Miguna: Kibaki is Courting Anarchy

[Onyango Oloo]

THE PRESIDENT IS COURTING ANRCHY BY DISOBEYING COURT ORDERS

By MIGUNA MIGUNA* - 16 October 2005

Revised and Edited Version:

Although our current constitution does not explicitly state that the president is above the law, in reality, because of various fundamental weaknesses of the current constitution, president Kibaki has conducted himself in a manner suggesting that he believes that he is, in fact, beyond any legal restrictions. The problem is compounded by the fact that the Wako concoction that President Kibaki insists is “the best constitution in the world” does not offer any control levers to the run-away presidential powers.

By publicly issuing title deeds to 1,200 members of the Ogiek community that his government had brutally and forcefully removed from their homes and farms in July this year, even after a High Court Judge in Nakuru had clearly ordered his government not to do so, President Kibaki has demonstrated one significant danger of not having strong constitutional controls over the executive.

A week or so ago, President Kibaki had also purported to allocate (or revert) the Amboseli Game Reserve to the Maa community. And a few days ago, the local Kenyan media carried stories about an array of goodies and promises Kibaki had given to Charity Ngilu in exchange for her stay in the Banana/Yes campaign. It is increasingly becoming embarrassing to watch the blatant, flagrant and consistent disregard of the laws of Kenya by this government and its chief executive.

Our worries and concerns are out of recognition of the fact that the president is supposed to be the custodian of both the laws and the constitution of Kenya. By openly breaking, disregarding and violating the very laws that he swore an oath to protect, safeguard and enforce, the president is courting anarchy.

The current trend shows why it is necessary, in a democracy, to separate the executive arm of government from both the judiciary and the legislature. Absent effective legal and constitutional controls, the executive is always prone to act with impunity, especially where it deems it expedient.

President Kibaki did not issue the 1,200 title deeds yesterday out of compassion. It would be very difficult for the Kibaki government to convince Kenyans that a valid court order was violated by the chief legal custodian of the Republic of Kenya because of his deep sympathetic concerns for the suffering of the Ogiek, or due to his inclination to give aid or support, or to show mercy for the suffering Kenyans. This government is not well known for its sympathy towards the suffering Kenyans.

After all, if truth be told, the 1,200 Ogiek that were issued title deeds the other day were rendered homeless by the Kenyan police, General Service Unit brigades and bands of armed men and women at the command of both the Ministers of Internal Security and Lands. Kenyans still recall vividly the chilling remarks of one Amos Kimunya, who also happens to be Kibaki’s Minister for Lands and Settlement, that the title deeds the Ogiek held, before their forceful removal, were “mere pieces of paper” that the government of Kenya did not recognize. When did the Kenyan government change its mind and why?

The timing of President Kibaki’s issuance of the 1,200 title deeds coincides with a spirited campaign by the Orange Democratic Movement to have Kenyans reject the Wako Draft Constitution on November 21st. One would therefore be forgiven for wondering whether this is not but this government’s latest political gimmick to influence votes in the greater Rift Valley Province ahead of the November polls.

It is difficult for this government to acquit itself of the accusation that it is trying to buy votes through these unusual, generous, irregular and at times illegal pronouncements. Since when did the president become the Commissioner of Lands to issue title deeds to Kenyans?

Legally, the president should have absolutely no role to play in the determination, assessment or allocation of land to the people of Kenya. Being a practicing partisan politician (i.e. head of the Democratic Party of Kenya), it is very easy for his judgment to be coloured by secondary and irrelevant considerations. The sensitive issue of land allocation ought to be done by a professional body or entity without any regard to party or political affiliations.

Needless to say, the Ogieks are but a small fraction of Kenyans who have been rendered homeless by direct (past and present) brutal government action and/or policies. There are millions upon millions of other Kenyans that live in squalor, homelessness, as squatters, on the streets and without the basic necessities of life, that are also deserving of compassion, but who have not been so “lucky” because they have long ceased to be political dynamites or hot-buttons, ready to be mined or converted into quick expedient referendum votes for the beleaguered Banana regime. That is a pity.

President Kibaki did not issue the 1,200 title deeds to the Ogiek because of a sense of moral duty. He did not do it because he felt guilty of his government’s brutal and forceful eviction of the Ogiek. Had moral and ethical considerations been the principal foundation for the president’s action, it would not have taken him more than three months to show his newly found magnanimity.

We need to remember that the president never publicly apologized for his government’s actions in the evictions. Although he claimed that he was simply implementing something that his government had planned before the referendum date was set, one cannot help but wonder about the timing and nature of the hand-out ceremony.

