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Pain of increasing non-compliance with court orders

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Disobedience of court orders is on the rise in Kenya, signalling a trend that puts the rule of the law and the dignity of courts under threat.

Worse, senior public officials are top on the list of people disregarding court orders at will.

Late last year, Chief Justice David Maraga issued a statement and warned that disobeying a court order was not only a violation of the Constitution but also a dereliction of public duty.

“Courts are temples of justice and the places of refuge for those seeking protection. They must never be despoiled either through acts of physical transgressions or blatant disregard of their pronouncements,” Mr Maraga said.

The CJ noted that there have been worrying developments in the administration of justice that threaten the rule of law.

“The recent disregard of court orders is an act that is not only inimical to the rule of law but is also completely at odds with Kenya’s constitutional outlook,” he added.

But despite the warnings, these acts are rampant and now the Law Society of Kenya president-elect Nelson Havi said he will be seeking an appointment with the Attorney General Paul Kihara to discuss the issue.

In the meeting, he said, he would first seek to establish from the AG why government officials are unable to comply with the court orders or “at least have him explain why the orders are disregarded”.

Later, Mr Havi said, the LSK will compile all cases where government officials have failed to comply with court orders and file a composite case, seeking a declaration that the concerned officials are unfit to hold public office.

“We will further escalate it and, where possible, file a petition to Parliament of county assemblies, and ask the concerned officials to be impeached,” he said.

Among the cases where government officials have disregarded court orders is that involving controversial lawyer Miguna Miguna whose return to the country has been frustrated on two occasions.

During the latest attempt in January, Justice John Mativo noted that several orders directing the government to facilitate Dr Miguna’s return have been disobeyed.

But the government through a State counsel maintained that Dr Miguna’s passport expired in March last year and the Canada-based lawyer has not applied to renew it.

Through State counsel Christopher Marwa, the government defended itself, saying Dr Miguna had the option of using his Canadian passport to gain entry into the country or seek the renewal of his passport from any Kenyan embassy.

Dr Miguna’s lawyer John Khaminwa protested that the court orders are not there for cosmetic purposes and if the government was unhappy with them, the least it could do, was to appeal against the order but not to disregard them.

According to the government, Dr Miguna’s passport expired on March 22, 2019 and the lawyer could renew it online through the e-Citizen platform.

In December 2018, Justice Chacha Mwita directed the government to return Dr Miguna’s passport but it later emerged that it had been perforated. The judge also awarded the lawyer Sh7.2 million as compensation for violation of his rights and for destruction caused at his home in Runda when police officers raided it.

Dr Miguna was deported in February 2018, days after his arrest, for the role he played in the mock swearing-in of Orange Democratic Movement (ODM) leader Raila Odinga on January 30, 2018.

He unsuccessfully tried to return to Kenya on March 26, 2018, forcing his lawyers to go to court, while another attempt on January 7, 2020 was also thwarted. He has since sued two airlines which refused to allow him to board on his way back home.

And a former Air Force Commander Peter Kariuki wants the Treasury Cabinet Secretary, the Defence Principal Secretary, the Chief of Staff of the Defence Forces and the Air Force Commander compelled to restore his rank, honour and decorations.

The former military man obtained a court order six years ago but the officials are yet to comply with the directive.

Besides the honours and benefits, Mr Kariuki is seeking compensation of Sh71 million, which the Court of Appeal ordered the government to pay him in 2014, after convincing a bench of three judges that he was subjected to glaring violations, when he was court-martialled in 1983.

Justices Patrick Kiage, Kathurima M’Inoti and Jamila Mohammed had quashed his conviction and ordered the government to pay him Sh15 million for violation of his rights. “Those violations cannot be appropriately remedied by an award of damages alone. A conviction founded on such palpable and glaring violation of the right to a fair trial ought not to be allowed to stand,” the judges stated.

But six years since he obtained the judgment, Mr Kariuki is yet to be paid or his ranks and honours restored.

