Big talk, small act: How Judiciary has turned quest for justice into a mockery

The saga surrounding the abduction of Nairobi-based lawyer Abshir Ahmedsadak Abdi has created a fresh storm, raising questions about the Judiciary's failure to rein in impunity.

Critics claim that the failure to punish police bosses, led by Inspector-General of Police Douglas Kanja, over abductions has created a theatre rather than an effective enforcement mechanism that would send shivers down abductors' spines and guarantee that no one can go missing without an answer.

Judiciary spokesperson Paul Ndemo denied that the third arm of government is the weak link in the fight against impunity.

He said judges have repeatedly put pressure on government officials to obey the law. He cited an instance in which the IG was ordered to pay compensation from his own pocket over his juniors' violation of a minor's rights.

“It has never been done before. There is a case where the IG was ordered to personally pay compensation from his pockets. It is not actually true that the Judiciary is the weak link. It is not the responsibility of the court to enforce the law. It calls out public officers and, where there is contempt, then there will be punishment. We are an impartial arbiter and we look at all facts. Everyone has a responsibility to obey the law,” said Ndemo.

Lawyer Ndegwa Njiru said Kenya had emerged from an era when people were detained without trial.

He further said that when Kenyans ushered in the 2010 Constitution, they expected courts to uphold human rights and the Bill of Rights. According to him, the drafters hoped that, through the courts, the shadow that had dogged the country, with Kenyans going missing at the hands of the Government, would be eliminated.

“You can approach the court even when there is a threat,” said Ndegwa, adding that judges are required to expand the scope of rights, including universal rights provided for under international charters.

According to him, the country should by now have a clear roadmap for addressing torture, enforced disappearances and abductions.

“Even if a law is not part of our laws, the court ought to look at how other countries have dealt with the same issues. Courts are failing Kenyans, as the right to habeas corpus cannot be limited. If you say so and so is missing, they must be produced either dead or alive. Courts have been treating these applications in a cosy and casual way. Courts have encouraged this impunity,” said Ndegwa.

According to him, courts are either in bed with the Executive or are afraid to crack the whip.

"Courts have always refused to punish those we have taken to court. The Executive has the responsibility to secure the rights of every person and account for the life of every person. There is no way a person can go missing and the Government has no answer,” added Ndegwa.

Lawyer Alex Kubo, who is representing Ahmedsadak in court, said the IG's presence in court was not voluntary but a realisation that, if he failed to appear, there was a possibility of the court issuing warrants of arrest.

“First, we need to understand why Mr Kanja is appearing in court. He is not appearing in court willingly. Remember, there was a time when he was found in contempt and the AG had to plead for leniency,” said Kubo.

The lawyer was of the view that Director of Criminal Investigations Mohamed Amin had informed the country that the National Police Service did not have his client.

He insisted that Kanja therefore needed to come out, denounce abductions and call out officers involved.

“There is no police officer who will say in court that we have him; they either release and abandon him. His coming is purely cosmetic. The value is that we know we have him,” the lawyer said, adding that the general response was that investigations were ongoing.

Kubo argued that, in habeas corpus proceedings, the authorities ought to indicate whether they have a person or not. He said this was a dicey situation for the courts but insisted that judges ought to ask hard questions.

The lawyer said Justice Alexander Muteti had today put the IG to task over his failure to act on the complaint by his lawyer.

“They already know what the structure of habeas corpus will be and therefore they will not be moved,” he added.

Lawyer Joshua Malidzo said the Judiciary should move the cheese by requiring that missing persons be produced either alive or dead. He insisted that there was a persistent trend of officers merely appearing in court and offering explanations without facing sanctions.

“The Judiciary must move beyond merely summoning officers and recording denials when people disappear. Habeas corpus must be an effective remedy, not a ritual of court appearances and adjournments. Where individual cases reveal a persistent and systemic pattern of enforced disappearances and institutional failure, the courts must be prepared to deploy structural remedies, including declaring a state of unconstitutional affairs and compelling coordinated action by State institutions.

“The Constitution cannot be satisfied by a Judiciary that merely documents violations while victims remain missing and perpetrators unaccountable. The courts must do more than identify violations. They must fashion remedies that prevent their recurrence,” he said.

The last time Kanja appeared in court, the matter concerned the police barricading roads in Nairobi during the second anniversary of the June 25 protests without issuing the required public advisory.

This brings to five the number of times the police boss has appeared in court over compliance with court orders.

Kubo told this paper that lawyers were joking that Kanja should be given an office close to the corridors of justice because he had become too familiar a guest.

“We made a joke that he needs to be given an office in court because he comes every day. The National Police Service has several arms. You can find that those carrying out abductions are persons who are not within the structure,” said Kubo.

Justice Patricia Nyaundi, in her ruling, said one of the institutions that was a focus of the 2010 constitutional dispensation was the police, and that Kanja was at the centre of safeguarding the rule of law.

“The issue that arose in these proceedings was the extent to which your conduct occasioned a violation of citizens’ rights to movement. We take that very gravely, very seriously. I trust you also do so. What the court seeks to do is to assert its authority,” said Nyaundi.

She observed that Kanja had committed the police to complying with court orders and assured the court that, in future, his juniors would have a clear process for managing protests. However, she said that although it was not the court's intention or wish to punish him, it would not hesitate to do so if his conduct warranted it.

She gave a stern warning that, if the issue recurred, she would not hesitate to consider a custodial sentence.

“It is also not lost on me that you are accompanied by your senior officers in the Police Service. Noting that you have attended court in person, appreciating that you have undertaken and given an assurance that this will not happen again, I shall pardon you. I appreciate that you have emphasised to your officers that court orders must be complied with,” said Justice Nyaundi.

In his explanation, Kanja said he regretted not immediately giving a personal account, adding that he also regretted that the police had not issued a timely advisory before putting up the blockades.

“I wish to assure this Honourable Court that there was no intention on my part to disregard, defy or diminish the authority of the court or its orders,” he said, adding that security was often fluid, requiring precautions whenever there was intelligence about possible harm to people or property.

“In the circumstances giving rise to the present proceedings, the roadblocks and other security-control measures were considered necessary in response to the prevailing security situation and the need to maintain public safety and order.”

“I remain committed, in the discharge of my duties as Inspector-General, to ensuring that officers under my command understand and comply with lawful court orders while continuing to discharge the constitutional mandate of the National Police Service to maintain law and order, preserve peace and protect life and property,” Kanja continued.

His lawyer, Paul Nyamodi, explained that the issue arose from an error of omission and not a deliberate act.

Also in focus are the National Cohesion and Integration Commission (NCIC) and the Independent Electoral and Boundaries Commission (IEBC), which have been accused of treating hate mongers with kid gloves.

The two institutions have issued warnings despite clear evidence of politicians drumming up support for chaos and openly boasting about rigging.