22 February 2014

Kenya: The Real Cost of Disobeying Court Orders

In a speech during the launch of 'The State of the Judiciary and Administration of Justice Report 2013' on February 7, Chief Justice Dr Willy Mutunga raised a few important issues touching on the administration of justice in Kenya.

The Chief Justice highlighted consequences of disobedience or disregard of court orders - "... a fairly reliable down payment for anarchy ... "

The Commission for the Implementation of the Constitution weighing in on the debate over the impeachment of the Embu Governor termed the disregard "... an assault on the rule of law, and threatens the very basis of our constitutional order ... . Separation of powers does not insulate state organs from constitutional obligations."

In Zambia and the United Kingdom, disobedience of court orders has been deemed an "undermining of the justice system and leads to a complete state of lawlessness and a breakdown of society."

State officials and organs have been the biggest culprits. The President recently stated that not even a court order would stop them from dealing with wayward officers. This trend is certainly worrying.

In the report, the Chief Justice highlighted the quantifying of costs of different aspects of the justice system. For example the Sh175 per day for keeping an inmate in custody, and the fact that approximately Sh241 Million was saved through the release of 3,830 offenders.

But what really is the cost of contempt of court or a disobedience of court orders especially by state, state officers and state organs?

Last year, the refugee community through Kituo cha Sheria with support from Katiba Institute and the UNHCR, contested a directive by government through the Department of Refugee Affairs in December 2012 ordering the immediate return of all refugees living in urban areas to the camps and an end to the reception and registration of asylum seekers and refugees in urban areas.

It argued that it was undertaken without involvement of stakeholders and violated the Refugee Act and Conventions.

The state mainly argued national security - that the continued stay of refugees in the country was the only cause of insecurity.

In its decision, the court held that the bill of rights applied to all persons within the Kenyan borders, refugees were a vulnerable group and their rights would be violated by the directive.

The court pointed out that the state did not prove any actual linkage between refugees and increased insecurity in Kenya. The court decreed that the directive be quashed.

The Decree was served on the Department of Refugee Affairs, The Attorney General, The Police, and The Office of the President - offices which would have been involved in the implementation of the directive.

It was hoped that the now close to 7,000 unregistered persons would be registered and have their stay in Kenya normalised using relevant refugee documents.

It should be a huge concern for every Kenyan citizen that there are close to 7,000 persons who have crossed the border into Kenya, who the government of Kenya knows nothing about.

What is the cost of this besides the obvious security risks and potential resultant loss of life and property?

Swoops and arrest by state security agencies have increasingly been carried out in areas with large populations of foreign nationals.

These persons are then charged in court for unlawful presence or terrorism-related offences. They may also be charged with being found outside designated areas - refugee camps.

A majority of these persons are released for either lack of evidence after spending time at detention centres. Courts may discharge them upon discovery that the sole reason for their arraignment in court is as a result of factors beyond their control.

Others are fined because they lack representation that would enable then articulate the frustrations and predicaments they go through at the hands of law enforcement agencies.

It would be very interesting if someone quantified the daily cost of carrying out swoops, detaining, and use - abuse - of court processes that often do not result in convictions. It is imperative to have an interrogation of the financial reports of law enforcement agencies by Treasury and other analysts, to uncover the levels of wastage each financial year through these activities. The government continues to make public utterances about forceful repatriation in utter disregard of a court order in Petition 115 of 2013, and a negotiated and agreed Tripartite Agreement.

As radical as it may sound, the wastage and resultant losses, monetary or otherwise - as a result of a disrespect, disregard and utter disobedience of court orders far outweigh the inconveniences that may be occasioned by such scrutiny.

Indeed, as a high court judge aptly stated it in a recent case, "As Kenya embarks on implementation of the new constitution... all parties must be reminded of the need to observe the rule of law which is the core and the foundation of our society. Without the observance and obedience of the orders of the court by ... .organs of state and all persons, the aspirations of Kenyans set out in the Constitution will remain a mirage."

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