ICJ wants Matiangi, Boinnet and Mucheru punished for defying courts

Interior Cabinet Secretary Fred Matiang'i speaks on the TV stations shutdown at Harambee House in Nairobi, flanked by PS Karanja Kibicho and ICT minister Joe Mucheru, January 31, 2018. /JACK OWUOR
Interior Cabinet Secretary Fred Matiang'i speaks on the TV stations shutdown at Harambee House in Nairobi, flanked by PS Karanja Kibicho and ICT minister Joe Mucheru, January 31, 2018. /JACK OWUOR

A lobby group is pushing for public officers who violate the constitution and disregard court orders to be declared unfit for service.

International Commission of Jurists (ICJ-K) is planning public interest litigation against officers who operate "in

a manner that paints high levels of impunity".

Those targeted include Interior cabinet secretary Fred Matiang'i, ICT's Joe Mucheru, IG Joseph Boinnet and commanders of various police units.

"We are going to mobilise over 500 lawyers, who are our members, to mount public interest litigation against individual officers for the benefit of Kenyans," said ICJ vice chair Patrick Ngunjiri.

"We will also request

them to volunteer their services in all cases of these systematic repression. We will join cases the cases as amicus curiae.

"We remind all state and public officers that the corporate veil under which they act can be lifted with individualised consequences including declarations of unsuitability to hold public positions in Kenya."

ICJ further noted all cases in court proceed to their logical conclusion and that government officers must therefore desist from complying with oral or informal executive orders.

The organisation added that all executive orders must be in writing and that

officers acting on them should be held personally liable for contempt of court.

"Constitutionalism isn't about blind or robotic adherence to enforcement of laws, no matter how retrogressive they might be,"

Ngunjiri said on Wednesday, and expressed solidarity with the judiciary for standing out.

He continued: "The constitution places little trust in the presidency. This is evident in article 135 which requires a decision of the president in the performance of his function under this constitution to be in writing and bear the seal and the signature of the president.

"The effect of this is that any decision of the president that is not in writing is illegal."

Chief Justice David Maraga earlier said disobeying court orders is inimical to the rule of law. He

added that compliance with court orders is not an option for any individual or institution.

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The jurists condemned what they termed "increasing and blatant disregard" of court orders by the government and its agents.

They said they have observed that the Jubilee administration perceives and understands itself to be above the law.

ICJ chair Kelvin Mogeni said:

"We categorically denounce these actions and urge the people of Kenya not to sit back and watch as the government, which is under obligation to respect the courts, breaches state obligations to respect the independence of the judiciary and judicial authority."

He cited failure by the state to take lawyer Miguna Miguna in court, defiance to switch on television stations and reinstatement of Communications Authority of Kenya chairman Wangusi despite court orders.

Regarding the crackdown on Nasa politicians, ICJ said the intimidation and manner of arrest, movement of arrested persons and incommunicado detention and denial of legal representation cumulatively amount to cruel degrading and inhumane treatment.

"Irrespective of one's political inclinations, the right of individuals are not suspended at whims of the state. These are fundamental rights which are intended to balance state power and which cannot be abrogated," Mogeni said.

Noting the manner in which security agents have aided and abetted executive action is unjustifiable, he questioned the reconstruction and transformative agenda of the security sector.

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