Court orders must be obeyed by all, but too many of them are inimical to justice

The Constitution places a burden on all persons, institutions and authorities in Kenya to uphold and obey the law.

No person, authority or institution is above the law. None can claim that in them is vested any immunity from the coercive effects of the law.

When the courts issue orders or judgments, no person or body can lawfully defy the orders or assert they are above the jurisdiction of the courts.

This is the paradigm shift introduced by the 2010 Constitution, both in letter and in spirit.

A court order is not a suggestion. It is not a request. It is not a plea from the Judiciary, on bended knee, begging the named person or organ to comply.

It is not the whimper of a mouse, but rather the mighty roar of the Lion of Justice demanding obedience in emphatic and unequivocal terms.

When a court issues an order, it does so in exercise of a constitutional authority granted to it by Kenyans themselves.

It is an embodiment of the sovereignty of the Kenyan people and the supremacy of the Constitution.

To defy such an order is to ride roughshod over the Constitution, to reject the sovereign authority of the people, and to invite a steep descent into impunity and anarchy.

Kenyans have looked at the reinvigorated and reformed Judiciary and seen in it an institution they can have confidence in.

They have been emboldened by the expanded Bill of Rights and ease of access to justice, and are now seeking the intervention of the courts with a propensity never seen before.

After decades of being denied fair and expeditious court processes, they are now making up for lost time.

But are Kenyans taking this new found freedom too far?

Why is every little perceived slight or uncomfortable action ending up as a court case? The corridors of justice are heaving with frivolous, vexatious and malicious cases brought about by busybodies or persons carrying out vendettas.

Seemingly no tender, award, appointment or any other significant action by the public or private sectors can pass without it becoming the subject of reflexive litigation processes.

In the same vein, are the courts too willing to issue orders and to intervene in each and every matter? One lawyer even quipped that getting a temporary injunction from the courts staying even the most mundane of actions is as easy as borrowing mobile airtime , or Okoa Jahazi.

Employers are on record as expressing concern about the surprising orders and judgments that have been issued with respect to claims by employees.

Some have even gone so far as considering moving to neighbouring countries as the legal environment in Kenya has become inimical to business.

It appears that the courts are granting interim orders no matter what the claim is. Landlords are unable to increase rents without triggering a year-long fight in the courts.

The government’s hands have been tied by court orders granted against the interests of the public.

Private enterprise is suffering under a mountain of restrictive court edicts. The cartels of corruption and impunity are fighting back against efforts to bring them to book, ironically using court orders to shield themselves from the sword of justice.

The Bench appears to have become too activist; too eager to be seen, heard and felt. Little is being done by the courts to follow through on the constitutional provisions that encourage traditional justice processes and Alternative Dispute Resolution (ADR).

The courts seem to want the profile, presence and social-structuring power of the Executive and the Legislature, without having the direct mandate of the people through elections which authorises such sweeping interventions into the wider social, economic and political aspects of national life.

On our part, we need to rein in our proclivity for litigation. If we do not, Kenya will become a world leader in both marathon running as well as marathon court cases.

Development, business and governance will come to a grinding halt amid spurious litigation that benefits no one besides lawyers. The court is an avenue that should be used responsibly.

Mr Mbiuki, an advocate, works in the office of the Deputy President ([email protected])