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Former Transport assistant minister John Harun Mwau has lost a bid to be conferred with a presidential award and honour of first Class Chief of the Order of the Golden Heart of Kenya (CGH).

This is after the Court of Appeal upheld the High Court’s finding that national honours were the prerogative of the President and he cannot be forced or compelled.

While throwing out Mwau’s appeal, Justices Kathurima M’inoti, Imaana Laibuta and Ngenye Macharia said conferment of national awards is at the discretion of the president and is given to an individual as a way of recognising their performance and service to the nation.

“Article 132(4)(c) has made it clear that conferment of national awards is the prerogative of the President, which he exercises in accordance with the Constitution and at his discretion. Hence, he reserves the powers to determine who is entitled to be conferred with an award,” said the judges.

They endorsed the decision of the then High Court judge Isaac Lenaola that “there is no guarantee or automatic conferment of honours or awards to an individual and there is no such thing as class conferment of honours to individuals in a particular class, profession or office department.”

Justice Lenaola had further held the eligibility criteria contained in the National Honours Guidebook 2004, there was no provision that an accession to the office of judge, MP or assistant minister was an automatic qualification for the conferment of any national honour or award.

Mwau moved to Court on November 30, 2013 to compel then President Kibaki (now late) to confer him with awards, orders and decorations. He alleged that there was discrimination in the said conferment. Mwau contended that by a notice in the Kenya Gazette of December 11, 2008 to 2012, Kibaki published a list of persons upon whom award, decorations and medals had been conferred. According to the appellant, ministers, judges, assistant ministers and MPs were discriminated against. 

Historical injustices

He argued that the discrimination was a culmination of historical injustices and with an ancillary purpose of ameliorating the effects of a long tradition of State’s violation of human rights and fundamental freedoms, which, if continue unchecked, would permeate into the social fabric and end up becoming a cancer in the society, thus promoting ethnicity and societal conflicts.   

Mwau argued that some individual Judges, Magistrates, Assistant Ministers and Members of Parliament, including himself, who were eligible and whose rights to be conferred with medals, honours and awards had accrued, have been denied that right. He added that the act of denying those individuals the accrued rights and conversely to award the same to others in similar situations, amounted to unequal treatment, was unfair, discriminative and was done in bad faith and in violation of the Constitution.   

Mwau said the National Honours Guidebook 2004 established elaborate structures on the eligibility for conferment of honours and awards.

He said the book was the sole source of government policy in that regard.

Mwau claims between 2008 and 2013, only five judges had been awarded the First Class honour and award of the Order of the Burning Spear (CBS).