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Why Kibaki
must respect courts
DAILY NATION
Story by AMBROSE MURUNGA
Publication Date: 10/29/2005
I half-expected the Attorney
General to come out and reassure the country that President Kibaki
did not deliberately flout the law last week.
It was reported that the High Court
had given orders restraining the Government from issuing title
deeds for some property in the Rift Valley. The following day, the
President presided over a function where he handed over the titles
in dispute. I wanted to be comforted that the circumstances were
misreported and that the President had not acted in contempt of
the court.
But if the position as reported is
correct, then the President’s advisors have failed him and
exposed the country to a dangerous precedent. This is not the fist
time the Narc Government has overridden court orders. But it is
the first time it has been overtly done by the President.
I doubt he was unaware of the
existence of the court order. As the custodian of the
Constitution, his was a cynical and costly error in judgement.
At this point, it is immaterial
whether or not the court order was directed at the President. The
presidency should be above legal brinkmanship.
When Bill Clinton went before the
cameras and rasped, "I did not have any sexual relationship
with that woman", he reckoned he was being technically
correct; and clever.
And after it was proved that his
illicit scrotal engagements often ended with what my law
instructor persistently referred to as "emission of seed",
Clinton tartly explained that cunnilingus does not amount to sex.
Whilst some head of states’
indiscretions and excesses may not exactly pass the scrutiny of a
judicial process, it is by the less-technically-savvy court of
public opinion that his performance is judged.
When I see Minister Raphael Tuju
forcefully repossessing the KICC in direct breach of court orders,
I am tempted to dismiss his as an isolated act of a rookie eager
to make his bones.
But when Ministers Musikari Kombo
and Najib Balala follow suit, while Minister Amos Kamunya goes
further to exhort squatters to defy the courts, I begin to see a
disturbing pattern.
At the back of it all, I nurse the
hope that in the privacy of their meetings, the President gives
his ministers an earful for disrespecting the Judiciary. That is
why I get alarmed when it is reported that the President publicly
performed an exercise expressly outlawed, albeit temporarily, by
the courts. The President knows that, a government that is
perceived to disregard the processes it is sworn to protect erodes
its legitimacy. Neither the President nor his ministers are in
office by conquest, or by divine diktat. They are in office by
law.
The understanding between a
democratic government and its electors is that both sides must
observe a pre-agreed code of conduct: The law.
The law regulates the way we relate
and it does not matter how distressed by the law one may feel. Or
how powerful one is. The governed obey the law because they
discern the benefits derived from doing so, and not because they
would be punished if they did not.
And it is this rule of law, and not
his security detail, that protects a president from threats to his
presidency. It is, therefore, a tad reckless for an incumbent to
be seen to undermine the same laws.
The danger here is that, now that
it has happened, repeat performances get easier each time.
One remembers Czar Nicholas II at
the turn of last century. Russians were getting more enlightened,
yet the Czar continued to run the affairs of the state without
taking due cognisance of the changing times.
He declared war on Japan against
wise counsel and was thoroughly vanquished at the battle of
Tsushima. Russia lost 10,774 men against Japan’s 707.
Back home, he gave imperial decrees
arbitrarily and rubbished the courts. His ministers, too,
regularly carried on with officious arrogance and referred to the
law only when it suited their pursuits.
And the Czarina was not performing
any better. She shacked up at the palace with a monk called
Rasputin who was reputed to provide more than spiritual
companionship to Her Highness.
The mounting public discontent and
increasing scandals in high places accelerated the anarchy that
was the Russian revolution.
By the time the Czar lost his head
and throne, the state of lawlessness in the country had reached
what law-enforcers call chaotic levels. That is the point when
most officers take off.
Similarly, by allowing our
President and his ministers to flout court orders with abandon, we
run the risk of undermining the Judiciary and the rule of law in
the country.
Apart from encouraging official
anarchy, such continued defiance of courts by the Government
before a perceptive public means that the Chief Justice can kiss
the credibility of his courts goodbye.
The courts are likely to be viewed
by groups with access to executive privilege, read the President,
as a necessary nuisance; to be tolerated at times but ignored when
their orders threaten the group’s interests.
I do not see the Commissioner of
Police, a political appointee with no security of tenure, moving
in to enforce court orders on his superiors when they defy the
law.
The powers and privileges of
Kenya’s presidency dictate that the incumbent’s public
transactions should be beyond reproach.
I not only expect my President to
show humility, even before the lowest court in the land, but also
to avoid any controversy that would be seen as demeaning the
excellence of his office.
And if, for arguments sake, it was
necessary to override the law, then was this not the one time the
President’s iconic delegating management style would have
sufficed without losing out on any political mileage – real or
imagined?
Apart from inviting unnecessary
censure, tactically, the President left himself no escape hatch
here.
Or may be I have no reason to fear
and someone was just about to offer an explanation for His
Excellency’s action. The AG? The Spokesman? Anyone?
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