Recently, members of LSK have issued robust critique of various Court decisions, as part of our commitment to accountability of the Judiciary.
Decisions and administrative actions at various levels of the Superior Courts - High Court and coordinate courts, Court of Appeal and Supreme Court - have come under heightened scrutiny.
This scrutiny and calls for accountability are very welcome, always guided by the principle that lawyers are officers of the Court and must engage the court with courtesy and decorum even when aggrieved by court processes and outcomes.
Critique of court actions & decisions should lead to greater responsiveness and responsibility by the Judiciary, since these are aspects of accountability which is a key quality of a transformed Judiciary under the 2010 Constitution of Kenya.
The partner attribute to accountability of the Judiciary is judicial independence. Independence requires, as a natural feature, high standards of judicial integrity and commitment to participate without undue fetters in JSC disciplinary processes.
But integrity also requires each judge to uphold the judicial oath, both structurally and in daily conduct, to act "without fear, favour, bias, affection, ill will, prejudice or political/religious/other influence."
The right harmony between judicial independence & accountability is the promise of the Katiba. As lawyers, our role as key stakeholders of the legal justice system will always include our responsibility to recognise judicial authority.
This means that judges may sometimes make mistakes, that court decisions may be subject to applications for stay, review or setting aside or to appeals, and that court decisions may be subjected to strong scrutiny and robust critique based on procedural or substantive grounds.
But this is never an excuse to disobey or disregard a valid and subsisting court order, neither by Government or any other party.
For the Ministry of Health, it means complying with court orders regarding the Ebola Containment Facility in Lodwar.
For NSSF, FKE and employers, it means complying with the Employment Court decision that declared the NSSF Act 2013 unconstitutional, and whose effect the Court of Appeal has recently clarified by declining a pending stay application.
For the Kenya Police, it means complying with the court order forbidding Police from masking their face & identity when engaged in policing actions.
And allowing Kenyans to exercise their civil & political rights, including freedom of peaceful assembly, protest, picketing & petitioning without disruption by Police, gangs or goons.
When any agency purports to ignore court orders, that is the highest form of impunity and violation of the rule of law. That is an act or omission that strikes at the heart of the Katiba, and which calls upon every citizen & organisation to resist.
The Law Society of Kenya commits to lead that resistance. And to target especially any state or public officer, any organ or agency of Government and any institution which decides to act with impunity, because of careless or reckless disregard for the consequences provided by law.
We pledge to pursue both individual and collective responsibility for notorious disregard for court orders, including actions for removal from office of any sponsor, leader or senior person exercising direct, vicarious or command responsibility for such impunity.
We'll go as high as possible up the command chain. Too often, impunity manifested by goons, by irregular groups and by street-level security officers is driven by the culture of orders from above and a belief that the law cannot touch certain highly-placed persons or officers.
But the Katiba will only thrive and reach its true transformative potential if every person and agency bends before the Katiba. And so, we must ensure that the stiff necks of impunity are stiff no more: let them bend or be broken.
Notice given. It is so ordered.
Charles Kanjama is the President, Law Society of Kenya