“That all that the fourth and fifth respondents (CGS and Air Force Commander respectively) are required to do is to organise the necessary parade in accordance with their military practice or norm and restore my rank, honour and decoration as ordered by the court,” he said in a sworn statement.

During the August 1, 1982 attempted coup, Mr Kariuki was the commander of the Kenya Air Force. At the time of the mutiny, Mr Kariuki said he was at his farm in Timau, a few Kilometres from Nanyuki.

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But as soon as the mutiny had been quelled, he was arrested and confined for some time at Kamiti Maximum Security Prison. He was later transferred to Naivasha Maximum Security Prison and held in solitary confinement for 147 days.

And on January 10, 1983, he appeared before a court martial and was charged with the offences of failing to prevent a mutiny and failing to suppress it. The court martial was presided over by Major General Lenges, with F. E. Aragon, then a Senior Resident magistrate, as the Judge Advocate.

About a week later, he was convicted of the two offences and sentenced to four years in prison; the sentences were to run concurrently. In addition, he was dismissed from the force and stripped of his rank, benefits, medals and decorations.

He served his full sentence after the Commissioner of Prisons declared that he would not be considered for any remission of his sentence.

Some 23 years later, he filed a petition before the High Court alleging violation of his constitutional rights and freedoms, regarding his arrest and trial before the court martial.

Justice Daniel Musinga agreed with him and ordered that he be paid Sh7 million for violation of his rights.

The judge, however, failed to order the restoration of his honours, forcing him to file an appeal.

The three Appellate court judges said that the court martial came across as a body hell bent on making arbitrary decisions, which it could not justify.

First, his application to summon General Jackson Mulinge, the then Chief of General Staff, as a defence witness, was rejected.

The former Air Force Commander said it was not true that he failed to suppress the mutiny since, he said, upon learning of the alleged intended coup attempt, he passed the information two weeks before to General Mulinge on July 14, 1982.

General Mulinge then decided that the information be passed on to the Military Intelligence as well as the Special Branch for full investigations under his own co-ordination. He considered the General to be a very crucial witness to his defence.

But since he obtained the judgment, Mr Kariuki, through senior counsel Paul Muite, has written countless letters to the military and the ministries without success, forcing him to head back to court.

“In the circumstances, I have no other mode of enforcing the judgment herein other than by way of mandamus,” he said.

Jeremiah Watah Barasa, a National Youth Service (NYS) official is fighting to get paid after he fell into a ditch and injured himself while on duty 10 years ago.

And despite getting court orders directing the director general of the NYS and the Devolution Principal Secretary to pay him Sh3.6 million, Mr Barasa is yet to be paid.

While the amount keep rising, Mr Barasa is a worried man because he cannot get proper treatment, after he was referred to Kenyatta National Hospital.

He was later demoted as a section officer II to a private. Evidence presented in court showed that he was on duty on February 27, 2010 in Garissa, Mbalambala Farm Unit. He said he was chasing away some wild animals when he fell into a ditch and injured his left hip.

His employer dismissed his claims, saying he was transferred to KNH where a total hip replacement was successfully done and the NYS paid his bills.

Mr Barasa made an application for the NYS director general Matilda Sakwa to be summoned to court and explain why the agency was yet to comply with the court order, three years on.

In a different case, High Court judge Francis Gikonyo said all that was required of government officials was to appear before court and explain the reason for the delay or propose an action plan. “In these cases, I see continuous disobedience of lawful court orders by government officials without any justifiable cause or explanation.”

In yet another ruling, Justice George Odunga said: “In my considered view, court orders are not made in vain and are meant to be complied with. If for any reason a party has difficulty in complying with court orders, the honourable thing to do is to come back to court and explain the difficulties.”

Apart from the Executive, Judiciary officials are also disobeying the orders.

Former Kiambu senior principal magistrate Bryan Khaemba was forced to a file a contempt of court case and sought to have Justice Maraga cited for contempt after failing to reinstate him. This was after the former magistrate won a case quashing his suspension.

In a judgment last year, the Employment and Labour Relations Court said the Judicial Service Commission’s decision to suspend Mr Khaemba was unlawful.

