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Muite's
defence of contempt astonishing
DAILY NATION
Story by MIGUNA MIGUNA
Publication Date: 11/11/2005
Kabete MP Paul Muite is not known
for pulling punches, especially on matters touching on the
presidency.
During former President Moi’s
reign, he gained a reputation for throwing jabs at the presidency
on every available opportunity. At that time, his voice and
piercing eyes haunted State House. But that was then.
Since President Kibaki took office
in 2002, Mr Muite has been fudging questions rather than piercing
them, mostly on matters concerning the powers of the presidency,
the constitution review process, and at times, even on matters of
law.
Mr Muite is not just an MP; he's a
senior counsel with a solid reputation for coherent advocacy. Thus,
when he dons the wig, we have the right to expect him to be more
cautious in his pronouncements.
In his opinion piece the other day,
Mr Muite makes very intriguing arguments in defence of President
Kibaki’s defiance of court orders.
Mental somersaults
To his credit, he acknowledged one
instance when the President violated the Constitution and the law
in refusing to appoint Dr Julius Rotich as KACC deputy director.
He correctly argued that the President’s role in such an
appointment is ceremonial and he had no constitutional or legal
powers to refuse to appoint one whom 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 disobeyed court
orders, he 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.
One cannot argue that President
Kibaki disregarded the court order that directed him not to give
out 12,000 title deeds to the Ogiek community in Nakuru due to
confusion over the limits of his executive powers. Nor was his
contempt of court due to the mechanism used to obtain the order.
There is no question that a High
Court sitting in Nakuru issued an order directing the Government
not to give out the title deeds, which the President eventually
issued. The order was applied for and granted before the President
went to Nakuru.
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 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. 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, 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. Mr Muite did not inform
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? What if the
Government issued the title deeds for a fraction of the land that
the Ogiek had claims over?
It is extremely rare for a court to
issue a permanent injunction. Most injunctions are temporary or
preliminary. Eventually, the respondent gets the opportunity to
present his case and the court determines whether to make final or
permanent orders.
Mr 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.
Call for civil disobedience
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," Mr 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.
He knows that civil disobedience is
a form of law-breaking employed by ordinary citizens to
demonstrate against 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
against its own laws.
What Muite clearly calls upon
Kenyans, including the executive arm of government to do, is to
selectively obey or disobey court orders.
As a strong advocate for the
entrenchment and institutionalisation of the rule of law, Mr 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.
Mr Miguna is a barrister and
solicitor working in Toronto, Canada
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