News 2005

PAUL MUITE, the MP for Kabete, is not well known for pulling his punches, especially on matters touching on the Kenyan presidency. During former President Moi’s reign, particularly following the fall from grace by his mentor, Charles Njonjo, Muite gained a reputation for throwing jabs (both lethal and non-lethal) at the presidency on every available opportunity. At that time, Muite’s legendary voice and piercing eyes haunted and hounded State House like a Colossus. But that was then.

Since President Kibaki took office in December 2002, Muite has been purring and fudging questions rather than piercing them, mostly on matters concerning the powers of the presidency, the constitutional review process and at times even on matters of law.

Hon. Muite is not just an MP. He is also a Senior Counsel, with a solid reputation for coherent advocacy. Whenever he dons his political hat and enters that infamous august House, Kenyans generally expect him to behave as badly as his other progenitors; banging tables and stomping the ground. For in that Big House, the rules allow and seem to condone that kind of behaviour. Our MPs have been accustomed to strange utterances under the protective cloak of Parliamentary privilege.

However, when my learned friend picks up the colonial wig and places it squarely on his head, we have the right to expect him to be more deliberate and cautious in his pronouncements.

In his op-ed piece the other day, Muite makes very intriguing arguments in defence of President Kibaki’s defiance of valid court orders.

To his credit, Muite acknowledged one instance when the President violated the Constitution and the law in refusing to appoint Dr. Julius Rotich as KACC deputy director in charge of finance. He correctly argues that the president’s role in such an appointment is ceremonial and that the president had no constitutional or legal power to refuse to appoint one who Parliament had confirmed.

However, rather than pursue this line of reasoning to its logical conclusion on other instances when the Executive arm of government has clearly abrogated the constitution, violated valid laws and disobeyed court orders, Muite performs some very strange mental somersaults and ends up blaming the current set up of the three institutions of government (judiciary, executive and parliament) as being responsible for the violation of the law and the encroachment into each other’s jurisdictions.

Yet this purported failure to clearly demarcate boundaries between the three arms of government was never an issue to begin with. Institutions do not act by themselves without human involvement. The real issue – and Muite must know this – is, and has been, the executive overreach and disregard for properly laid down procedures, laws and orders.

One cannot reasonably argue that President Kibaki disregarded the court order that directed him not to give out the 12,000 title deeds to the Ogiek community in Nakuru due to some confusion over the limits of his executive powers or roles. Neither was his contempt of court due to the mechanism used to obtain the order. Muite complains about the injunctive order by the judiciary to Parliament not to debate the Ndilinge Report and presents this as another example where one institutional organ of government is encroaching on another’s sphere. In line with his reasoning, he then implies that Parliament does not have to obey such an order and should in fact disobey it.

There is no question that a High Court sitting in Nakuru issued an order commanding or directing the government from giving out the 12,000 title deeds that the president eventually issued. The order was applied for and granted before the president went to Nakuru and issued the title deeds.

The issuance of the order a day or so before the president’s trip to Nakuru was broadly published and disseminated to Kenyans, including members of this government. The president was either aware or ought to have been made aware of the existence of the order.

Injunctions are sought and issued as preventative and protective remedies, aimed at future acts; they are not intended to redress past wrongs. Injunctions can be issued at any time during any pending or anticipated litigation for the short-term purpose of preventing irreparable harm or injury to the petitioner prior to the time that the court will be in a position to either grant or deny permanent relief on the merits of the case.

Whereas preliminary injunctions follow notice to the respondent; temporary restraining orders are issued ex parte (that is, without notice to the respondent).

But temporary restraining orders are only issued in cases where immediate relief is warranted in those situations in which the petitioner has satisfied the court that he or she will suffer irreparable harm if relief is not granted forthwith and time simply does not permit either the delivery of notice or the holding of a hearing.

However, one needs to underline that a court will not issue any order unless it is satisfied, based on the facts and evidence before it, that the order sought is just.

Muite has not informed us why the order was unjust. For instance, could it not be possible that those who obtained the order did so because they were not going to receive their title deeds, which they had reason to believe they were legally entitled to? After all, do we know for sure how that magic number 12,000 was chosen? Or how many people were left out? Or whether land belonging to the petitioners was given to those without any legitimate claims to them?

How about if the government engaged in a divide and rule policy, where 12,000 title deeds were issued for a fraction of the land that the Ogiek had claims over?

It is extremely rare for a court to issue a permanent or perpetual injunction. Most injunctions are temporary or preliminary.

Eventually, the respondent gets the opportunity to present its case and the court determines whether to make final or permanent orders.

Muite argues that “fidelity to law” entails that individuals and institutions must submit to the rule of law so that there can be orderly governance.

This is precisely the point why members of the current government must obey all laws and court orders as issued until those order are set aside.

By advancing an argument that “where the Judiciary is institutionally weak, it invites disobedience to its own orders where it fails to base such orders on sound law,” Muite is either openly calling for civil disobedience or contempt of court as the preferred option by Kenyans in the face of court orders they disagree with.

Muite knows that civil disobedience is a form of lawbreaking employed by ordinary citizens to demonstrate the injustice or unfairness of a particular law.

An act of civil disobedience is deliberate and targeted to focus attention on the allegedly undesirable law; not valid court orders. Civil disobedience is never an option for a government in power against its own laws.

On the other hand, what Muite clearly calls upon Kenyans, including the executive arm of government to do, is to selectively obey or disobey court orders.

Apparently, Muite believes that a valid restraining court order obtained by a few individuals against the government’s intention to issue title deeds cannot stop the government from proceeding with the giving out of twelve thousand title deeds.

As far as Muite is concerned, in matters of law, the majority has more rights than a minority.

Taking that argument further, Muite would like us to believe that he is prepared to limit or subordinate his individual rights and liberties if those rights happen to be in conflict with that of two or more people.

As a strong advocate for the entrenchment and institutionalization of the rule of law in Kenya, Muite should know that court orders are not obeyed because of the number of people involved in obtaining them.

Valid court orders – no matter how they are obtained - must be obeyed by all to ensure that an orderly society is maintained.

Any act which is calculated to embarrass, hinder or obstruct a competent court in administering justice, or which is calculated to lessen its authority or its dignity, is contemptuous.

-The writer is a barrister and solicitor in Toronto, Canada.

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