www.ogiek.com/news/news-post-05-10-31.htm -
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Published on: 10/19/2005
Last Visited: 1/11/2008
But Mr Otiende Amollo, the chairman of the Kenya chapter of the International Commission of Jurists, says Section 14 only protects the President when he is exercising his lawful duties and cannot shield him when he disregards a court order.
"The Constitution also requires the President to abide by the law," he says."Where he fails to obey a court order or circumvents it, he is defying the Constitution, which he swore to protect."
"If we accepted that the President cannot be held liable because of Section 14, it would be an admission that the President is above the law, which is not true," he adds.
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But Mr Amollo says the argument has been made many times but has not been supported by any court.Anyone who seeks to circumvent a court order is seen to be in contempt, he says.
Culture of impunity
People who read mischief in the order, such as Kabete MP Paul Muite, say it was meant to stop the President from holding the rally in Olenguruone.The rally, they add, was a ceremonial event and therefore of only political, rather than legal, significance.
"We must stop looking at issues through a referendum lens," says Mr Amollo, in reference to the ongoing campaigns for and against the proposed Constitution.
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Mr Amollo cites more recent examples, among them the decision by the Kenya Revenue Authority to introduce electronic tax registers despite a court order and the arrest of Nairobi MPs David Mwenje and Reuben Ndolo in the court precincts even after they were granted bail.
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"The Olenguruone case seems to be a continuation of the same old script," Mr Amollo says.
"When the President falls into that trap, it is not the rightness of the order that is in question," he argues.
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Says Mr Amollo: "It is highly unlikely that the court would commit the President for contempt.
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"There is a very real danger of a near-collapse of the ideal of the separation of powers just as there is a collapse of the concept of collective responsibility in the Cabinet," Mr Amollo says.