Defiance of court orders by gov’t officers litmus test for new AG Oduor

On Tuesday, September 3, 2024, the High Court ordered Masengeli to appear in court to give details on the the location of the trio last seen in Kitengela, Kajiado County. The three were abducted by unknown persons believed to be police officers. 

Jamil Longton Hashim, his brother Aslam Longton and activist Bob Michemi Njagi were bundled into saloon cars that sped off.  The three men were kidnapped on August 19, 2024. Prior to their abduction, two of them, Njagi and Hashim had hosted a talk show on x space to have a citizen forum on the state of the nation.

Many would probably ask, what on earth is a court order? A court order is an official proclamation by a magistrate or judge or panel of judges that demands or authorizes the carrying out of certain steps by one or more parties to a case. Most orders are written and are signed by the judge. Some orders, however, are spoken orally by the judge in open court and are captured in writing during the proceedings. 

A cue from top state officers

The script, the man in uniform has followed, falls right into the precedent set by the top leadership of the country, who at the start of this year publicly said that they will no longer abide by court orders. On January 3, President William Ruto, while at a function in Nyandarua, vowed to disregard court rulings or injunctions that he says are meant to derail his government agenda, especially those by "corrupt" judges. 

To indicate the seriousness of his words, he ordered the Roads Principal Secretary, notwithstanding active court orders, to ensure the resumption of construction for a road in the Nyandarua region that had stalled courtesy of a legal feud.

This was the second time, that the President had accused a cabal of faceless judges of corruption, alleging bribery in some of the court rulings that impeded some of his key Kenya Kwanza Administration programs, including the Universal Health Care and Housing projects. Other top state officials followed suit in unbridled criticism of the judiciary and this drew the ire of some in the public with many observers astonished at the president’s proposition. 

The national coordinator of The Institute for Social Accountability (TISA), Diana Gichengo, while appearing at a media show earlier in the year, said the President should be indicted for his defiance of court orders and attacks on the judiciary.

The matter on disregard of court orders grew so hot that the Chief Justice Martha Koome had to jump in and give her side of the story. On January 15, she condemned President Ruto’s administration’s blatant disregard for court orders and his onslaught on the judiciary. 

Later, on January 22, due to public alarm at dysfunctional arms of the government, President Ruto held a meeting with Chief Justice Martha Koome at State House in a bid to end the stand-off between the Executive and Judiciary that things cooled down.

New AG Dorcas Oduor dilemma with defiant executive 

On August 20, Dorcas Oduor was sworn in as the new Attorney General.  She is a lady of many accomplishments and vast experience within the legal circles and her appointment was seen as deserving of merit, just as President Ruto pointed out when she was being sworn in. 

Coincidentally, this time round, she made history as Kenya’s first lady Attorney-General succeeding Justin Muturi, who is now a cabinet secretary. She hit the ground running because within two days, the newly appointed Attorney General had initiated an open day at the AG’s Office and pledged to clear backlogs at Sheria House. 

However, what caught the ears of many observers was her stellar call for all Kenyans to obey court orders so as to enhance the rule of law. AG Oduor said “on obedience of court orders, the law requires that we obey court orders as and when an occasion arises, I will urge everyone to obey court orders not only the executive but everybody to obey the court order… The AG is required to work for the people and the law is supposed to work for the people not people for the law, so whatever we do even as a government is in furtherance in the interest of the people…” 

With this continual order of events, what are Oduor’s options in trying to bring back the rule of law within the government.

Uhuru’s disdain for court orders

June 8, 2020 might have gone off the minds of many Kenyans but to a good number it is still vivid. Retired Chief Justice David Maraga took the bold step to declare President Uhuru Kenyatta out of order for continued defiance of court orders. 

Close observers thought this was bold, for those around the hanging on the former president’s coattails; it was treasonous; yet to those easily scared, this statement seemed reckless! Did he not care for himself? When CJ Maraga walked out of his office, alone, to address the press with no other judicial officer from the judiciary or the judicial commission, he cast a solitary figure, probably abandoned but trudging on because there was work to do and the buck stopped with him. He was however uttering the obvious, the president and by extension his officials were in blatant disregard of court orders with impunity.

In former CJ Maraga’s words, "It is a mockery for the president and his government to demand that citizens obey its laws when they disobey the law themselves and expose members of the public to suffering as a result of the willful defiance of court orders." Retired CJ Maraga accused President Uhuru of disregarding court orders, failing to approve the appointment of some new judges, and threatening the constitution. Retired CJ Maraga lamented the Executive's disregard for court orders including;

Failure to swear in some of the judges out of 41 judges recommended by the Judicial Service Commission despite a court order to that effect. A three-judge bench had ruled that the delay by President Kenyatta to appoint the 41 judges was unconstitutional. Judges Lydia Achode, Chacha Mwita and James Makau said Uhuru was constitutionally bound by the recommendations of the JSC on persons to be appointed.  

Another disregard of court orders by government officials involved the once-deported fiery lawyer Miguna Miguna.  Government official from Uhuru’s administration had continually disregarded the courts' directive to allow his return to the country from Canada. Justice John Mativo noted that several orders directing the government to facilitate Miguna’s return had been ignored hence disobeyed. Contrary to court directions, the government insisted it had not disobeyed the court, rather they attempted to rather to clarify that Miguna’s passport expired yet he had not applied for its renewal. In December 2018, Justice Chacha Mwita directed the government to return Miguna’s passport but it later emerged that it had been perforated. Miguna was also awarded Ksh.7.2 million as compensation for violation of his rights and for the destruction of his Runda home when police officers raided it.

A third case of the executive ignoring court orders concerned a senior soldier Maj Gen. P.  Kariuki who was the commander of the Kenya Air Force during the August 1, 1982, attempted coup. He was arrested, confined at Kamiti Maximum prison for some time before he was court marshaled in 1983. He was charged with failure to prevent a mutiny. In 2014, the Court of Appeal ordered the reinstatement of his rank, benefits, honors and decorations. The government also refused to restore the former Air Force Commander Maj. Gen Kariuki to his rank. A Ksh.71 million compensation, granted by the same court was also not honored.  There were many other such cases awaiting specific orders and compensation orders yet to be honored by the state. 

The Judiciary should be beholden to the executive, or so they say…

However, the DP Rigathi Gachagwa said “The judiciary had lost its independence but the Kenya Kwanza government restored it. Now they (judiciary) should be fair to us and avoid issuing orders that are unreasonable.” Bob Mkangi, one of the authors of the 2010 constitution, once said the executive branch, ignoring court orders was "endeavoring to claw back some of the powers that were taken away by the 2010 constitution.

Having an independent judiciary is one of the ways to end Kenya's cycle of political violence, according to some analysts. The rule of law is the foundation for healthy communities steeped in justice, opportunity, and peace.

No matter who we are or where we live, the rule of law affects us all. Justice, opportunity and peace buttress development, accountable government, and respect for fundamental rights. Indeed, research world over, shows that the rule of law correlates to higher economic growth, greater peace, better education, and improved health outcomes. 

On the World Justice Project Index of 2023, Kenya scores a weak forty-six percent and is ranked no 101 as other African countries such as Rwanda, Mauritius and Botswana score much higher and it is evident in their human development indices.