The court directed the JSC to immediately reinstate him and also release his withheld pay.

But the Judiciary failed to comply with the directive, forcing him to head back to court.

The JSC later appealed against the decision ordering his reinstatement.

He said the CJ has disobeyed the same orders he is urging government officials to respect.

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KETRB seeks to enforce professionalism through standardisation : The Standard

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Over 1,200 engineering technologists and technicians have been registered since the Kenya Engineering Technology Registration Board (KETRB) was formed.  To make this process successful, the Board has called upon all engineering technologists, technicians and artisans to register with the organisation for licensing and recognition as professionals in the various categories they are qualified in.
“We are the only organisation mandated by the Government and the law to register and license engineering technologists and technicians. We have partnered with various TVET institutions offering engineering technology programmes courses to ensure that their students get registered,” explained Professor George Thumbi, the board’s chairperson.
KETRB the acronym for the ‘Kenya Engineering Technology Registration Board’ is established under the Engineering Technology Act No 23 of 2016 Part II Section 3. The board’s core mandates are to set standards for engineering technologists and technicians, and, register and issue licenses to qualified persons as per the provision of the Act.
The Board is also mandated to verify that engineering technology professional services and works are undertaken by persons registered under the Act as well as ensure that standards and professional ethics for health and safety of the public are observed.
For instance Professor Thumbi explains that Standardisation and Certification of Jua kali artisans will go a long way in professionalising the engineering and construction sector in the country. 
“The quest to recognise and certify artisans, who have learned on the job within the Jua kali sector is a welcome move. This means we can be able to track down professional misconduct and quacks within the sector and weed them out, certified artisans will also be able to earn well from their jobs,” affirms Thumbi.

For More of This and Other Stories, Grab Your Copy of the Standard Newspaper.  

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In seeking to clarify KETRB’s mandate and that of the Engineers Board of Kenya (EBK), Thumbi says that “the mandate of each is different, just to clarify, an engineer should be the designer, while the technologist should be the implementer who interprets the engineer’s designs. KETRB mandate is more on engineering technologists, technicians and artisans”
As Competence Based Education and Training (CBET) implementation across TVET institutions takes shape, Thumbi says there is need to ensure it is well supported with the necessary funding and other requirements.
“While CBET is the best thing for this sector, it’s very expensive, its implementation should be taken cautiously and experimentally before a full rollout is effected.”  
KETRB has also partnered with like-minded organisations and those with parallel mandates including NITA, KATTI, TVETA, TVET CDACC, KNQA among others to ensure success for the country’s skill acquisition agenda and drive the big 4 agenda.
He says KETRB, in the execution of its mandate within welcomes new members to register with the body and help drive its agenda.
Over the years, the country has been faced with disasters involving collapsing of building, but this could be have been avoided if the right professionals were allowed to execute such jobs.
According to KETRB’s Board secretary Alice Mutai, “with the proper certification of all technologists and technicians registered and certified by the board, the country could easily rid itself of quacks who are sometimes hired in constructions sites to cut costs, and standardisation for payment through classifications of work demands and skill demands can be achieved,” Alice says.
However, the board is faced with biting challenges that are hindering the implementation of its mandate, chief among them enough funding.
“We are under government but we have not yet been able to get funds to run the affairs and mandates of the board. We are running by what the members contribute, this makes dispensing our mandates like taking disciplinary measures under the provisions of The Act, Issue licenses to qualified persons under the provisions of the Act, Enter and Inspect sites where Construction, Installation, Erection, Alteration, Renovation, Maintenance, Processing or Manufacturing works among others difficult,” Thumbi said.
Besides, the board is still making baby steps towards recognition among qualified members who have not yet registered.
“Kenya was left behind by other countries in subscribing to international technologists accords, The Washington accord is purely for the engineers, the Sydney is for technologists while the Dublin accord is for the technicians, as a consequence, some employees don’t differentiate the various cadres. By registering with KETRB, the roles are cut out per our licensing,” explains Alice.


