DISOBEYING COURT ORDERS? ; THE RESURRECTION OF THE CULT OF STARLIN IN KENYA

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By Joshua Malidzo Nyawa.

By a mob of thin-necked leaders, half-men,
He uses their service, manipulating them:
Some are meowing or whistling, or whining,
He alone is poking, boking, and winning.
Like horseshoes, he grants his every decree
poking some in the groin, in the brow, in the eye.
His executions are like cakes and ale,
His broad chest of Ossete eclipses the jail
.

Osip Mandelstam in Stalin’s epigram, decries totalitarianism that Stalin exhibited in his leadership, Stalin is compared to horseshoes who grants his every decree, and he executes this decisions like cakes and ale. Stalin ruled by terror, all the citizens were expected to approve his ideology or suffer the consequences, which included inter alia elimination. In Kenya, dictatorship, disregard of court orders which seemed to be the wave of the past, age of the old, is today the wave of the present. It is a nightmare today, public officials have been affected by the cult of Stalin, ‘no law in Kenya, no courts in Kenya, only the public officials on the wall’. The public officials have become the law. Unfortunately what we have now is persons both ordinary mortals and persons in authority treating Court orders with unbridled contempt with blatant impunity. The cult of Stalin has resurrected in the form of cases which evince a headstrong contumaciousness proceeding from a bold impunity, open defiance or cynical disregard for the authority of the Court and the integrity of the judicial system Some of these officials behave as if there are above the law, Lord Denning once remarked that: “Be you ever so high, the law is above you. Disobedience towards court orders or decisions risks rendering our courts impotent and judicial authority a mere mockery.

Public officials and court orders

No man is above the law and no man is below it; nor do we ask any man’s permission to obey it. Obedience to the law is demanded as a right; not as a favour’’.

Article 159 vouchsafes judicial authority to the courts , Kenya being a constitutional democracy, The Constitution is the supreme law.  It is binding on all branches of government. The concept of Constitutionalism betokens limited government under the rule of law.  This is so because constitutionalism, accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck. Every organ of government has limited powers, none is inferior or superior to the other. Tribunals established under the Constitution and that it is a fundamental tenet of the rule of law that court orders must be obeyed and it is not open to any person or persons to choose whether or not to comply with or to ignore such orders as directed to him or them by a Court of law.

There has been an increasing trend by Government Ministers to behave as if they are in competition with the courts as to who has more “muscle” in certain matters where their decisions have been questioned, in court! Lenaola J (as he then was) held that Court orders must be obeyed whether one agrees with them or not. If one does not agree with an order, then he ought to, move the court to discharge the same. To blatantly ignore it and expect that the court would turn its eye away, is to underestimate and belittle the purpose for which Courts are set up.” The “essence” of contempt “lies in violating the dignity, repute or authority of the court.”

In Jones v Clinton an American decision, in which the President of the United States was adjudged to have been in contempt of court for his failure to obey that court’s discovery orders. Chief Judge Susan Welber Wright, after acknowledging that the President occupied a unique office with vast powers and responsibilities requiring that he devote his undivided time and attention to his public duties, nevertheless, and with and no pleasure in holding him in contempt, expressed herself thus;

In that regard, there simply is no escaping the fact that the President deliberately violated this Court’s discovery Orders and thereby undermined the integrity of the judicial system. Sanctions must be imposed, not only to redress the President’s misconduct, but to deter others who might themselves consider emulating the President of the United States by engaging in misconduct that undermines the integrity of the judicial system. Accordingly, the Court adjudges the President to be in civil contempt of court pursuant to Fred r. Civ, P 37(b)(2) for his willful failure to obey this Court’s discovery Orders .

A court order once issued, it binds all people, the mighty and the lowly, the ‘big fish ‘and the small fish”, in Martin Nyaga Wambora the Court stated:

We cannot over emphasis the fact that court orders once issued must be obeyed by those against whom they are directed unless or until they are either discharged or set aside. More so because once a court order is issued, it binds all and sundry, the mighty and the lowly equally, and the County Assembly and the Senate are no exception. The developing trend in our country where parties to litigation appear to be choosing which court orders to obey or disobey must be stopped in order to build the public confidence in the rule of law.

