The stand-off between former acting Inspector General of Police (IGP) Gilbert Masengeli and the Kenyan courts of law is a disturbing commentary on the state of governance in Kenya, whose ramifications go beyond the primary actors in this odd drama.
High Court Judge Lawrence Mugambi sentenced Masengeli to six months in jail a week ago, after his repeated refusal to appear before court to explain the fate of activists who disappeared after they were abducted by unknown people suspected to be security agents.
The trio were to reappear, beaten and shaken, on the day the police boss would have started his jail term if the same judge didn’t set aside the sentence after an apology in court on Friday.
The IGP had earlier rushed to the Court of Appeal, where he argued that the sentence imposed on him for contempt of court should be set aside because he had always been represented whenever summoned, but sent back to the offended judge.
Masengeli seemed not to have put into consideration what would happen to the justice system if everyone who is summoned chose to appear through proxies.
The law only works when an aggregate number of people believe that it is necessary for preserving social order for the benefit of all and that, within the overall framework, it can also protect individual rights within a society.
The rule of law earns legitimacy and popular acceptance from the perception that the process is fair and transparent, equally applicable to all, and individuals and institutions can be held accountable for their actions through the judicial process.
Masengeli’s stance not only contradicted these general principles but effectively denuded him of any claim to delegated authority to enforce the law.
The armed forces and the police service can only perform their delegated duties within the confines of the rules set down by the civilian authority of the republic.
It also undermines public confidence in the law and can dissuade many from voluntary compliance. Security honchos should dismount this high horse to preclude further damage to rule of law in Kenya.
Unfortunately, President William Ruto’s comments on the running saga suggested that, like Pontious Pilate, he had washed his hands off resolving the crisis.
In Christianity, the story is told of Moses scaling the heights of Mount Sinai in search of a solution to a crisis of mounting social disharmony among the Israelites.
When he returned 40 days later with two tablets inscribed with the 10 Commandments, the community accepted them as a necessary cure to the creeping ills that they were witnessing.
Those 10 rules embody the basic principles of common law today.
Moses and the Israelites did not accept the 10 commandments because they loved them. Rather, they did so because they understood that the alternative was unmitigated chaos.
That is the real danger inherent in Masengeli’s act of defiance. If the chief enforcer of the law of the land is not willing to live by its dictates, why should anyone else do?
