Acrimony over the proposed draft Constitution heightened last week when the president issued 12,000 title deeds to members of the Ogiek community.
This was despite an injunction issued by the High Court in Nakuru barring the exercise. The action has been perceived as yet another attempt to influence the public to vote for the Wako draft. Politicians and jurists see it as a blow to the rule of law.
On the other hand, it has been argued that issuing of the controversial title deeds by the president was a mere formality as the excision and registration of the land in question had been done before the court injunction was issued.
Local Government Assistant Minister Maina Kamanda said the president had not violated any law, as the court injunction was not addressed to him.
The issue brings into focus the long running debate on the extent of the president's constitutional powers, one of the reasons for the clamour to have the country's constitution overhauled.
WHERE THE law makes generous exceptions to the president's duty to submit to its other provisions, does he dishonuor the rule of law by committing acts that are, arguably, envisaged under those exceptions?
To put it simply, the rule of law doctrine requires adherence to the law by everyone without exception. As memorably surmised by Prof A.V Dicey in his Law of the Constitution. "Every official, from the prime minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen," he wrote.
The question that arises therefore is whether there is any legal justification for the president to conduct an exercise that negates the substance of a valid court order. The matter requires a thorough interrogation of the very duty to submit to orders of the court - what law requires one to obey orders of the court? In what way is acting contrary to the terms of a court order illegal?
A careful look at our entire body of constitutional and statutory law reveals that there exists no general and express duty to abide by court orders. The justification for adherence to court orders derives chiefly from the court's constitutional prerogative to cite individuals for contempt of court.
Here, it must be recalled that the distinguishing factor between law and mere moral obligation lies in enforceability; a law that is unenforceable is no law at all. Therefore, under Kenya's present legal order, where no law explicitly requires all citizens to abide by any order that the courts may issue, the legal duty to obey the court is hinged purely on its power to cite for contempt. Remove the courts' ability to institute contempt proceedings and judicial orders have no effect.
This observation yields an interesting conclusion when read alongside section 14 of the constitution of Kenya. It states: "No criminal proceedings whatsoever shall be instituted or continued against the president while he holds office, or against any person while he is exercising the functions of the office of President."
To put it differently, a president is, for the duration of his term, immune from criminal proceedings, including those for contempt of court. This points to a formidable lacuna in the Kenyan legal system; that there exists no mechanism to compel the president's conduct to be in keeping with the dictates of court orders raises doubts as to his very obligation to adhere to the same.
That contempt proceedings may nevertheless be commenced against the president upon vacating his office - subject to pertinent laws on limitation and immunity for official acts - is of no practical effect. In essence, there is nothing that proscribes conduct on the part of the president that in effect frustrates a judicial decree.
TO THEN say that the president's role in last week's issuance of title deeds despite a court order barring the same flies in the face of the rule of law is manifestly inaccurate.
Without a doubt, a situation where every duly issued court order is followed to the letter is both desirable and necessary for the proper operation of government. However, in the absence of legal mechanisms to actualise this ideal, a situation of absolute compliance must remain a figment of aspiration - far removed from the political realities of a constitutional order whose provision for balance of powers is tilted in disproportionate favour of the executive arm of government.
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