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What is contempt of court?
It is defined as any conduct that defies the dignity of the court or interferes with the administration of justice. It is the willful disobedience or disregard of court orders. It is also misconduct in the presence of court that interferes with a judge's ability to administer justice.
Contempt of court can be classified as either civil or criminal contempt. Whether contempt is civil or criminal depends on the substance of the proceedings and character of relief. If a court's purpose for finding contempt is to coerce the contemnor to comply with court orders, then the charge will be one of civil contempt. However, if the court's purpose is to punish the contemnor for disobedience then the charge will be one of criminal contempt.
Punishment for contempt includes imprisonment and fines. Civil contempt penalties are usually conditional. The contemnor can avoid punishment by doing as the court ordered. Punishment for criminal contempt are generally unconditional.
The purpose of recognizing contempt of court is to secure the dignity of the courts. It is also meant to secure the uninterrupted and unimpeded administration of justice. Under Article 10 of the Constitution of Kenya 2010, the national values and principles of governance have been set out. These values bind any individual, public officer and even courts whenever they interpret and implement any law. Among these principles, is one of the rule of law. Under this principle all persons and entities are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated. Due to this the court applies its open inherent power to enforce its own proceedings and ensure that it achieves its primary mandate of administration of justice. In the case of Refrigeration and Kitchen Utensils Ltd v Gulabchand Popatlal Shah and another, Civil Application no. 39 of 1990, the court held that;
"... It is essential for the maintenance of the rule of law and good order that the authority and dignity of our courts is upheld at all times."
In the case of Shimmers Plaza Ltd v National Bank of Kenya 2015 eKLR, the Court of Appeal stated that;
"Court orders must be obeyed. Parties against whom such orders are made cannot be allowed to trash them with impunity. Obedience of court orders is not optional, rather, it is mandatory and a person does not choose whether to obey a court order or not."
Legal provisions for contempt of court
Section 5 of the Judicature Act proveds that the High Court and Court of Appeal shall have the power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of subordinate courts. Under section 28 of the Supreme Court Act, a person who willfully and without lawful excuse disobeys an order of the Supreme Court in the course of the hearing of a proceeding commits am offence. It also provides that the court may sentence a contemnor to imprisonment for a period not exceeding 6 months or to a fine not exceeding one million shillings. Under section 29 of the Environment and Land Court Act, a person who refuses, fails or neglects to obey an order or direction of the court commits an offence and shall be liable to a fine not exceeding 20 million or imprisonment for 2 years. Under section 20 of the Employment and Labour Relations Act, a person who without reasonable cause fails to comply with an order of the court commits an offence and shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding two years or both. Section 63 (c) of the Civil Procedure Act, the court may in the case of disobedience, commit the person guilty to prison and order that his property be attached and sold.
Contempt of court by Inspector General Gilbert Masengeli
On 13th September, Justice Lawrence Mugambi sentenced acting Inspector General of Police Gilbert Masengeli to six months in prison. This came after Mr. Masengeli had disregarded court orders that requested him to appear before it to answer questions about the dissappearence of three individuals. These were Jamil Longton, Aslam Longton and Bob Njagi who were reportedly abducted by individuals believed to be police officers on 19th August amid the Gen Z protests. Before the court found him in contempt, he had been ordered to appear and he defied the court's orders seven times. The actions of Justice Mugambi could end up having a colossal impact in the conduct of public officials towards court orders. One positive impact is that the judgement and sentence allowed the court to demonstrate its power to secure its dignity. As stated earlier, the court has power to enforce its own proceedings. Furthermore, article 10 of the Constitution of Kenya 2010 provides for the principle of the rule of law. This principle means that no one is above the law regardless of the public office one occupies. Previously it has been a constant case of disregard of orders from many a state official. This has come with weak responses from the courts. These weak responses only served to embolden other officials to do the same. This sentence serves as a beacon to every person that court orders are not suggestions to be taken for granted.