Court orders have the impelling force of rule of law and foundational constitutional values that governments must respect in order to preserve the ever fragile fabric of constitutional democracy, the existence of a government is only guaranteed when the citizens respect the law, when government fails to observe the law, the lowly in the society will also fail to observe the law, Justice Louis Brandeis once warned that:

In a Government of laws, existence of the Government will be imperiled if it fails to observe the law scrupulously… (G) Government is the potent and omnipotent teacher. For good or for ill, it teaches the whole people by its example… if the Government becomes a law breaker it breeds contempt for the law; it invites every man (or woman) to become a law unto himself (or herself); it invites anarchy.”

The same chronology has been emphasized by Odunga J that.

I must send a strong message to those who are intent in disobeying Court orders that such conduct will not be tolerated no matter the status of the contemnors in the society. When persons in authority themselves set out to disobey Court orders with impunity they must remember that they are sending wrong signals to ordinary Kenyans that it is proper to disobey Court orders with impunity which is a recipe for chaos

Citizens must obey the primary rules of obligation, the substantive rules of the society for the rule of law to exist. Public officials, in stark contrast, must both obey the primary rules and abide by the secondary rules or the internal morality of law: “a legal system exists only where the officials orient themselves internally to the same secondary rules, as a matter of common acceptance of the standards embodied in those rules.”

Why we should obey court orders?

Even though courts do not have the purse or sword to enforce their orders, the effect of their decision is binding in law’.

They are coercive in nature

In book The Law of Contempt Butterworths {1996} Pages 555-569, learned authors Nigel Lowe & Brenda Sufrin state a follows:

“Coercive orders made by the courts should be obeyed and undertakings formally given to the courts should be honored unless and until they are set aside. Furthermore it is generally no answer to an action for contempt that the order disobeyed or the undertaking broken should not have been made or accepted in the first place. The proper course if it is sought to challenge the order or undertaking is to apply to have it set aside.”

Court orders impose obligations when given, they cannot be second guessed, Ibrahim J (as he then was) stated as follows:

“It is essential for the maintenance of the Rule of Law and order that the authority and the dignity of our Courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against or in respect of whom, an order is made by Court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void.”

It is not upon the public official to determine the legality of such an order, when given, they are to be complied. The court has observed that:

A party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it…. It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid-whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question……he should apply to the court that it might be discharged. As long as it exists it must not be disobeyed.”

When courts issue orders, they do so not as suggestions or pleas to the persons at whom they are directed. Court orders issue ex cathedra, are compulsive, peremptory and expressly binding. It is not for any party; be he high or low, weak or mighty and quite regardless of his status or standing in society, to decide whether or not to obey; to choose which to obey and which to ignore or to negotiate the manner of his compliance.

Endurance of judicial authority and dignity

The contempt of court proceedings are intended not to protect personal dignity of the individual judge or the private rights of any litigant, but are meant to protect the fundamental supremacy of the law and the rule of law; a flagrant disobedience of court orders if allowed go on unchecked will result in the onset of erosion of judicial authority. The Court of Appeal, in the earlier cited case of Shimmers Plaza Ltd, put it well:

The dignity and authority of the court must be protected, and that is why those who flagrantly disobey them must be punished lest they lead us all to a state of anarchy.”

For maintenance of the rule of law

The rule of law is the bedrock of a democratic society. It is the only basis upon which individuals, private corporations, public bodies and the executive can order their lives and activities.

Obedience of court orders is one of the tenets of the rule of law. It is essential for the maintenance of the rule of law and good order that the authority and dignity of our courts is upheld at all times that all people respect the court orders. Lord President Clyde’s dictum in Johnson v Grant however cautioned that:

The law does not exist to protect the personal dignity of the judiciary nor the private rights of parties or litigants. It is not the dignity of the court which is offended. It is the fundamental supremacy of the law which is being challenged.”

