The Judiciary has again begun to forcefully assert itself on the breakdown of the rule of law exemplified by the Executive’s willful refusal to obey court orders.
This has increasingly stronger criticism nationally and internationally in recent days.
Prefacing an unexpected statement with the comment that the "CJ does not ordinarily comment on matters that are actively before the court," Chief Justice David Maraga yesterday said that in the last few days "there have been worrying developments that threaten the rule of law" in Kenya. The CJ made it clear that those who disobey the law, however elevated, will be punished.
What has been before the courts is the executive’s spurning of orders to lift the ban on broadcasters and to release Miguna Miguna.
Since the day rightly belonged to this powerful statement by the Chief Justice, strong remarks by High Court Judge Luka Kimaru in the Miguna case did not attract much coverage.
But they pose a direct challenge to key state officers who are central to Uhuru Kenyatta’s unlawful crackdown and have brazenly disregarded court orders.
Justice Kimaru said that there had not only been an obvious contempt of court by the IGP Joseph Boinnet and DCI head George Kinoti, but “a deliberate attempt by the security agencies to subvert the rule of law in Kenya.”
He ordered the two officials to swear an affidavit by Friday explaining why they should not be punished for handing Mr Miguna to the Immigration Department when there was a lawful order to them to produce him in Court.
Justice Kimaru emphasized the two were required to appear in his court IN PERSON at Wednesday’s hearing. The Director of Immigration was given similar orders to explain why he took custody of Mr Miguna when he was aware that Mr. Miguna was under the custody of the Court awaiting his release.
The Court had electrified the nation with its September annulment of the presidential election in which President Uhuru Kenyatta had been declared the winner.
The Court boldly pointed out then that it would not hesitate to annul the next election if it did not meet the constitutional criteria that the September poll had not met.
Then the Court suffered a severe setback in October: after the Deputy CJ’s driver and bodyguard was shot and wounded, it was unable to raise a quorum to hear the pivotal case on whether IEBC would be able to conduct a free and fair election on October 26.
New laws were introduced that month which would make it much harder for the court to annul an election.
But two weeks ago, the Chief Justice came into the limelight when he asserted that he had no authority under the Constitution to direct the judiciary on whether a swearing in that was being planned for Mr Raila Odinga would breach the law.
Yesterday’s developments have again put the courts at the heart centre of the political events that are unfolding.
The writer is Raila Odinga's communication adviser