If you have obtained a money judgment against someone, you can ordinarily recover the debt by auctioning their assets or attaching their bank accounts. But the government is shielded from these enforcement mechanisms by Section 21 of the Government Proceedings Act.
Last month, High Court Judge (Prof) Nixon Sifuna held that legal provision discriminatory and, therefore, offending the Constitution. If ordinary people’s assets can be auctioned, why not the government’s, he reasoned.
Many within legal circles understood ruling to mean that government property could now be sold to settle debts. Not everyone agrees though. Justice Oguttu Mboya, of the Environment and Land Court, for example, ruled recently that Justice Sifuna had not made an express declaration of unconstitutionality against Section 21, thus the law remained in force.
This latest decision is welcome for two reasons. One, the CoA was addressing the issue for the first time; hence, its verdict will provide much-needed clarity and guidance to the lower courts. Two, the decision is grounded on sound legal philosophy.
Granted, Section 21 favours the government. But preferential treatment can only be labelled ‘discriminatory’ if unjustified. The government is no ordinary litigant. Government expenditure—including the settlement of its debts—requires parliamentary approval and coordination with the Treasury and the Controller of Budget, among other entities. And for good reason: Government property is public property.
The process is inevitably lengthy due to the high number of cases filed against the government. Relatedly, government entities do not have their own monies; hence, their debts are paid from the Consolidated Fund.
If state assets were sold every time the government delayed to settle a debt, Kenyans might by now not have Uhuru Park or Parliament Buildings.
If payment is intentionally frustrated by officials, one can obtain a court order compelling them to comply. If they don’t, the litigant can sue them for contempt of court—and they can be jailed or fined if found culpable.