All this being said, there is still the issue of enforcement of this sentence. The court ordered that the sentence shall be suspended for seven days to allow the Mr. Masengeli to show up and answer the questions that he had been avoiding to answer. But ponder this, how is such a sentence enforced. It is simple enough for the court to make a judgement and pass such a sentence. Enforcing it seems impractical. How so? Drawing from Mr. Masengeli' s history of disregarding court orders, it seems more probable that he is not going to surrender himself to the Commissioner of Prisons to serve the sentence. This means that a police officer is going to be tasked with the obligation of enforcing the sentence. This is where the impracticality come in. The expectation that a police officer would arrest an Inspector General. His boss. The person he reports to and has great influence over every aspect of his career. This makes the enforcement difficult. This is also one of the reasons why many public officials disregard court orders. Because they do not believe that the court can actually do anything beyond passing judgement. When it comes to the reality of enforcement, the courts cannot touch them. Executive officials have power. Power to do as they wish and in reality, I think they believe no one can stop them. The judiciary certainly has shown that it cannot. The legislature, for the past two years, has been an extension of the executive. The rest of us are left to wonder what next? What is the purpose of chapter six of the Constitution of Kenya 2010? What happened to the national values and principles? Is there such a thing as the rule of law anymore?
Measure to address the shortcomings
Police force for the judiciary
Even before the sentence was passed on 13th September, there was already a lot of people making comments on the case. I happened to hear a few conversations where people were acknowledging how challenging it would be to actually put Mr. Masengeli in a prison uniform. Just as I have stated before. In these conversations there was a suggestion that a police force be established that would be under the command of the Chief Justice and would be dedicated to solely serving the judiciary. Now that is an idea. Have a think for a second, and apply it to the present scenario. A police force that is not under the executive would not be influenced when it came to arresting government officials. These officials are almost all members of the executive and they have been emboldened in the past by the toothlessness of the judiciary. Such a solution would solve the problem of enforcement of sentences.
Citizen's arrest
Section 34 of the Criminal Procedure Code grants private persons the power to arrest anyone who commits a cognizable offence or who they suspect of commiting a felony. This provision falls within the context of a criminal nature. However, using this, citizen's can come to the aid of the judiciary and ensure accountability from the public officials who disregard court orders. Article 1 of the Constitution of Kenya 2010 provides that all sovereign power belongs to the people of Kenya and shall be excercised according to the Constitution. This power may be excercised directly by the people or indirectly through the representatives. If these representatives are unwilling or unable to heed to the requirements of the rule of law the it behooves us as the people to do what needs to be done. Civic education should be able to make people understand how much power they have. Our fellow citizens have died in the protests, others have been injured severely because of fighting for what they believe in. The government counters our attempts by abducting some of us in broad daylight. These are serious issues that deserve serious responses and Mr. Masengeli disregards orders that require him to provide answers to such serious questions. If the sentence cannot be enforced by the police, then it is up to us to find him and present him to the Commissioner of Prisons. If he doesn't heed and we do nothing then we accept this behaviour which encourages other officials and weakens the judiciary.
In conclusion, impunity has become the norm. As an ordinary citizen you are required to comply when courts make orders and when government bodies make decisions. If there is such a thing as equality before the law, then why doesn't the system treat us all equally. A public official should be an individual of supreme character and integrity. At least that is what chapter six of the Constitution requires. The reality is a sick joke. But at some point we also need to stop talking and start doing something about the problem. We can call the most learned individuals and discuss solutions about these issues but they will never be dealt with until we decide to act. We need to educate each other until all of us understand just how much power we wield. Mr. Masengeli is but one individual. How do we alllow him to have that much power. At the end of the day, I believe the solution is taking accountability for our actions. We as Kenyans give our blessings to these people and permit them to mistreat us like they do. We are the ones who queue for hours and vote for these so called representatives. We are the ones who forget the wrongs they have done to us the moment they flash a few notes on our faces when they campaign with money they stole from us. We emboldened them. The solution is to remove them from these positions. Mr. Masengeli was not elected, but this article is not just about him. It is about all of them. The elected and the appointed. We need to vote in people who have our best interests at heart. If we do this, then we will be actually represented. When this happens, characters like Masengeli will never see public office.
