8 February 2018

Kenya: KNCHR Sounds Alarm Over Rising Contempt of Court

Nairobi — The Kenya National Commission on Human Rights (KNCHR) has raised concern over the failure by the National Police Service (NPS) to comply with orders issued by the courts.

In a statement sent to newsrooms Thursday, the KNCHR equally faulted security services for violating rights of arrested persons as enshrined in Article 49 of the Constitution.

"KNCHR strongly condemns the current cases of deliberate contempt of court orders and illegal and arbitrary arrests that are off-tandem with the Kenyan law and set practices and standards," Chairperson Kagwiria Mbogori stated.

"The Commission is particularly concerned that the rights and freedoms that our national fathers fought so hard to protect, and are now enshrined in our Constitution, are rapidly being disregarded and violated," she added.

She said there was a need to ensure rights and freedoms guaranteed by the Constitution are not violated if the rule of law is to be safeguarded.

Mbogori said the rights and freedoms, "automatically accrue to every Kenyan without discrimination and as such cannot be denied or be suspended by any person or organ unless under provisions stipulated by the Constitution."

The statement came a day after Chief Justice David Maraga described recent instances of disregard of court orders as actions inimical to the rule of law and a violation of the Constitution adding that judges were free to invoke consequences on those found to be in contempt.

"Compliance with court orders is not an option for any individual or institution. Neither is it a favour to be doled out to the Judiciary. Rather, it is a crucial matter of constitutional and civic obligation," Justice Maraga said in a statement on Wednesday.

"If any party is aggrieved by a court order, there are legal mechanisms to have it reviewed, varied or set aside, or even appealing against it," he advised.

The statement by Maraga and KNCHR come on the backdrop of the deportation of self-proclaimed general of outlawed National Resistance Movement (NRM) Miguna Miguna on Tuesday night ahead of his scheduled appearance in court on Wednesday when he was to be released on bail.

Justice Luka Kimaru Tuesday night suspended all criminal proceedings against Miguna after the State failed to produce him in court for his release.

Miguna had earlier in the day declined to take a plea when he was arraigned before a Magistrate Court in Kajiado.

On Wednesday, Justice Kimaru gave the Director of the Department of Immigration Services Gordon Kihalangwa until Friday to explain the circumstances under which he assumed the custody of Miguna, who was deported to Canada.

Justice Kimaru also directed Inspector General of the National Police Service (NPS) Joseph Boinnet and the Directorate of Criminal Investigations (DCI) chief, George Kinoti, to file affidavits by Friday explaining why they handed over Miguna to immigration officials for deportation.

"For the court to make an appropriate determination on what action to take, Boinnet and Kinoti are directed to swear affidavits in person in regard to the circumstances under which the applicant was released to immigration officials during the subsistence of a valid court order requiring them to produce him in this court so that he can be dealt with in accordance with the law," Justice Kimaru directed.

Boinnet and Kinoti are also required to explain why they should not be punished for contempt of court ahead of their appearance before Justice Kimaru next week Friday.

Miguna's lawyer, Nelson Havi, said following the orders that there was a need for a credible explanation over his deportation.

"The deportation was an attempt to subvert the course of justice, to circumvent and continue disobeying a court order. It is our expectation that on February 15, we will have a credible explanation why this was done," he said.

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