Since taking power in December 2002, it has been extremely rare for President Kibaki to show public sympathy to Kenyans, even when they have faced catastrophe like the massacres in Marsabit in July this year. In fact, most Kenyans have complained endlessly about the president’s detachment, his failure, refusal or reluctance to meet with Kenyans, whether in times of joy or sadness. It is therefore suspicious for the president to suddenly appear keen to assuage the feelings of the Ogiek with a seven-month old pitiful embrace.

While some critics of this government have questioned why the Chief Justice did not advise President Kibaki not to disobey a valid court order, others, like Paul Muite, have argued that the president was not bound to follow an “illegitimate order.” There are two problems with both positions.

Firstly, section 26(2) of the Kenyan Constitution states that “[T]he Attorney-General shall be the principal legal adviser to the Government of Kenya.” It is not the Chief Justice’s role to advise the government on anything. The Chief Justice, like any other judge, is a judicial officer, and he can only deal with matters and disputes that are brought before him for determination or direction. If there was either a lack of advice, or an improper advice given to this government, that failure, like with the preparation of the Mongrel Draft, lies at the feet of Amos Wako.

And secondly, with respect to Hon. Muite’s misplaced assertion that President Kibaki rightly disobeyed a court order, because the order was a bad order, one wonders how Muite, who is supposed to be a Senior Counsel, does not realize that the only authority that can decide whether the order in question ought to be set aside or quashed, and therefore not followed, is the Court of Appeal, upon a proper review of the order. It is not up to Paul Muite to tell Kenyans or President Kibaki which orders are proper and which ones are faulty.

Before a valid court order is set aside, quashed or varied, all law abiding citizens, including Muite and Kibaki, must obey it. To do otherwise would be tantamount to contempt. It would also set in motion flagrant violations that can lead to anarchy. This must never be allowed to happen if Kenya, as a democracy, is to remain a country governed by the Rule of Law. Contrary to popular opinion, the president is not above the law.

______________________________________________________________________

*The writer is a Kenyan practicing law in Toronto, Canada

[kamalet]

You have gone out of your way to condemn Kibaki for breaking the law without actually reading the ruling from Justice Musinga. Obviously you have relied entirely on media reports of the case which sometimes can be very misleading, and in the present political environment it is very possible to angle the story in a manner that suits an agenda - which is exactly what you have done! I am sure as a lawyer you would have waited to see the order as granted before going out of your way to condemn!!

I have gone a step further to call a state counsel at the AG's chambers to establish the exact position on the order. According to the order, the prohibition was issued to the commissioner of lands, the registrar of titles and their agents from issuing title deeds to the Ogieks. The AG contends that the titles had been issued and signed by the commissioner of lands/registrar of titles long before the order was obtained, hence the handing over of the Deeds by Kibaki cannot be construed to mean issuing, Kibaki (and also read the President) does not issue title deeds. On the basis of this interpretation, Kibaki could not have ignored a court order that had clearly been overtaken by events!!

Hey, but this is political season when even reason is shunted aside!!!

[Onyango Oloo]

The old essay has been updated and replaced by a newer version.

administrator

[aeichener]

For natural forests (including coastal and Mt. Kenya communitarian shrine forests), we should best go back to an exclusive system of traditional (id est customary law) land tenure in a trusteeship sense (in civil parlance: "right of usufruct"), and eschewing statutory tenure (what we call "ownership" in the legal sense of freehold tenure) altogether.

That is the whole problem succinctly described in a single sentence. Praise me ! ;-)

Alexander

[miguna]

Kamau:

I want o be fair to you and concede one thing - I have not ordered, received and read the Court Order. However, you should also be fair to concede that you haven't, either. You say that you "spoke" with a "state counsel." That hardly qualifies as "seeing", "reviewing" or "reading" a court order. One would have to take one long leap and a hop before trusting what you were told. First, we are to 100% trust the "state counsel" for ralying to you "word for word" the contents of that order. And second, we must trust you 100% for telling us exactly what you were told. Now, my friend, why would I want to do that? Why exactly must I trust both of you? And why should I trust you and not the local newspapers that covered the story? Between you, Kamau, and those independent newspaper reporters, who is "objective." Who, indeed, between you and they, should be trusted to communicate this information to the public? After all, the newspapers were presumably doing their "job" were they not? Now, on whose behalf are you telling me this? Just for the sake of debate?

Anyway, you know that, unlike here, the Kenyan courts do not have an electronic reporting system. There is absolutely no way I could have obtained the court order as you have suggested. If we were to wait until we have received original or certified copies of orders from courts or statements from our politicians, believe you me, Kamau, we would be a country of 30 million mutes. Is that what you would prefer?

