On Wednesday, Acting Inspector-General of Police Gilbert Masengeli failed to appear in court to account for the whereabouts of three men believed to be in police custody. The High Court had ordered Masengeli to provide information on the location of the trio, last seen in Kitengela, Kajiado County.
The three—Jamil Longton Hashim, his brother Aslam Longton, and activist Bob Michemi Njagi—were allegedly abducted by unknown individuals, presumed to be police officers, on August 19, 2024. The men were forcibly taken away in saloon cars after appearing on a talk show discussing national issues.
A court order is an official directive issued by a magistrate, judge, or panel of judges, mandating certain actions by parties involved in a case. Most orders are written and signed by the judge, though some may be issued orally and recorded during proceedings.
This situation echoes the stance taken by top state officials earlier this year. On January 3, President William Ruto declared he would no longer adhere to court orders he deemed obstructive to his government’s agenda, particularly criticizing “corrupt” judges. He directed the Roads Principal Secretary to resume construction of a stalled road in Nyandarua, despite existing court orders.
This marked the second time President Ruto accused judges of corruption, claiming bribery influenced rulings that hindered key Kenya Kwanza Administration projects such as Universal Health Care and Housing.
Other high-ranking officials echoed this criticism of the judiciary, drawing public ire and astonishment. Diana Gichengo, National Coordinator of The Institute for Social Accountability (TISA), suggested that the President should be held accountable for his defiance of court orders and attacks on the judiciary.
The issue of disregarding court orders escalated to the point where Chief Justice Martha Koome had to intervene. On January 15, she condemned President Ruto’s administration for its blatant disregard for court orders and its attacks on the judiciary.
Following this, on January 22, amid growing public concern over dysfunctional government branches, President Ruto met with Chief Justice Koome at State House to address the standoff between the Executive and the Judiciary, which led to a temporary de-escalation.
Dorcas Oduor’s Challenge with a Defiant Executive
On August 20, Dorcas Oduor was sworn in as Kenya’s first female Attorney General. Known for her extensive experience and accomplishments within the legal field, her appointment was seen as well-deserved. Within two days of taking office, Oduor initiated an open day at the AG’s Office and vowed to address backlogs at Sheria House.
Notably, she emphasized the importance of obeying court orders to uphold the rule of law, urging everyone, including the executive, to comply with judicial directives.
She stated, “The law requires us to obey court orders whenever necessary. I urge everyone, including the executive, to respect court orders… The AG works for the people, and the law should serve the people, not the other way around.”
Given the ongoing challenges, the key question remains: what actions can Oduor take to restore the rule of law within the government?
Uhuru Kenyatta’s Defiance of Court Orders
June 8, 2020, remains a significant date for many Kenyans, as it marked a bold statement by then-Chief Justice David Maraga, who publicly criticized President Uhuru Kenyatta for his continued defiance of court orders.
Maraga’s address, made alone and without support from other judicial officers, was seen as a courageous stand against what he perceived as blatant disregard for judicial authority. His remarks highlighted the president’s and his officials’ impunity in ignoring court rulings.
Former Chief Justice David Maraga criticized President Uhuru Kenyatta’s administration for what he described as a blatant disregard for court orders.
Maraga stated, “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 their willful defiance of court orders.”
He accused President Kenyatta of failing to approve the appointment of new judges, defying court rulings, and threatening the constitution.
Maraga highlighted several instances of the Executive’s disregard for court orders:
1. Failure to Appoint Judges: Despite a court order, President Kenyatta did not swear in some of the 41 judges recommended by the Judicial Service Commission (JSC). A three-judge bench, including Judges Lydia Achode, Chacha Mwita, and James Makau, ruled that Kenyatta’s delay was unconstitutional and that he was bound by the JSC’s recommendations.
2. Ignoring Miguna Miguna’s Return: The government consistently ignored court orders to facilitate the return of fiery lawyer Miguna Miguna from Canada. Justice John Mativo noted that multiple orders for Miguna’s return were disregarded. The government claimed Miguna’s passport had expired and that he had not applied for renewal, despite court directives to return his passport. In December 2018, Justice Chacha Mwita ordered the return of Miguna’s passport, but it was later found to be damaged. Miguna was awarded Ksh.7.2 million in compensation for the violation of his rights and damage to his property during a police raid.
3. Maj Gen. P. Kariuki’s Case: The Court of Appeal ordered the reinstatement of Maj Gen. P. Kariuki’s rank, benefits, honors, and decorations following his court-martial in 1983 for failing to prevent the 1982 coup. The government refused to comply with this order and did not honor the Ksh.71 million compensation awarded by the court. Numerous other cases involving unfulfilled court orders and compensation claims remain unresolved.
The Judiciary and Executive Relations
Deputy President Rigathi Gachagua claimed that the judiciary had lost its independence, but the Kenya Kwanza government had restored it.
He argued that the judiciary should now issue fair and reasonable orders. Bob Mkangi, a contributor to the 2010 constitution, suggested that the executive’s disregard for court orders was an attempt to reclaim powers removed by the 2010 constitution. Some analysts argue that an independent judiciary is crucial for breaking Kenya’s cycle of political violence and ensuring justice, opportunity, and peace in society.
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.