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Trump signs USD2 trillion recovery plan as US virus cases skyrocket : The Standard

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US President Donald Trump signed a $2 trillion rescue package into law to provide economic relief amid the coronavirus outbreak. [AFP / JIM WATSON]

President Donald Trump signed into law Friday the $2 trillion rescue plan to salvage a US economy crippled by the novel coronavirus, on a day the nation recorded more than 100,000 confirmed cases of virus infections.

Hours earlier, the House of Representatives passed the package, with lawmakers uniting to greenlight the mega-plan as the world-topping number of US COVID-19 infections surged past 104,000, including 1,693 deaths.
Trump’s signature brings an end to the dramatic, weeklong legislative saga on Capitol Hill, and triggers the distribution of millions of relief checks of up to $3,400 for an average American family of four.
“I want to thank Democrats and Republicans for coming together and putting America first,” Trump said.

SEE ALSO :Impeachment vote set for Wednesday

“This will deliver urgently needed relief to our nation’s families, workers and businesses. That’s what this is all about.”
The president also took the long-called-for step of invoking the Defense Production Act to compel auto giant General Motors to quickly honor its commitment to making ventilators, machines crucial to keeping critically ill coronavirus patients alive but which are in short supply in hospitals.
“GM was wasting time,” the president alleged.

For More of This and Other Stories, Grab Your Copy of the Standard Newspaper.  

The need is acute in New York state, the US hotbed of the epidemic where 44,635 infections have been confirmed.
The death toll there increased Friday to 519 — up from 385 the previous day — but Governor Andrew Cuomo expressed optimism that the increase in the hospitalization rate has slowed.

SEE ALSO :Trump says Zuckerberg told him he’s Facebook’s ‘number one’

Cuomo announced the creation of temporary hospitals in large facilities in each borough of New York City — including at a horse racing track in Queens — in the model of an already-constructed space in Manhattan’s Javits Center.
The bill pumps $100 billion into hospitals and health facilities in critical need of medical gear like personal protective equipment and intensive care beds, creates a $500 billion loan reserve for large corporations including airlines, and provides $377 billion in grants to small businesses.
It also dramatically expands unemployment assistance, aid that will cushion the blow for a staggering 3.3 million people who filed jobless claims in the week ending March 21.
Americans ‘can’t wait’
“Our nation faces an economic and health emergency of historic proportions due to the coronavirus pandemic, the worst pandemic in over 100 years,” House Speaker Nancy Pelosi told colleagues shortly before the chamber passed the measure.

SEE ALSO :Thunberg, Trump to offer competing visions at climate-focused Davos

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Several lawmakers including top House Republican Kevin McCarthy hailed the measure as a critical lifeline for workers and small businesses.
Treasury Secretary Steven Mnuchin pledged a speedy distribution of checks.
“Americans need that money now, they can’t wait for government to take three or four or six months like we normally do,” Mnuchin said on Fox Business Network, adding he expected direct deposits of the cash to arrive in three weeks.
US stocks sank Friday despite the legislative breakthrough. The Dow Jones Industrial Average slid 4.1 percent, the broad-based S&P 500 shed 3.4 percent and the tech-rich Nasdaq tumbled 3.8 percent.
The Senate had passed the huge measure earlier this week.

SEE ALSO :Trump defense lawyers attack Bidens at impeachment trial

The vote in the House was notable for the implementation of social distancing rules that prevented lawmakers from all gathering on the floor, leading to unprecedented scenes of members sitting in the upper galleries to allow for sufficient spacing.
With the House in recess this week, leaders had wanted a quick voice vote requiring just a few members present.
But Republican Thomas Massie, who opposed the bill, threatened to stall the measure.
Ultimately the House defeated Massie’s maneuver and passed the bill but not before Trump savaged his fellow Republican on Twitter as a “third rate Grandstander.”
Pelosi said the $2 trillion rescue plan — the third and by far largest coronavirus legislative measure — will not be the end of government assistance to battered communities.
“We must advance a fourth bill to address continued needs,” she said, noting that state and local governments would need “vastly more” funding to address the crisis.


