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Titles: Did
Kibaki bend the law?
Story by NATION Correspondent
Publication Date: 10/19/2005
On Saturday, the President
gave land to residents of Olenguruone in Nakuru district after a
court order against the move – and now a row simmers if the
gesture was legally right
Despite a temporary interruption by
a downpour and despite a court order, President Kibaki gave out
land title deeds to residents of Olenguruone in Nakuru District on
Saturday.
But did the President disobey the
order barely three days after Chief Justice Evan Gicheru published
a statement in the Press warning politicians, among them Cabinet
ministers, against disregarding judicial decisions?
Legal opinion is sharply divided on
whether he was guilty of contempt of court or he merely exercised
discretion.
President Kibaki issues
a title deed to an Olenguruone resident recently. The move
has sparked debate as to whether the President was in
contempt of court. The jury is still out on this one.
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Mr Ahmednasir
Abdullahi, the immediate former chairman of the Law Society
of Kenya, says the action does not show fidelity in the rule
of law.
Mr Ahmednasir, a Nairobi
lawyer, says there is a consistent history between the two
arms of government where the Judiciary is subservient to the
Executive. "The Chief Justice can bark," he says
in reference to last week’s statement, "but until he
bites, people will continue to disobey court orders. The
duty to enforce decisions rests upon the courts." |
Order didn't name the President
State House argues, however, that
although High Court judge Daniel Musinga barred the commissioner
of lands, the lands registrar and the provincial administration
from issuing title deeds in Tinet, his order did not name the
President or stop him from issuing the titles as he was not served
with it.
Had any attempts been made to do
either, the action would probably have been illegal since the
Constitution, through Section 14, protects the presidency from all
criminal and civil proceedings.
But Mr Otiende Amollo, the chairman
of the Kenya chapter of the International Commission of Jurists,
says Section 14 only protects the President when he is exercising
his lawful duties and cannot shield him when he disregards a court
order.
"The Constitution also
requires the President to abide by the law," he says.
"Where he fails to obey a court order or circumvents it, he
is defying the Constitution, which he swore to protect."
"If we accepted that the
President cannot be held liable because of Section 14, it would be
an admission that the President is above the law, which is not
true," he adds.
Another Nairobi lawyer, Mr Kibe
Mungai, says the Olenguruone titles saga has been unnecessarily
politicised. Title deeds are not prepared in one day," he
says. "Before titles are issued, there is a process of
identifying the land, adjudicating it and then registering it. We
need to ask ourselves if presiding over the issuing of titles is a
juridical act that can be stopped by the court.
Legally, it may seem as if Mr
Justice Musinga’s order was akin to closing the stable after the
horse has bolted – because the lands registrar signed the titles
a week before. But Mr Amollo says the argument has been made many
times but has not been supported by any court. Anyone who seeks to
circumvent a court order is seen to be in contempt, he says.
Culture of impunity
People who read mischief in the
order, such as Kabete MP Paul Muite, say it was meant to stop the
President from holding the rally in Olenguruone. The rally, they
add, was a ceremonial event and therefore of only political,
rather than legal, significance.
"We must stop looking at
issues through a referendum lens," says Mr Amollo, in
reference to the ongoing campaigns for and against the proposed
Constitution.
"What the President did was
wrong in law. It sets a very dangerous precedent. There is a
culture of impunity, which began with the Government taking over
the Kenyatta International Conference Centre despite a court order
– "
"Over time, that euphoria has
gained a life of its own and has reached a stage where Cabinet
ministers, Members of Parliament and now the President do not
think they are bound by the courts."
In June, the Nairobi-based Centre
for Law and Research International (Clarion) named five Cabinet
ministers as having defied court orders since Narc took over
power.
In its report, Kenya’s
Democratisation: Gains or Losses? Appraising the Post-Kanu State
of Affairs, it cites a February 2003 incident in which the
then Information and Tourism minister, Mr Raphael Tuju, led the
take-over of KICC, then occupied by opposition party Kanu, despite
an order restraining him and the Government from doing so.
Mr Tuju again, on April 20, 2004,
went against a court injunction requiring that a committee he had
constituted to investigate the Kiss 100 FM radio station end its
operations.
Mr Karisa Maitha who until his
death last year was the minister for Local Government, defied Mr
Justice Isaac Lenaola’s March 12, 2004 order cancelling the
nomination of Mr Shakeel Shabir as a Kisumu municipal councillor.
He had also disregarded the judge's
July 2003 order not to revoke the nomination of Cllr J. Waundi of
the Mombasa municipal council.
