Abuse of court processes impedes our progress


In his work titled ‘The Spirits of the Laws’, French political sociologist Montesquieu wrote, “There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.”

We are living in interesting times in Kenya where there appears to be a renewed faith in the Judiciary which has over the years been seen as a failure and preserve of those who could afford the steep cost of justice by the depth of their pockets and influence. Today, more people are running to the courts to get one thing or another in the quest for justice.

Kenyans have looked to the reformed Judiciary and seen in it as an institution that they can confidently carry their eggs in without ending up with an egg on the face. Kenyans have also been emboldened by the expanded Bill of Rights and ease of access to justice.

More Kenyans are now seeking the intervention of the courts than ever before after decades of being denied access to fair and expeditious court processes.

However, it appears like some individuals who use the courts to either delay or avoid justice are abusing this legal process. Court orders are being issued left, right and centre with some only resulting in blocking development projects.

However, the courts are sometimes abused when malicious cases are lodged to pursue personal vendettas. All too often, work by the Executive or Legislature have been hampered by prolonged litigation processes often involving frivolous cases, while corruption cartels have used injunctive court orders to shield themselves from prosecution.

Without prejudice to our courts, a glaring case study is the impeachment of Embu Governor Martin Wambora. Even after the Senate concluded its work and endorsed his impeachment, for a second time, the process is awaiting a new court determination.

This is the second time that Wambora was being impeached after successfully using the court to overturn his impeachment. In Nairobi, Governor Evans Kidero has also blocked the nullification of his election by the Appeal Court pending his appeal to the Supreme Court. With the case hanging in the balance, it is only human to assume Kidero will not fully concentrate on his work of serving his constituents in the capital.

Machakos Senator Johnson Muthama recently failed in his bid to block the Director of Public Prosecutions from acting on a CID report seeking him to be charged for the irregular sale of Malili ranch. The legal issue on this piece of land can interfere with Kenya’s development agenda as it is to house Konza TechnoCity – one of the Vision 2030 flagship projects.

And recently, the National Land Commission sued Lands Cabinet Secretary Charity Ngilu for closing the central registry for a few days to block the loopholes that criminals use corruptly to obtain forged title deeds.

Though the NLC later dropped the case, the ongoing process has unearthed more than a million files previously reported to have been lost. Indeed, not even the presidential election and various elective and appointive positions have been spared the inevitable court process. No single county or national government procurement process has escape what at times appear to be frivolous litigation and no doubt, the work of busybody ambulance-chasing lawyers. We have failed to realize the delays and hurdles this places on national development.

As we become more litigious, we must ask the question; Are we using the Judiciary to promote justice or frustrate it? With three years and three months to the next General Elections, we have not concluded all pending petitions. The law requires that all persons and organisations in Kenya should respect court orders. However, this should not be reason to abuse the court process in the name of seeking justice.

(The writer is a political analyst and communications consultant. Twitter @MachelWaikenda)

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