Kenyan Government must obey the law and pay teachers

The standoff between teachers and the Government over a pay rise awarded by our courts has triggered debate on whether we are a society governed by rule of law in its truest sense or just a Hobbesian jungle where everything goes.

In principle and theory, Kenya is a state governed by the rule of law. The de facto position is, however, that of a state where might is right and the inconvenience of obeying the law is regularly forfeited by the government.

At the core of the concept of the rule of law is respect for court orders. Back in March 2013, President Uhuru said the Supreme Court judgment upholding his election as our fourth President was a victory for all Kenyans. We were all urged to accept the verdict and move on. Opposition chief Raila Odinga expressed his disagreement with the court’s decision but noted that Kenya was more important and urged Uhuru to reunite all Kenyans and uphold constitutionalism.

The concept of the rule of law has been tested to extremes ever since. The lack of respect for the law or the feeling by some of being above it is the reason the high and mighty would move to grab a school playground or forest land or a road reserve. It is why a Member of Parliament can be executed smack in the middle of town because those who had issues with him regarded due process as a waste of time.

The Court of Appeal in the case of Shimmers Plaza Limited Vs National Bank of Kenya (Civil Appeal 33 of 2012) took judicial notice and deprecated “in the strongest terms possible the worrying trend in this country where court orders are treated with tremendous contempt by persons and institutions which think, wrongly of course, that they are above the law”

It is the same Court of Appeal which directed the Government to pay teachers and its position upheld by the Supreme Court. Granted, the standing of the Supreme Court hasn’t improved much in the minds of many since its infamous ruling on the presidential election petition, and I’m not about to pour platitudes on the court or its jurisprudence, but our opinions about the court or its individual members notwithstanding we all have, as Romer L J said in Hadkinson vs Hadkinson, an unqualified and uncompromising obligation to respect its orders even when we believe the order to be irregular or void.

That the government has chosen to ignore the order on teachers pay is one more ominous step closer to a total collapse of the rule of law whereupon the only alternative would be anarchy.

The flimsy excuse that ‘there is no money’ demonstrates further just how much contempt the Jubilee government has for our collective intelligence. This has been a long running dispute and a prudent government ought to have set aside funds for such an eventuality, but then again the Jubilee Government is not known for financial prudence.

To put matters in perspective, the estimated budget for the 2015/16 financial year is Sh2.246 trillion. This claim of there being no money becomes extremely ridiculous in light of the Auditor General’s report that shows over Sh65 billion could not be accounted for.

It is even more ridiculous when you remember the NYS was allocated Sh25 billion essentially to unblock drainages and State House received Sh6 billion for God knows what. If ‘I have no money’ was a valid excuse for failing to obey court orders, very few would be obeyed.

The consequences of blatant disobedience of court orders must apply to the government as it does to the ordinary mwananchi. If a few top officials are convicted of contempt and hauled to jail, the money will quickly be found.

The writer is an advocate of the High Court of Kenya