Clarion also cited an April 15,
2003 case in which Public Service minister William ole Ntimama
apologised to the High Court for disobeying its order, which had
restrained him from interfering in the affairs of a tourism firm.
And on August 30, 2004, Foreign
minister (then in charge of Labour) Chirau Ali Mwakwere ignored a
court summons to appear before a city magistrate to answer to
claims of neglect of official duties in a suit filed by an NGO.
In May 2005, Lands minister Amos
Kimunya went ahead with with the eviction of Mau forest residents
despite a court order suspending it.
Mr Amollo cites more recent
examples, among them the decision by the Kenya Revenue Authority
to introduce electronic tax registers despite a court order and
the arrest of Nairobi MPs David Mwenje and Reuben Ndolo in the
court precincts even after they were granted bail.
"The Olenguruone case seems to
be a continuation of the same old script," Mr Amollo says.
"When the President falls into
that trap, it is not the rightness of the order that is in
question," he argues. "The decorum of respect for the
courts requires that every order be respected because there is
always a loser in every matter. It is just lucky that citizens
have not been caught up in this frenzy."
Public opinion has it that the
Kibaki administration has acquired the reputation for only obeying
laws that it finds expedient. Last month, for instance, the
President ordered that the Amboseli national park be turned into a
national reserve and handed over to the Olkejuado county council.
The legal implications of the
Olenguruone event has yet again brought into the spotlight the
role of Attorney-General Amos Wako as the chief government legal
adviser. Mr Mungai says that since the court injunction was issued
on Thursday, two days before the Olenguruone rally, the AG had 24
hours to go to the judge and seek to set aside the order, arguing
that the titles had already been issued.
In the event that Mr Wako did not
go to court, the President could either cancel the rally that had
been announced a week before, or plough through it and let the
legal issues sort themselves out. Clearly, the event could not be
cancelled without a great political cost to the President.
Although the President might have
been aware that presenting the titles could create a perception of
conflict between the Executive, which he heads, and the Judiciary,
it is likely that he saw himself faced with a purely political
problem.
If he agreed to skip the rally or
preside over it without handing over the titles, it would seem
that he had been politically neutered through the courts.
When he rose to speak, the
President was characteristically unrepentant, telling the crowd
that people who had problems with his handing over of the title
deeds could seek legal redress, and that the new landowners had
nothing to fear.
In the midst of the whirlpool of
legal arguments, the President’s action could set a precedent
for people to disobey court orders. But more worrying is that it
could lend credence to claims of government impunity in the face
of the law.
And what is to be done?
Even if the President was as guilty
as sin and breached Mr Justice Musinga’s order, it would be
difficult to reprove him.
Says Mr Amollo: "It is
highly unlikely that the court would commit the President for
contempt. But the President ought to be reprimanded by the Chief
Justice. The President is the head of the Executive, just as the
Chief Justice is the head of the Judiciary. Just as he reprimanded
the Speaker, who is the head of Parliament, he should make clear
efforts to find a way in which courts are more stern in enforcing
respect for the law."
Matters have not been helped by the
fact that none of the ministers who have disregarded court orders
have been cited for contempt. "In open and shut cases where
contempt of court was committed," says Mr Mungai, "the
Attorney-General should commence contempt proceedings against the
culprits. "
"Judges must be brave enough
to throw them into jail." He cites the case of a minister who
was jailed in Papua New Guinea.
There is a hitch though: All
prosecutions are instituted at the discretion of the AG, who is
also a member of the Cabinet. The fact that he might, as a member
of the Cabinet, be party to decisions that run into trouble in the
courts creates a conflict of interests and a professional dilemma
for him.
It is unlikely that he will start
contempt proceedings against a member of the Cabinet while he sits
on it.
Hopeless war for the Judiciary
"There is a very real danger
of a near-collapse of the ideal of the separation of powers just
as there is a collapse of the concept of collective responsibility
in the Cabinet," Mr Amollo says. "I do not agree with
the Chief Justice when he says there is a need for courts to
punish contempt, but says nothing when the Police Commissioner and
the President act so flagrantly."
With all the forces ranged against
it, it seems like a hopeless war for the Judiciary, but there are
exceptions – although a court, being place of arbitration,
cannot originate cases, it can begin proceedings for contempt
offences.
Even this is an unlikely course of
action because the independence of the Judiciary remains very
unclear.
Whatever pretences Kenya might make
of separating the power of the Executive from that of the
Judiciary, the power to appoint all judicial officers, including
the Chief Justice, is vested almost entirely in the President.
And going by the recent forced 2003
retirement or suspension of 25 judges, among them the Chief
Justice, it is not in any doubt that all judicial officers serve
at the President's pleasure.
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