Political orders not excuse to flout law

I have just finished reading, for the second time, the decision by the International Center for the Settlement of International Disputes in the case between Cortec Mining Company Limited and the Kenyan government. One of the issues that the case raises relates to use of public position to unfairly confer benefits on private individuals.

The genesis of the dispute was the decision to cancel all mining licences in Kenya. The licence that Cortec had to mine in Mrima Hills at the Kenyan coastal region was one of those affected by the order. Cortec went to court to challenge this decision arguing that their proprietary rights were being expropriated without due process and without compensation.

Both the High Court and the Court of Appeal rejected these arguments and upheld the decision of the government necessitating the case at the arbitration tribunal.

During the tribunal hearings, one of the key issues, was the legality of the licence issued by the government official. The government on the one hand argued that the official had no discretion to issue the licence since Mrima Hills was a reserved area, where no prospecting or mining operations could be authorized. On the other hand, Cortec argued that the case was shrouded with politics, since they even had to seek political support to have their licenses renewed.

While the tribunal acknowledge the existence of political pressure and influence on some of the processes, it held that its decision could only be based on the law. Two critical things that they referred to in their decision that is important moving forward. First, is the fact that political considerations and pressure cannot override legal provisions. There are numerous instances when politicians and superiors put pressure on junior colleagues to ignore certain provisions of law in their decision-making process.

The decision by the international tribunal clearly provide that any government official who buckles under such pressure should prepare to be held accountable. You cannot use the excuse that I was ordered and as a result my only choice was to comply.

A country that is based on the rule of law, such as ours, requires that decisions by public officials be strictly in accordance with the law and not political exigencies. Secondly, where the law gives a public official discretion in exercising their power, one cannot simply respond to questions on how they made their decision by waving the discretion flag. Discretion is not unfettered. It must be exercised fairly and in accordance with the law.

The essence of the decision is to put a spotlight on the process of state capture that is becoming endemic in the country.

This past week I was involved in a forum where the argument was made that contrary to previous definition of state capture which focused on the action of private firms capturing the state, the more prevalent form in Kenya is where bureaucrats are the engineers of state capture, using their positions of influence to make decisions that benefits themselves and not the public good. Thus, as the budget speech was read in Parliament last week, one will not be surprised that some of those involved in budget making have padded some line items with monies for their private benefit. In such cases, the actual and accurate implementation of the budget without more results in loss of public funds as those responsible for its preparations will have benefitted for their private gain.

When courts issue that kind of decision that the tribunal in the Cortec case did, they make it easier to deal with the malaise afflicting the society. Public servants must remain true to their oath of office and avoid pandering to the whims of politics. If they do so the chances, they will face themselves with the embarrassing situation of being howled before courts to answer to corruption and other criminal charges are very high. Time has also come for the country to ask questions regarding those who act as brokers and agents in several of the big contracts involving government as happened in the Cortec case.