the family of a man killed by police Sh5.3 million. The order had been issued in October 2019.

Last month, the State purged the contempt by paying the money.

Miguna case

Dr Matiang’i, Mr Boinnet and Dr Kihalangwa were in March 2018 found guilty of contempt for disregarding orders to produce lawyer Miguna Miguna in court. Justice George Odunga fined them Sh200,000 each, but they appealed against the order.

“Contempt of court is no doubt an affront to judicial authority and, therefore, is not a remedy chosen by a party but is invoked to uphold the dignity of the court,” said Justice Odunga. 

“Those who disobey court orders risk being declared by the Court to have breached Article 10 of the Constitution which prescribes national values and principles of governance,” he added.

Mr Chelugui was last month cited for disobeying an order to authorise two hospitals to deduct union dues from members of the Kenya National Union of Nurses (Knun), leading to a loss of Sh6 million.

Justice Onesmus Makau found Mr Chelugui had disobeyed an order dated November 12, 2019, by failing to sign gazette notices directing the AIC Kijabe Mission Hospital and Moi Teaching and Referral Hospital to deduct fees in favour of the union. The judge said the CS did not have any justifiable reason. 

Defence Principal Secretary Dr Ibrahim Mohamed was in June committed to six months civil jail by Justice Jairus Ngaah for failing to pay former soldiers Sh12.5 million for illegal detention during the failed 1982 coup.

The PS disobeyed orders issued in November 2017 to compensate five former servicemen and did not turn up in court to mitigate it.

“The President has to move swiftly and restore sanity by acknowledging that the Director of Criminal Investigations breaks the law and his continued stay in office is untenable,” said lawyer Kipkoech Ng’etich.

He said sentencing of Mr Kinoti and failure to surrender to prison means he does not meet the requirements of Chapter Six of the constitution.

“It means he lacks mandatory integrity and is unfit to hold public office. It also means Kinoti has risen against the rule of law and constitutionalism. He stands banished from legal office,” said Mr Ng’etich.

Disobedience of court has in some instances come with costs to Kenyans. In September, taxpayers were slapped with a Sh65 million bill after a roads ministry officials defied a court order temporarily stopping them from destroying private property built on a reserve in Kasarani, Nairobi.

The property – a truck transport yard owned by businessman Omar Yakub – was brought down by the ministry in November 2008 to pave the way for the construction of the Nairobi-Thika highway.

Justice Bernard Eboso ruled that although the land was for public utility and had been irregularly acquired by Mr Yakub, the demolition was carried out in contravention of a subsisting court order. Hence, the businessman was entitled to damages.