Parliament should ensure that the Treasury pays court awards promptly

 

MPs in Parliament. State House Monday stopped Cabinet Secretaries from appearing in Parliament where three of them were Tuesday expected to answer questions when MPs resume work after a recess. FILE PHOTO 

In Summary

• It is bewildering that the state not only failed to secure the economic freedom of the individual by dispassionately mediating between disputants, but also that state agents were overt beneficiaries of that dispossession.
• While the award by the judge is just and remains unquestioned, the entire case superbly illustrates how violation of economic freedom for one family is also a violation against many others.  
• Part of the reason for the delay in settling this case prior to the recent court decision appears to be a cadre of bureaucrats who were determined to delay the payment as much as possible, and subsequently give excuses of insufficient budget allocations to meet these liabilities.
• Parliament must understand that effective oversight can only take place when it is apprised of information on tax liabilities borne by Kenyans on account of misconduct by officials in various arms of government.

JUSTICE LUTTA DECISION

By KWAME OWINO
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Last week, a Kenyan court corrected an injustice that had been ongoing for a generation by ordering the State to pay Sh880 million to a retired judge for violation of the right to enjoy possession and use of his land.

Most Kenyans agreed that this was the right decision. The ruling by Justice Lenaola is a shot across the bow for property rights.

The unequivocal declaration that the state and its agents acted unjustly, supported with the adequate award, means that justice won and the country is the better for it.

The judge in this case was persuaded that state agents deliberately violated the retired judge’s constitutional rights by allowing encroachment and dispossession of his land.

It is bewildering that state agents not only failed to secure the economic freedom of the individual by dispassionately mediating between disputing parties, but were also overt beneficiaries of that dispossession.

Apart from the finding that some agents of the state profit directly by allowing conflicts to occur, it is clear that public facilities such as schools and even police stations were deliberately constructed on disputed property in order to make restitution impossible through fragmentation and permanent alteration of use.

SLOW JUDICIAL SYSTEM

This means that despite the existence of laws, the aggressors were determined to make any restoration impossible.

Another important lesson for economic freedom can be learned from the fact that this matter took three decades to resolve.

Although different judges may have considered it, the long delay still indicts the judicial system because it means that those who dispossessed the retired judge of his property intended to wait him out.

READ:  Judge wants his ‘grabbed’ land back

In essence, they knew that with a slow system for resolving cases, the complainant would have to be extremely patient and lucky to see the matter resolved.

This matters for economic freedom because resources of time and money were tied in a relentless pursuit of justice, with the odds ever rising to favour the aggressor.

Thus while a judge may have brought this matter to some conclusion by reinforcing the economic rights of the owner of the land, that the issue could not find quick and just resolution is still an indictment to the quality of the Judiciary.

COURT ORDER COSTS CITIZENS

Whereas the award by the judge is just and remains unquestioned, the entire case superbly illustrates how violation of economic freedom for one family is also a violation against many others.  

This is because the dispossession may have been driven by the personal hatred of a few officers of state, but the substantial award will be paid by the State out of people’s taxes.

For the obliging taxpayers therefore, this violation of economic freedom was paid for in the first instance because of the initial abuse of power and in the second instance by the requirement for government today to satisfy the court order for Sh880 million.

Thus while the reform of the court system and purging of corruption and incompetence is still too slow, this case shows that the Kenyans will continuously bear the financial costs of more payments to individuals whose rights were violated.

DETERMINED TO DELAY

Notwithstanding the award, it is still possible for entrenched, vengeful individuals within the Executive bureaucracy to continue their intransigence by delaying settlement of this claim indefinitely.

Prior to this court decision, part of the reason for the delay in settling this case appears to be a cadre of bureaucrats who were determined to delay the payment as much as possible, and subsequently give excuses of insufficient budget allocations to meet these liabilities.

Kenyan lawmakers must take their budget oversight and law-making more seriously by demanding information from the Treasury on dedicated plans to liquidate the financial liabilities of the State related to judgments of this nature.

No doubt there is bound to be the claim that this is heavy interference with the discretion of the Executive, but Parliament must understand that effective oversight can only take place when it is apprised of information on tax liabilities borne by Kenyans on account of misconduct by officials in various arms of government.

Pressure to settle these claims would also ensure that Parliament and the Executive are compelled to monitor circumstances that generate liabilities and reduce them. That would expand economic freedom of Kenyans by reducing liabilities that demand increases in tax rates, or reductions in service delivery.

Kwame Owino is the Chief Executive Officer of the Institute of Economic Affairs (IEA-Kenya), a public policy think tank based in Nairobi. Twitter: @IEAKwame