On the issue of the meaning of "issuing," my small dictionary defines it as "giving out." You may quarrel with me as to when the title deeds were "given out" to the Ogieks and by whom, however, I believe that a large majority of Kenyans watched and listened to Kibaki "giving out" those 1,200 title deeds the other day. They were not "given out" to the Ogieks by the commissioner of lands, etc.

And finally, the injunction was issued against the government of Kenya, whose departmental representatives happened to be the characters you listed. These characters did not have the order issued against them in their personal capacities, did they?

I rest my case here.

Peace. [unedited]

MIGUNA

[aeichener]

One who can't and won't even get the *number* of alleged title deeds right - as the most basic fact -, should accept Kamalet's criticism a bit more humbly and contritely. Especially if he has obviously not understood the legal distinction which is being disputed above.

Alexander

[miguna]

Kamau:

Let me complete my response to you. I had to run earlier due to time constraints.

Court Orders
There are two types of orders – oral and written. If this oral order was an oral one, then I could not have obtained it even if I had tried. Nonetheless, those who were present in court and heard the order being issued, for instance, media personnel, could very well carry full, brief or summary reports of the order. The public can consequently rely on those reports, like I did. In the even of any disputes regarding the wording, effect or interpretation of the order, the clarification must be either obtained through lawyers or the judge that issued that order. However, with respect to written orders, assuming that the order is issued in writing when rendered, which is rare, then, of course, we can either rely on the contents of that order, as issued, a summary or report of the same. Until or unless you can point out the error in the version of the order I read in the newspapers my friend, I will rely on it completely. You have to bear in mind that the High Court retains the jurisdiction over this matter and it can restrain, censure, cite or punish anybody who misreports, misquotes or misconstrues its orders, including the journalists.

Injunction

My friend, an injunction, which was the order given, is simply a writ or order by a superior court commanding / directing/ enjoining a party (in this case, the Kenyan government) from a given course of action ( in this case, from “giving out” title deeds to the Ogiek).

The court commanded the government (which was a party represented in this case by the Commissioner for Lands, among others) not to give out the title deeds. Whether the title deeds had been printed or not is not the issue. We know that the Ogiek had no access to the Government Printers and could not have been deemed to have been “given” the deeds only by virtue of the same having been printed or signed by the Commissioner for Lands.

There you have it.

Peace

[kamalet]

I would have at least hoped that you have read the government proceedings Act. There is no way you can injunct the government from operating (remember separation of powers 101?). You can only go to court for judicial review and seek an order of prohibition as opposed to a restraining injunction as described in the civil procedure rules.

In applying for judicial review, you seek the order of prohibition and the orders on judicial review are NEVER oral.

On this matter of the Ogieks order, you do not need to trust me and I am happy if you wish to trust Kenya Times as your source of the story. All I did was offer a more reliable source of information - but as you can see, and as I suggested, the desired angle of the story must be maintained irrespective of the correct position.

Miguna, you are a lawyer and on matters legal, I cannot argue with you. But should you also not try and seek out the correct position, rather than give opinions on matters you are not fully seized of. Remember every time you sign off as a 'Kenyan practising law in Toronto' people look up to you for an honest legal interpretation!

[abdulmote]

But then the President could rightfully occupy and by extention, the position of the Commissioner's agents! His seniority of status should not hoodwing you to believe that he ain't. I am sure when the Judge issued that order and bothered to include the Agents as well, such a scenario as Kibaki had undertaken to play could only have been one of them, it is as simple as that.

Kamale, I just wonder how 'painful' it can be for a person such as you are, to simply pretend to have that level of narrow mindedness, be it for whatever the motives behind it.

Pole ndugu.

[Onyango Oloo]

kamalet said:

I would have at least hoped that you have read the government proceedings Act. There is no way you can injunct the government from operating (remember separation of powers 101?). You can only go to court for judicial review and seek an order of prohibition as opposed to a restraining injunction as described in the civil procedure rules.

In applying for judicial review, you seek the order of prohibition and the orders on judicial review are NEVER oral.

On this matter of the Ogieks order, you do not need to trust me and I am happy if you wish to trust Kenya Times as your source of the story. All I did was offer a more reliable source of information - but as you can see, and as I suggested, the desired angle of the story must be maintained irrespective of the correct position.

Miguna, you are a lawyer and on matters legal, I cannot argue with you. But should you also not try and seek out the correct position, rather than give opinions on matters you are not fully seized of. Remember every time you sign off as a 'Kenyan practising law in Toronto' people look up to you for an honest legal interpretation!

