New laws bolster courts to make landmark rulings

The new Constitution has given the courts renewed energy and confidence to stamp their authority in the dispensation of justice as shown by recent landmark rulings that have caught the Executive flat-footed.

While it is not the first time Executive decisions have been overturned at the courts, two rulings in the recent past suggest the country’s justice system could be regaining its decisiveness — eroded by years of political interference — for their singular boldness and unswerving loyalty to the law.

Legal procedure

No more will there be roadside declarations driven by political expediency or infringement of simple basic constitutional rights. Two High Court Judges — Roselyn Wendoh and Mohammed Warsame — won accolades by upholding judicial supremacy in two recent judgments.

Lady Justice Wendoh reversed a decision by President Kibaki to downgrade the Amboseli National Park to a game reserve while Mr Justice Warsame ruled on renditions of terror suspects to Uganda.

The precedent- setting rulings served as a warning that the new constitutional order has started taking effect and nobody will be allowed to contravene the laid down legal procedure or trample on the rights of others.

On the handing over of terror suspects to Uganda for trial over a bomb blast in Kampala in July that claimed more than 50 lives, Mr Justice Warsame censured the Head of State for abdicating his constitutional obligations.

And on the downgrading of the Amboseli National Park, Lady Justice Wendoh said the move was illegal and could not pass the test of the new constitution.

In a desperate attempt to woo the Maasai community to support the 2005 proposed constitution, President Kibaki ordered the downgrading of Amboseli to a national reserve. The move was opposed by various conservation groups, who moved to court to quash the directive. Internationally acclaimed as the haven for wildlife, the nearly 400 square kilometres Amboseli is home to herds of elephants that walk across the savannah grasslands. The national park was gazetted in 1974.

It is also famous for the stunning views of Mount Kilimanjaro — Africa’s highest mountain — in neighbouring Tanzania and brings in approximately Sh257 million a year from park fees and related tourist activities. This money helps administer Amboseli and other national parks. But following the presidential directive to turn it into a game reserve, the order was implemented through a legal Notice published in the Kenya Gazette of September 29, 2005. And notwithstanding the widespread protests, the President announced the move to transfer the Amboseli to Kajiado County Council was final and irreversible.

Addressing the Maasai, the Head of State had reminded them that the land housing the park belonged to them and “we feel the Government cannot continue hanging on it.”  He wanted to see the community sharing the park resources with the central government.

Aggrieved by the decision, conservation groups Nature Kenya, Kenya Tourism Federation, and Eastern Africa Environmental Network, argued that the new Constitution under Section 62 (g), as read with Article 62 (3) had a provision that the yet to be formed National Land Commission would administer all national parks.

The conservationists through lawyer Cecil Kuyo sought for orders to quash the Kenya Gazette Supplement No.70 of September 29, 2005, de-gazetting Amboseli National Park and gazetting it as Game Reserve.

Prior to moving to court, local and international conservationist Born Free Foundation, International Wildlife Coalition and East African Wildlife Society had desperately prevailed upon the President to reverse the decision warning that the move would lead to the disintegration of the country’s cherished national parks.

After the pronouncements of the court rulings, Nature Kenya hailed the decision.

“The future of Kenya’s wildlife lies with citizens and that local populations, who share land with wildlife and often suffer the costs of conservation, must benefit not only from environmental services but also from concrete financial revenues derived from conservation,” the organisation said.
Nature Kenya’s advocacy manager Serah Munguti said the court ruling was a firm reminder that, “policies must be made clearly and leadership decisions likely to affect the integrity of ecosystems should be made in consultation with experts and not for political expediency.”

Amboseli is located in Loitokitok, Rift Valley. The ecosystem mainly savannah grassland spread across the Kenya-Tanzania border. The park is famous for being the best place in Africa to get close to free-ranging elephants among other wildlife species.

Information by the Kenya Wildlife Services (KWS) says park can be accessed road from Nairobi via Namanga (240 km) on the Nairobi - Arusha Road, through Meshanani Gate. The other road is from Nairobi via Emali (228 km) on the Nairobi - Mombasa Road. Access from Mombasa is mainly through Tsavo West National Park via Kimana (Olkelunyiet) Gate.

The park has a single airstrip for light aircrafts at Empusel gate. Other airstrips exist at Kilimanjaro Buffalo Lodge and Namanga town. It has five Gates-Kulunyiet, Meshanani Kitirua, Iremito and Airstrip Gate 

The national park’s major attractions include large herds of elephants, Mt. Kilimanjaro, leopards, cheetah, wild dogs, buffaloes, rhinos, elephants, giraffes, zebras, lions, plains games, crocodiles, mongoose, hyrax, dik-dik, lesser kudu, and nocturnal porcupine. It has also 600 species of birdlife.