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DEVOLUTION. PRESENTATION MADE DURING THE CSO FORUM ON DEVOLUTION ON THE 26 TH MARCH 2014 AT THE SAFARIPARK HOTEL by RENEE OMONDI, VICE CHAIR LSK. THE ROLE OF THE COURTS AND THE LAWYERS IN DEVOLUTION.

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Devolution

DEVOLUTION

PRESENTATION MADE DURING THE CSO FORUM ON DEVOLUTION ON THE 26TH MARCH 2014 AT THE SAFARIPARK HOTEL by RENEE OMONDI, VICE CHAIR LSK.


The role of the courts and the lawyers in devolution
THE ROLE OF THE COURTS AND THE LAWYERS IN DEVOLUTION

“The lawyers have the task of moving the High Court to patrol the boarders of the constitution”


The big question for lawyers
THE BIG QUESTION FOR LAWYERS

  • The question that the LSK must suffer in this debate is whether we are breeding constitutionalism for posterity or impunity for adversity

  • Stemming from this logic is whether we are procreating devolution for posterity or devolution for impunity

  • Do we want to cascade the so called turf wars to the devolve governments


The mandate
THE MANDATE

  • Lawyers have a constitutional obligation to protect devolution through legal counsel and through court action

  • Section 3 of Cap 18 Laws of Kenya gives the Society the mandate to advise the government and the general public on matters of legislation and administration of justice

  • This includes advise on laws that impact devolution


The lawyers role
THE LAWYERS ROLE

  • The lawyers have the task to move the High Court through the terrains and the boarders of the constitution

  • They move the court to issue orders, direction and judgment on constitutional matters

  • They also bear the duty of ensuring that the court orders are respected as a cardinal tenet of the rule of law


The lawyer and the high court
THE LAWYER AND THE HIGH COURT

  • Retrospectively, the High Court has the constitutional obligation to uphold the rule of law and constitutionalism

  • It may pronounce itself on any constitutional matter that has been removed before it by an aggrieved party through their lawyers

  • Its pronouncements are not ultimate as they may be stayed or reviewed


Court orders and the rol
COURT ORDERS AND THE ROL

  • All parties in dispute before the court have a chance to be heard

  • Parties drawn to matters before the court have an obligation to respect orders, rulings and they have right of appeal to vary the orders

  • Disregarding the obligation to comply or appeal court orders is a form of impunity and a breach of the constitution and rule of law (ROL)


Consequences of disobeying court orders
CONSEQUENCES OF DISOBEYING COURT ORDERS

  • Disregarding court orders is an overt act of defying the rule of law and undermines administration of justice

  • When court orders are defied by the other arms of government it is like shooting oneself on the foot as the entire facet of state formation is compromised

  • The obvious consequences are heightened increase in insolence and insecurity by both state actors and non state actors


Court oders and devolution
COURT ODERS AND DEVOLUTION

  • The illogic of disobidience of court orders undermines devolution as its core

  • This is because you may not be seen as undermining a section of the constitution and upholding another

  • In fact one of the tenets of the rule of law is obeying court orders whether they favor you or not, failure to obey orders of the court may lead to anarchy


Court oders and devolution1
COURT ODERS AND DEVOLUTION

  • Disrespecting the authority of the court and by the parliament is therefore a landmine to constitutionalism

  • When the court pronounced itself on Wambura’s case the senate ought to have appealed to vary those orders instead of ignoring them

  • That act by the senate was an affront to the rule of law and constitutionalism


Court oders and devolution2
COURT ODERS AND DEVOLUTION

  • The action by parliament came hot on heels just after the executive had ignored court orders to reformulate the provincial administration to accord with the devolved system of government

  • Matters were even made worse by pronouncement attributed to the speaker that he will not comply with idiotic rulings and worse still stated that in pecking order the judiciary comes third after the two arms of the government


Court oders and devolution3
COURT ODERS AND DEVOLUTION

  • It is the LSK position that the independence of the judiciary can never be compromised and that court decisions must be obeyed unreservedly .

  • Disobeying court orders by the other arms of the government also undermines the principle of separation of power

  • The notion that some arms are first in the pecking order is a recipe to state of nature and anarchy (Uganda suffered this repeatedly during Idi Amins and Obote II rule )


Court oders and devolution4
COURT ODERS AND DEVOLUTION

  • You may want to look at the state of affairs that occasioned the twin cases of Grace Ibingira and Ex-parte Matovus – EACA

  • The senators when they were had pressed on issues with national assembly sought consolation in the supreme court…three months down the line they defy the same court

  • This ping pong game must stop… court is not a toy and its decisions must be respected.


Parting shots
PARTING SHOTS

  • The courts and the lawyers have a vanguard role to play in protecting devolution and constitutionalism.

  • Respecting decisions from the court as conversed by lawyers is an act of consolidating devolution, constitutionalism and the rule of law.

  • Devolution should be for posterity not adversity and impunity

  • As a form of constitutional governance devolution must be respected by all and sundry.


End slide
END SLIDE

THANK YOU


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