In Kenya, the court of appeal has stated that:

That the power to punish for contempt has never been about protecting judges’ feelings, egos or dignity. The reason why courts will punish for contempt of court is to safeguard the rule of law which is fundamental in the administration of justice. It has nothing to do with the integrity of the judiciary or the court or even the personal ego of the presiding judge. Neither is it about placating the applicant who moves the court by taking out contempt proceedings. It is about preserving and safeguarding the rule of law. It is about assuring a party who walks through the justice door with a court order in his hands that the order will be obeyed by those to whom it is directed. A court order requiring compliance is not a mere suggestion or an opinion or a point of view. It is a command that is issued after much thought and with circumspection. It must therefore be complied with and it is in the interest of every person that this remains the case. To see it any other way is to open the door to chaos and anarchy. If one is dissatisfied with an order of the court, the avenues for challenging it are also set out in the law. Defiance should never be an option

Ndolo J has also observed that:

. The reason why courts will punish for contempt of court then is to safeguard the rule of law which is fundamental in the administration of justice. It has nothing to do with the integrity of the judiciary or the court or even the personal ego of the presiding judge. Neither is it about placating the applicant who moves the court by taking out contempt proceedings. It is about preserving and safeguarding the rule of law.”

The reason why power is vested in courts to punish for contempt of court is but to safeguard the rule of law which is fundamental in the administration of justice. The law of contempt has evolved over time in order to maintain the supremacy of the law and the respect for law and order. As it was in the time of Chief Justice McKean in 1778, so it is today that courts have a duty to ensure that citizens bend to the law and not vice versa. Indeed, if respect for law and order never existed, life in society would be but short, brutish and nasty. It is the supremacy of the law and the ultimate administration of justice that is usually under challenge when contempt of court is committed. This is so because, a party who obtains an order from Court must be certain that the order will be obeyed by those to whom it is directed. As such, the obedience of a court order is fundamental to the administration of justice and rule of law. A court order once issued binds all and sundry, the mighty and the lowly equally without exception. An order is meant to be obeyed and not otherwise.

The role of courts in a democracy

Contempt of Court is such a ‘grotesque monster’ that the courts should hound it wherever it rears its ugly head and wherever it seeks to take cover behind any craft or innovation The courts should not be helpless and fold their hands when their orders are disobeyed, this would amount to abdication of their sacrosanct duty bestowed on them by the Constitution. The dignity, and authority of the Court must be protected, and that is why those who flagrantly disobey them must be punished, lest they lead us all to a state of anarchy.When public officials disobey the court orders, they question the authority of the courts, and failure to punish them will be encouraging such violation... The Courts do not, and ought not to be seen to, make Orders in vain; otherwise the Courts would be exposed to ridicule, and no agency of the Constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people. The role of the judges is to suppress force and fraud, the disregard of the authority of the judiciary is the exertion of force by the executive, the judges should be prepared to confront it. The second role of the judge in a democracy is to protect the constitution and democracy itself.Even when there is no written law to impose the obligations

Mr. Justice Wilmot claimed in his celebrated opinion in The King v. Almon,’ the power of the courts to punish contempts committed against their dignity and authority is coeval with their very first foundations

The courts should not be allowed to be reduced to futile institutions spewing forth orders in vain.”, they should not be left ‘baby-sitting’ its orders while those to whom the orders are directed are carrying on their business unperturbed.The object of contempt proceedings is to impose a penalty that will vindicate the court’s honour, consequent upon the disregard of its previous order, as well as to compel performance in accordance with the previous order. It is the duty of the court to uphold its own dignity and see that its authority is respected by the practitioners before the court.” Judges need to adopt the concept of Defensive democracy in Israel and Militant democracy in Germany,

Conclusion

Surely the authors of the Constitution viewed Judges as equally human. The creation of a judicial hierarchy that provides for appeals attests to this understanding. Like administrators, Judges are capable of serious error. Nevertheless, judicial orders wrongly issued are not nullities. They exist in fact and may have legal consequences. Allowing parties to ignore court orders would shake the foundations of the law, and compromise the status and constitutional mandate of the courts. The duty to obey court orders is the stanchion around which a state founded on the supremacy of the Constitution and the rule of law is built.

Finally, let me adopt the following words:

The struggle for the law is unceasing. The need to watch over the rule of law exists at all times. Trees that we have nurtured for many years may be uprooted with one stroke of the axe. We must never relax the protection of the rule of law. All of us – all branches of government, all parties and factions, all institutions – must protect our young democracy. This protective role is conferred on the judiciary as a whole, and on the Supreme Court in particular. Once again we, the judges of this generation, are charged with watching over our basic values and protecting them against those who challenge them.

No law in Kenya,

No courts in Kenya,

No rules in Kenya,

Only public officials on the wall!

Joshua Malidzo nyawa