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China virus epicentre eases travel restrictions after lockdown : The Standard

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A woman wearing protective gear as she boards a train stopping at Wuhan, which has opened stations again to incoming passengers. [AFP / Hector RETAMAL]

The Chinese city of 11 million people that was Ground Zero for what became the global coronavirus pandemic partly reopened on Saturday after more than two months of almost total isolation.

Wuhan was placed under lockdown in January with residents forbidden to leave, roadblocks ring-fencing the city’s outskirts and drastic restrictions on daily life.
But the major transport and industrial hub has now signalled the end of its long isolation, with state media showing the first officially sanctioned passenger train arriving back into the city just after midnight.
People are now allowed to enter but not leave, and many trains had been fully booked days in advance.

SEE ALSO :China virus cases spike, 17 new infections reported

AFP saw crowds of passengers arriving at Wuhan station on Saturday, most wheeling suitcases alongside them.
Some had managed to slip back into the city a day earlier on rail services that were stopping in the city — but nominally banned passengers from disembarking — as enforcement of the travel ban began to ease.
One woman who arrived on Friday said she and her daughter had been away from her husband for nearly 10 weeks.

For More of This and Other Stories, Grab Your Copy of the Standard Newspaper.  

“As the train neared Wuhan, my child and I were both very excited,” the 36-year-old told AFP on Saturday.
“It felt like the train was moving faster than before, and my daughter said the driver must know we really want to go home.

SEE ALSO :China confirms virus spreading between humans

“She rushed toward her father, and watching them from behind I couldn’t help but cry,” she added.
Staff at Wuhan station were all clad in full protective gear with reception desks lined up ready to process returnees who had been overseas.
China is now battling to control a wave of imported cases as infections soar abroad.
As passengers lined up to exit the station Saturday — some wearing two face masks, gloves, face screens or full protective suits — a worker in a hazmat suit shouted for anyone returning from overseas to come forward.
All arrivals in Wuhan have to show a green code on a mobile app to prove that they are healthy.

SEE ALSO :Factbox: What we know about the new coronavirus spreading in China and beyond

Elsewhere in China long lines of travellers queued up at train stations to board high-speed services back to Wuhan.
Passengers in Shanghai had their temperatures checked by staff in goggles and masks after boarding their Saturday morning service.
Restrictions on residents heading out of Wuhan will not be lifted until April 8, when the airport will also reopen for domestic flights.
Wuhan is the last area of Hubei province to see overland travel restrictions lifted, although some highways leading into the city had already reopened this week.
Gao Xuesong, a worker in Wuhan’s auto industry, arrived in the city Friday night.

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SEE ALSO :Travelers to be screened for ‘Chinese’ coronavirus- Government

“It almost feels like returning to an alien land, because I haven’t been back for more than two months,” he told AFP.
Zero cases, not zero risk
The new coronavirus was detected in December and has been linked to a market in the city that sold wild animals for human consumption.
Wuhan has paid a heavy price for the outbreak, with more than 50,000 people infected and more COVID-19 deaths than any other city in China.
There were three more deaths in the city on Saturday, health officials reported.
Wuhan initially struggled to contain the outbreak and AFP reporters saw long queues of sick patients at one overwhelmed city hospital in January.
But numbers have fallen dramatically in recent weeks. Official figures show there have been fewer than 20 new cases across the province in the past fortnight.
Most of Wuhan’s subway network restarted on Saturday, while some shopping centres will open their doors next week.
Banks reopened earlier this week and bus services resumed but residents have been warned against unnecessary travel and those over 65 have been told to avoid public transport.
A study this week found the lockdown in Wuhan succeeded in stopping the fast-spreading virus in its tracks and gave health care facilities crucial breathing room — but warned against opening up the city too soon.
More than 2,500 people are still hospitalised with the disease in Wuhan, including nearly 900 “severe” cases.
Liu Dongru, of the Hubei Health Commission, said Friday that although parts of Wuhan had been reclassified as “low-risk” areas, work to control the virus needed to continue.
“Zero reported cases does not equal zero risk,” he said.


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