When Will Government Officials Be Held Accountable for Ignoring Court Orders?

Nairobi, Kenya – In 2017, while nullifying the presidential election, former Chief Justice David Maraga said, “The greatness of any nation lies in its fidelity to the Constitution and adherence to the rule of law, and above all, respect to God.”  This statement spoke volumes about the judiciary’s vital role in upholding democracy and highlighted the perils of a nation that disregards the rule of law.

When legal principles are ignored, a nation can easily descend into chaos, where power overtakes justice and societal foundations crumble. Today, these very foundations are being threatened as government officials repeatedly defy court orders with impunity.

From the highest echelons of the executive branch to key institutions like the police, and extending to ordinary citizens in even the most remote areas, the disregard for the law is pervasive. Picture a country where laws are treated as mere suggestions, selectively obeyed by those in power. In such a scenario, accountability deteriorates, and citizens become vulnerable to the whims of the powerful. This is the grim reality Kenya faces as top officials consistently flout court orders.

Acting Inspector General Gilbert Masengeli epitomizes this trend of judicial defiance. His repeated refusal to comply with court orders concerning the disappearance of three protesters underscores a broader issue. The most recent order demanding the production of these protesters was ignored, leaving families without answers and justice unattained. This blatant defiance signals a troubling trajectory for the nation.

Human rights groups and civil society organizations have condemned Masengeli’s actions, warning that such blatant disregard for the law reflects a dangerous level of impunity. If unchecked, this behavior could set a precedent for other officials to similarly flout the law, leading to widespread lawlessness.

Masengeli’s defiance may well have been inspired by his predecessor, Japheth Koome and even the head of state himself. President William Ruto and his administration have faced criticism for ignoring court orders as well. For instance, the government continued to implement the housing levy despite a High Court order halting it. The President has previously claimed that courts obstruct his development projects, and in one case, instructed the Principal Secretary for Roads to proceed with a construction project under judicial review.

In a joint statement, the Kenya Human Rights Commission (KHRC), Muslims for Human Rights (MUHURI), and the Social Justice Center Working Group (SJCWG) criticized President Ruto for actions that undermine the judiciary. Civil society groups have urged Kenyans and the legal community to file complaints with the Law Society of Kenya against the Attorney-General and Solicitor General for inadequate legal advice on the judiciary’s role. They continue to call on all Kenyans to uphold and defend the Constitution.

Kenya’s Constitution explicitly mandates adherence to the rule of law. Article 10 identifies it as a national value and principle of governance, binding all public officials to obey court rulings. Article 159 affirms that “judicial authority is derived from the people.” Ignoring court orders thus challenges the very people who constitute the nation.

The Contempt of Court Act 2016 prescribes penalties for defying court orders, including up to six months’ imprisonment or fines of up to KSh 200,000. Section 72 of the Penal Code also criminalizes disobeying lawful orders, with penalties of up to two years in prison or a fine.

Despite these clear legal provisions, top officials like Acting Police Chief Masengeli continue to flout court orders. His failure to produce missing protesters undermines justice and threatens the rule of law. This disregard extends to the county level, where local executives in Nakuru County have ignored a court order to restore the management of Nakuru War Memorial Hospital. This erosion of respect for court rulings impacts essential public services.

Senior legal counsel Gibson Kamau Kuria, in a 2014 paper presented at the Law Society Conference, addressed the issue of disobedience of court orders. Kuria emphasized that all branches of government must adhere to court rulings to uphold the rule of law. He stated: “In a democracy, everyone and every institution must follow court orders. Courts have ruled that an order must be obeyed until properly appealed or set aside. Without obedience to court orders, chaos prevails, not order. For Kenya to achieve its aspirations, this principle must be upheld.”

The Constitution of Kenya stands as the supreme law of the land, and any erosion of judicial authority endangers its democratic structure. Article 232 demands public officials demonstrate accountability and transparency. A refusal to comply with court orders not only violates legal obligations but also the trust placed in these officials by their citizens.

The Law Society of Kenya (LSK) has expressed concern over the rising trend of judicial defiance. LSK President Faith Odhiambo has warned that ignoring court orders could precipitate a constitutional crisis. When the government disregards court orders, it signals that law and order are non-binding, fostering a culture of impunity and weakening democratic institutions.

The defiance of court orders by high-ranking officials threatens not just the rule of law but also risks pushing Kenya toward the brink of becoming a failed state. Immediate action from both the government and civil society is needed to restore faith in the judiciary and reaffirm the country’s commitment to the rule of law.

When top officials choose to ignore court orders, it sets a dangerous precedent for the entire country. What starts with a few high-ranking individuals can quickly spread to other sectors of society. Soon, businesses, institutions, and even individuals may begin to cherry-pick which laws to follow, resulting in widespread disregard for legal authority.

In a failed state, the rule of law collapses. Corruption thrives, justice becomes inaccessible, and those in power act with impunity. Citizens lose faith in their government and judicial system, leading to unrest and, in extreme cases, violence. Basic rights like justice, safety, and freedom of expression are compromised, leaving the vulnerable unprotected and the powerful unchecked.

“Courts are temples of justice and places of refuge for those seeking protection. They must never be desecrated through physical transgressions or blatant disregard of their pronouncements,” said Mr. Maraga.

If Kenya continues down this path, it risks becoming a state where accountability is absent, leaving victims of human rights abuses—like the disappeared protesters—without recourse. Public institutions will crumble, and the judiciary, designed as the final arbiter of justice, will lose its authority, fostering an environment where impunity reigns.

This growing defiance of court orders and blatant disregard for legal authority calls for immediate action. Lawyer Donald Kipkorir captures the gravity of the situation. He urges High Court Judge Lawrence Mugambi to “take one for the Rule of Law” by issuing arrest warrants for Police IG Gilbert Masengeli and imposing a six-month imprisonment without the option of a fine.

“Let justice be done, and let the chips fall where they may!” Kipkorir implored, underscoring the critical need to restore faith in the judiciary before Kenya’s rule of law disintegrates entirely.