Explainer: What happens when a State officer ignores court summons?
Explainers
By
Esther Nyambura
| Sep 10, 2024
The case of Acting Inspector General Gilbert Masengeli, who has defied six court orders and now faces sentencing, highlights a troubling pattern of Kenyan State officials flouting the legal framework they are sworn to uphold.
His actions not only raise questions about his credibility but also challenge the principle of equal accountability under the law.
Masengeli's case is not unique.
In June last year, former Public Service Cabinet Secretary Moses Kuria also ignored a court order barring him from using defamatory language against media outlets. In defiance of the High Court's directive, Kuria repeated the inflammatory remarks during a public event in Murang'a.
These incidents send a dangerous message; those in power appear to operate above the law.
When a State officer, especially one tasked with upholding the law, disregards court orders, it represents a significant breach of public trust and undermines the judiciary's authority.
This situation has raised critical questions about the implications of contempt for court orders, especially by government officials.
Lawyer Kamotho Waiganjo explains that the law does not differentiate between citizens regarding compliance with court rulings.
Undermining Judicial Process
Disobeying a court order constitutes contempt and undermines the judicial process. When State or public officials flout court directives, it weakens the law, a cornerstone of societal order.
Waiganjo points to a flaw in enforcing court orders; the judiciary lacks an independent enforcement mechanism and must rely on security services, which may themselves be in contempt. This dynamic often results in reluctance to act on contempt orders, even though the law requires a jail sentence.
"Civil servants exploit the fact that courts have no independent enforcement arm and must rely on security services, which often leads to a lack of enforcement," Waiganjo notes.
Lawyer Nzau Musau shares these concerns, observing that many in the Executive and other branches of government are aware of the judiciary's limitations in enforcing its rulings. As a result, they often disregard court orders, confident that consequences will be minimal.
However, Musau stresses that courts still retain the authority to punish those who disobey.
"As Justice Mativo observed, a court without contempt powers is not a court. Courts must continue to hold individuals accountable for contempt to preserve their relevance and the rule of law," says Musau.
Section 5 of the Judicature Act grants both the High Court and Court of Appeal the power to punish for contempt. A conviction for contempt is treated like a criminal conviction and is subject to appeal.
Violation of the Constitution
In Masengeli's case, while the court may not declare him unfit for office, it could find that he has violated the Constitution, explains former Law Society of Kenya President Nelson Havi.
This could initiate a process to remove him from his position as a senior police officer, effectively barring him from public office.
According to Havi, there is no ambiguity in Masengeli's case. He could face up to six months in jail for each offense, resulting in a potential 36-month sentence, or he could be fined, with a maximum penalty of Sh200,000.
Masengeli's defiance of court orders is linked to the disappearance of three men-Bob Njagi (47), Aslam Longton (42), and Jamil Longton (36), who were abducted on August 19 by individuals claiming to be police officers.
Despite multiple court summonses, the Acting Police IG has failed to appear in court or provide any information on the men's whereabouts, leaving their families in distress.
Following Judge Mugambi's ruling that "Masengeli is guilty of contempt of court," the Acting Inspector General will learn his fate on Friday, September 13.