Acting Inspector-General of Police Gilbert Masengeli has snubbed court orders six times over the disappearance of three men, joining the list of government officials defying legal directives, including on handling of protesters and cessation of abductions.
Mr Masengeli has been summoned by a judge to explain the whereabouts of the three men suspected to have been abducted by police officers in Kitengela last month but has not showed up.
Law Society of Kenya (LSK), which moved to court over the disappearance of activist Bob Micheni Njagi and brothers Jamil Longton and Nadim Hamed on August 19, said Mr Masengeli was deliberately defying the court orders and should be punished.
But yesterday, Mr Masengeli defended himself through Chief State Counsel Charles Mutinda saying he was in Mombasa, Garissa, Isiolo and Lamu for security operations and sought for more time to complete the task before heading back to Nairobi. The police also asked to be allowed to send someone in his stead.
High Court Judge Lawrence Mugambi declined to vary his earlier order for Mr Masengeli to appear in person saying the police boss must first purge the contempt before he can be granted audience.
The judge said the issue of contempt of court must be handled carefully and considerable time taken before any action is made.
“The issue in question involves the lives of three Kenyans whose relatives do not know their whereabouts and the responsibility of protecting the lives of Kenyans is vested with the police force. Instead of appearing in court to explain the same, the (acting) Inspector-General of Police has come up with strings of explanations that do not add up,” the judge said.
The failure to appear in court after being summoned, according to the lawyers, was open defiance of court orders.
Defiance of court orders has become synonymous with government officials as they take the directives for granted.
During the youth-led countrywide protests, the High Court issued several orders directing the police to stop using tear gas and water cannons to disperse demonstrators.
Justice Bahati Mwamuye also granted an order following a petition by LSK directing the police to stop the abductions.
The use of tear gas and water cannons, and the abductions, however, continued unabated despite assurances by the police bosses that they will abide by the court orders.
President William Ruto, too, is on record saying that there will be no abductions and extra-judicial killings in his administration.
Dr Ruto repeated the same remarks during his tour of Nyanza one week ago, maintaining that no Kenyan should be subjected to inhuman treatment because of political persuasion.
“Under my administration, I do not want a situation where Kenyans disappear. There were days when more than 20 people were being found in River Yala having been executed. I want to promise you that this will not happen under my watch,” President Ruto said during a town hall session in Kisumu.
Last week, Justice Mugambi said the country is governed by the rule of law and not by the might of men and it doesn’t matter the position one holds, the law must be obeyed.
LSK said unless the court stamps its authority, the Executive will continue disobeying court orders and violate the constitution with impunity.
Courts have always warned that disobeying their directives by those in authority “would be sending wrong signals, not only to the people of Kenya from whom they derive their authority, but also to the whole world that they do not believe in the rule of law”.
“When the decision to obey particular court orders is left to the whims of the parties, public disorder and chaos are likely to reign supreme yet under the Preamble to our Constitution, we do recognise the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law,” Justice George Odunga said in 2018 when ruling against then Interior Cabinet Secretary Fred Matiang’i and IG Joseph Boinett and others.
Justice Odunga said it was clear that Dr Matiang’i, Mr Boinett and others were the ones in charge of security in the country and they were expected to execute or enforce the court orders.
“They have clearly shown that they have no respect for the rule of law and will not comply with the orders of this court,” the judge said.
He added that when a court makes an order, it should not be made in vain.
“It (court) must not only make effective orders but orders whose execution can be carried out swiftly and efficiently and orders which it can supervise. It must not issue orders which from the circumstances of the case, there is high likelihood that they will not be implemented whether rightly or not,” he said.
Yesterday, Justice Mugambi had directed Mr Masengeli to appear in court without fail at 3pm, after which he will be left with no option but to mete out punishment against him for contempt of court.
“This court notes that the IG preferred to attend a workshop instead of obeying this court’s order. I hereby direct that he appears before me by 3pm failure to which this court will proceed to make orders in respect of the contempt of three court orders,” ruled Justice Mugambi.
LSK through lawyer Hosea Manwa submitted that Mr Masengeli had failed to turn up in court five times. The lawyer said the police boss had exhibited the highest level of disrespected to the court by failing to honour the summons.
According to LSK, the three missing persons were active citizens on social media platforms and had been sensitising the youth on a wide range of issues, more so advocating for the rejection of the Finance Bill 2024 and active participation in the protests.
Evidence filed in court showed that Mr Njagi was abducted on August 19 around 10.40pm by masked men on his way home at Kasina area. He was allegedly shoved into a white Subaru.
The two Longton brothers had been abducted earlier on the same day around 2pm while leaving their house in Kitengela. They were allegedly also bundled into a white Subaru.
LSK said it commenced the case by seeking an order of habeas corpus for the production of the three, stating that they were arrested by armed police officers. It added that the State’s response towards the protests was an attempt to forcefully and extra-judicially quell them through illegal arrests, abductions and unwarranted detentions.
The State-sponsored Kenya National Commission on Human Rights stated in a report on July 1 that 39 people died and 361 injured in relation to the protests countrywide. It added that there were 32 cases of enforced or involuntary disappearances and 627 instances of arrests of protesters.
More people had also indicated they were in hiding due to threats on their lives by unknown persons.
In yet another case, a Nairobi court declined to issue a warrant for the arrest of Mr David Machiri Kimani, the man alleged to be behind the Sh1.5 billion Equity Bank heist, saying he cannot order the arrest of a man the police were allegedly holding.
Senior Principal Magistrate Geoffrey Onsarigo closed the file on August 16 after the police failed to produce him in court as directed.
