NAIROBI: There is a startling phenomenon prevailing in Kenya which is going unnoticed and unaddressed. Many highly placed or constitutionally mandated public officers with immaculate credentials and proven knowledge of the law blatantly ignore clear laws and their precise provisions.
It is of grave concern that in a population of about 40 million, nobody has raised a voice, pointed a finger or manifested their indignation but many have joined the bandwagon and are disregarding the law.
It is sad to observe that highly placed lawyers, from the Attorney General (AG) to the Chief Justice (CJ), judges and magistrates get entangled in the crossfire of breaches of laws.
Let me highlight some instances where existing laws have been rendered meaningless in instances knowledgeable to those entrusted with enforcing the laws.
The Attorney-General as the custodian of all civil litigation of the Government, the largest entity entering into mammoth commercial transactions, has been privy to not paying its just debts.
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Thousands of commercial entities deliver goods and services but when there is default, sue the Government and obtain judgment but payment is not made for years.
For example, there is a case of some retired teachers not being paid over Sh60 billion for years.
Courts are inundated with thousands of cases that have not been settled because execution against the Government is not permitted in law.
The Attorney General is the Chairman of yet another Committee which seems to be failing in its duties. The Advisory Committee on the Power of Mercy is established under Article 133 (2) of the Constitution and the Power of Mercy Act.
Kenya has seen a number of blanket commutations of death sentences to life imprisonment, acts done by the President in exercise of his legal mandate. This notwithstanding the set procedures to be followed under the Act in exercise of the Power of Mercy.
It may well be argued that failure to execute convicts sentenced to death is also an infraction of the law.
The Penal Code provides mandatory death for capital offences like robbery with violence, murder and treason. To sentence convicts to death and thereafter hold them indefinitely in death row amounts to blatant disregard of the law.
According to The Advocates (Senior Counsel Conferment and Privileges) Rules 2011 on conferment of the “Roll of Senior Counsel”, rule five requires the Senior Counsel Committee to give recommendations to the President every March of each year.
Over the past two years there has been no effort made by the committee and other responsible officers to comply with the law.
On matter of delayed judgments in civil cases, Order 21, rule one of the Civil Procedure Rules, 2010 states thus: “In suits where a hearing is necessary, the court, after the case has been heard, shall pronounce judgment in open court, either at once or within sixty days from the conclusion of the trial notice of which shall be given to the parties or their advocates.
Provided that where judgment is not given within 60 days the judge shall record reasons thereof copy of which shall be forwarded to the Chief Justice and shall immediately fix a date for judgment.”
The CJ and judges have not given effect to the law and delayed decisions are causing untold misery to litigants.
Value Added Tax Act, 2013 provides for taxpayers to claim refunds for different reasons such as error or bad debt. Unfortunately, this has not been the case with Kenya Revenue Authority. On its own admission made last week, it owes more that Sh30 billion in unpaid VAT refunds, which is a complete disregard of section 30 of VAT Act.
Another example of flouting of laws is under the Anti-Corruption laws which state that corruption cases must 'as far as practicable' be heard on day-to-day basis and not a single corruption case has been heard according to the law.
Non-enforcement of the laws by the police under the Traffic Act perhaps illustrates the irony of selective and crude disregard of the law.
For example, the Inspector General, it would appear has been unable to see hundreds of trucks carrying construction labourers packed like sardines in a can every day on our roads, or the thousands of cyclists who ride without lights or reflectors.
There are also cases of motorists and drivers of police vehicles disregarding traffic lights.
In contrast, interestingly is the application of outdated laws.
I refer to the 50Kph speed limits presently being enforced. By restricting modern cars capable of reaching speeds of up to 220Kph, are law enforcing agencies not encouraging citizens to break the law?
Respect for the law by the Executive, the Judiciary and citizens is an important component of good governance as is required under Article 10 of the Constitution.
Those officers and institutions that do not religiously adhere to law should be made to answer for their acts or omissions but the pertinent question is who can, will and must force them to obey the law.
