Why we should respect courts even when one is in high office

Former acting Inspector General of Police Gilbert Masengeli’s travails this week made me recall some regrettable moments of Kenya’s history in relation to police chiefs’ contempt of court.

Unfortunately, people who lived amid those times have refused to record their memoirs so that Kenyans can know and appreciate why we cannot dare revert to that dark Kenya. On April 6th, 1987, police arrested one Stephen Mbaraka Karanja, for allegedly being involved in some criminal act. His wife, Naomi Waithera instructed Obadiah Ngwiri, a diligent criminal lawyer famous for handling pro-bono cases.

Ngwiri wrote to CID Director Noah Arap Too asking about the whereabouts of Mr Karanja. Amazingly, Mr Too replied, dismissing the request and penning therein that he would NOT admit liability (the NO written in capital letters).

Adding colour to the letter, Too cautioned Ngwiri that “if you knew what type of person your client is , you would not pester me with these silly letters.” Undeterred Ngwiri filed a habeas corpus application which, fortunately for the Karanjas was allocated to Justice Derek Schofield, a British lawyer serving as a foreign judge in Kenya.

In those days, judges were so aligned and scared of the state that the matter would have been dismissed by any other judge. Justice Schofield however was a believer in the primacy of the law. He ordered Too to produce Karanja or face contempt proceedings. Too filed an affidavit confirming that Karanja had been arrested by the police but had been shot when trying to escape.

He averred further that Karanja had been buried in an Eldoret cemetery two months earlier. The court ordered that the body be exhumed, and a report be produced in court. Ngwiri hired several grave diggers who after digging not less than 24 graves could not find the body, a matter reported to the court. The court ordered the police to carry out further exhumation and when they also couldn’t trace the body, the judge proceeded to list the contempt application for hearing, intending to do the unthinkable, commit the CID boss to civil jail for contempt. Before Schofield could hear the application, then Chief Justice Cecil Miller reassigned the matter.

Anecdotal evidence says the Chief Justice walked to Justice Schofield’s court and physically took away the file! Justice Schofield promptly resigned and fled the country. Attempts by Karanja’s family to withdraw the application were opposed by then DPP, and later Chief Justice, Bernard Chunga, who insisted the matter proceeds.

The matter was then reassigned to the late Justice Akilano Akiwumi who promptly dismissed the application, bringing an end to one of many sordid sagas of Kenya’s experience with impunity.

I tell this story for its uncanny resemblance to Mr Masengeli’s troubles which indicates that we may not have moved too far, as far as attitudes by the police to courts are concerned. But more importantly, I tell it to emphasize that we cannot under any circumstances permit Kenya to return to the place where such impunity reigned. When a court could not dare hold public officials to account.

We live in days when judges can challenge the highest offices in the land and turn up to work the next day. We must jealously guard these freedoms. It is unfortunate that this Masengeli saga went on for this long. One can understand the police chief’s initial complaint that he did not personally need to appear, his operational officers had the requisite information on the issues under inquiry. 

One can even argue there was some power flexing by the court in insisting that the police chief personally appear. However, once the court required his personal presence, Masengeli’s options ended. An officer who is responsible for ensuring adherence to the law cannot be associated with what appears to be contemptuous disregard for the law.
That he eventually had to climb down from the top offices in Vigilance House to walk to the courts is a lesson to public servants. Obedience of court orders is non-negotiable. It is good for all of us.

Unfortunately many in high office who flex against the courts in their days of power find out this truth soon enough but only after they’ve fallen from grace.

-The writer is an advocate