Kamale:

What do you think of this statement from the Ogieks:

jukwaa.proboards58.com/index.cgi?board=general&action=display&thread=1129573062

[kamalet]

abdulmote said:

But then the President could rightfully occupy and by extention, the position of the Commissioner's agents! His seniority of status should not hoodwing you to believe that he ain't. I am sure when the Judge issued that order and bothered to include the Agents as well, such a scenario as Kibaki had undertaken to play could only have been one of them, it is as simple as that.

Kamale, I just wonder how 'painful' it can be for a person such as you are, to simply pretend to have that level of narrow mindedness, be it for whatever the motives behind it.

Pole ndugu.

Abdulmote,

If you are sure of what you say, I sincerely cannot fault you. As I said I am not a lawyer, so even your interpretation might be right.

Regrettably, I do not suck up to people nor do I just criticise or blindly follow for the sake of it, so the issue of pain would hardly arise.

You know, if we treated each other as adults, then we can disagree without degrading ourselves to mind readers etc. Are you up to the challenge?

[abdulmote]

Kamale ndugu,

My response to your observations above, were only as a reaction to your perceptions as I imagined they could have been. Nothing, sincerely and honestly, malicious! How, you may ask?

I honestly and sincerely just as well, never imagined that you may not possess the capacity to objectively interpret such an order as it should have been, so as to include the President as 'an agent of'. I certainly respected your abilities and still do, and confidently take you as an intelligent and perhaps even wise a man among the exceptional few!

May be then, I may have overestimated your abilities and perhaps wrongfully so. If that be the case, Kamale, I sincerely and honestly appologise. I fully do recognise the very real possibility of mygoodself making an erronous judgement, uninentionally or perhaps even recklessly so. Msamaha nauomba tena.

On the other hand, it certainly falls upon each and everyone of us, to vigilantly and readily question any suspicious and wrongful acts, which may be a reflection of the breach of law against the honorable public, without fear, favour or any other malicious reasons.

[job]

Kamale,

If I may chip in with my two cents, (I'm not a lawyer) ; I read not just from -The Kenya Times- but also from both , The Standard & Daily Nation on this -Ogiek- subject matter.

Articles attributed to the LSK, & other Counsel's in those dailies, basically concurred with Miguna's argument.

Likewise I spotted some contrary statements attributed to Kibaki proponents like Muite, absolving him from any blame, infact cheering his buffling act.

Hence this could just be another healthy debate if we stick to the core of Miguna's article. The impunity by which the excesses of the Presidency & arrogance of it's holder, is being rubbed publicly in our face begs for question.

Do we really need to physically scrutinize the Court order before we can comment whether Kibaki has disregarded the law or what? Is Kibaki just a victim of bad Media? May be, may be not.

Isn't this not another case of capitalization on Constitutional loopholes to achieve selfish political interests? Unfortunately I don't think any damage previously done to the Ogiek will be controlled by this act.

Lastly did I not also hear some insinuations about some non-Ogiek's benefitting from titles under the guise of "Ogieks". Just pondering without malice.

We really need to stop being clever with one another, Kenya in 2005 is a very enlightened society.

peace.

unedited.

Job.

[kichwambaya]

Kamale wrote-"I have gone a step further to call a state counsel at the AG's chambers to establish the exact position on the order. According to the order, the prohibition was issued to the commissioner of lands, the registrar of titles and their agents from issuing title deeds to the Ogieks. The AG contends that the titles had been issued and signed by the commissioner of lands/registrar of titles long before the order was obtained, hence the handing over of the Deeds by Kibaki cannot be construed to mean issuing, Kibaki (and also read the President) does not issue title deeds. On the basis of this interpretation, Kibaki could not have ignored a court order that had clearly been overtaken by events!!

I am not a lawyer either but I play one on occasionally-seriously, I found above section puzzling. I thought the commissioner of lands was apart of the executive branch and Kibaki was his boss. I also thought that an injuction was obtained so that "the issued deeds should not be "handed over" to the Ogieks. I am here thinking that "issueing" includes "handing over", If you print the deeds and don't hand them over then you probably have not "issued" them. Kibaki here completed the "issueing" by "handing over) the deeds according to my thinking here. How can he turn around and say "he had nothing to do with the issuance of the deeds, while he is the one who gave them the possession of the deeds despite a court order, notwithstanding being the chief executive. I am scraching my head.

Let us use another example. Kenyan citizenship papers are printed out to qualified immigrants by immigration department, but a day before they are "handing over" ceremony by the president, the court enters an order against the "issuance" of the papers. According to Kamale's argument the president should just go ahead with the citizenship ceremony, because the injuction came after the papers were printed and also because the president is not the one who "issued" them. I hope its your turn to scratch your head now.

[kamalet]

Kichwambaya,

You are right none of us is a lawyer hence we can interprete this thing whichever way. As I said, I spoke to a state counsel whose interpretation I repeated. When we are at it, since the order was not being served through the media, and since Kibaki was not served with the order - would he still be in contempt? Swali tu!

Was Kibaki right or wrong? I am certain this issue will be resolved at the inter-party hearing.

As things stand, I will trust the AG's office that any other opinion.

[aeichener]

The (fairly simple) legal question is whether the service of the deed is integral part of "issuance", or whether granting, registration and signing already complete and constitute the land title. Incidentally, some of the legal questions and opinions are covered in a "Nation" article, which is not as bad as I feared:

www.nationmedia.com/dailynation/nmgcontententry.asp?category_id=39&newsid=59621

Kichwambaya had already covered this quite well, so I am basically repeating after him (*bows politely*). Incidentally, skip the plural "s" after Ogiek - this word is already plural, while its singular is "Ogiot".

Alexander

[miguna]

Kamau:

I just wanted to tell you that the issue of service is irrelevant. Firstly, the Kenya Government was a party at or to the hearing. The government was also represented by counsel. When the Court issued the order, it was binding, as of the time the order was issued, on all the parties concerned. Remember that the judiciary is but one arm of government. As you had correctly stated, there are three arms - judiciary, the legislature & the executive. Although these three arms are supposed to be independent of each other (which is why I am opposed to the Wako Mongrel, as it does not do this effectively), in Kenya, the president's powers overarchs and undermines the judiciary. In fact, the president appoints and fires all the judges. It is therefore an act of deceit to pretend that there is a practical seperation of powers in Kenya. It is something that Kenyans want, need and have demanded. But it is something they are yet to get, and is being delayed, mainly because of Kibaki's little tricks...

And secondly, you are wrong about injuctions. Yes, courts can issue injunctive orerds against governments. Whether or not those governments choose to obey the orders is, of course, another matter. In any event, if the Kenya Government believed that the court exceeded its jurisdiction, acted ultra vires or committed any number of errors that you want to cite, the appropriate forum for doing so, in Kenya, is the Court of Appeal. This is similar to whay your friend Murungaru is doing - trying to challenge the decision of the UK government in cancelling his travel visa. His court action has been variously referred to as "Murungaru suing the UK Government" even though, he has simply sought JR. But the essence of it is that, despite contrary opinions as the validity of his legal action, he has taken his case to court. This is the way it should be. For you to argue that no court of competent jurisdiction (and the High Court of Kenya is) can stop the government from doing anything is actually to suggest that the government, as a legal entity / party/ person is above the law. Incidentally, my article was on Kibaki's arbitrary disregard for court orders. I have never equated Kibaki with the "government." I thought that he was the head of the government and not the government itself. But then again, we are talking of Kenya....very little has changed....

In a way, you have done nothing but prove the central thesis of my argument; that even though there is no constitutional provision granting Kibaki powers over and above the laws of Kenya, he acts as if he is above the law. And that, my brother, is wrong, must be opposed, and cannot be tolerated.

If your arguments were legally correct, my brother, then Saddam Hussein would be laughing in Bagdad at the moment because, presumably, as the head of state in Iraq when he was supposed to have committed all the atrocities they have charged him with, no court in Iraq would have jurisdiction over him...Alternatively Kamau, you would be suggesting that Iraqis should have tried to judicially review his actions against them in Iraqi courts as the alleged atrocities were occurring. The same argument can be made with regard to the KANU atrocities (when Kibaki was a Cabinet Minister and then Vice President, then a Cabinet Minster again).... Kenyans should have simply tried to judicially review KANU/Moi's actions!

Do you now see how ridiculous you are?

And yet all you can do is tell us that you have chosen to "trust" the "state counsel" and the "AG's Office." Give me a big BREAK Kamau, will you?

I could have decided to write an article on "trust" or any of those "nice" words you have used. But no. I actually never used the word "trust" in my piece, because in matters of law, Kamau, trust is irrelevant.

As for my professional designations, yes, I wear them with pride. However, I have never ever argued that anyone should "trust" or "believe" what I am saying, merely because of those designations. Far from it. I hope that we can avoid this tendency of dragging in things that have no bearing on the issues at hand.

PS: I enjoyed watching the Banana & Orange teams "debate" yesterday. But tell me, what is your take on this rumour in Nairobi streets about an impending snap election? What do your "sources" say, or this is just another rumour from the Nairobi Bars?


Peace. [unedited]