Top Kenyan officials must pay damages personally in Miguna case - high court

We start the new year with a sensational turn to the high-profile dispute between the Kenyan government and controversial political figure Miguna Miguna: the high court has ordered that six top government and police officials must together personally pay his legal costs in a case testing the validity of his arrest, torture, and deportation. Not just that, the six officials must also jointly pay the Kshs7m Miguna was awarded in damages by the court for the violation of his rights. Miguna was arrested a year ago under dramatic circumstances and twice deported to Canada within a few weeks, despite judicial orders that he be produced before the high court. Those court orders are still being ignored by government officials and Miguna was unable to attend argument in his case as he is still in Canada and prohibited from entering Kenya. Among other shocking allegations the court heard that state agents blew off the doors to Miguna’s house when they first arrested him, and that he was held for days in a toilet cubicle at Jomo Kenyatta International Airport before he was injected with a tranquilizer to subdue him so that he could be deported for a second time.

Read judgment on KenyaLaw here

The case of Miguna Miguna was, without doubt, the most sensational handled by Kenya’s courts during 2018.

In contemporary Kenya, Miguna is both an admitted advocate and a controversial political figure. His political involvement goes way back however and during the presidency of Daniel arap Moi, Miguna became a refugee from his homeland.

Early in February 2018 he was the target of a dramatic arrest: police and government officials blew off the door of his home to gain access and then shunted him from one police holding facility to another. He says he was tortured, subjected to inhuman treatment and kept incommunicado for several days. Judicial orders that he be produced in court immediately were ignored by the authorities and he was deported to Canada after his Kenyan passport was seized by the Kenyan authorities.  

Despite court orders that the government had to facilitate Miguna’s re-entry into Kenya, these orders were not obeyed, and when he returned to the country he was held in a toilet booth at the airport in Nairobi and “injected with foreign substances” to subdue him while he was put on another flight and deported to Canada once again. He is still in Canada but the case in which he has challenged the government’s actions against him, saying they violate his constitutional rights, has gone ahead in the high court with a full decision now delivered by Judge Chacha Mwita in mid-December.

The outcome of the decision was as sensational as the rest of the Miguna saga. Judge Mwita found that Miguna was entitled to the Kenyan passport that the government had confiscated on the grounds that it had been illegally obtained. In addition, the judge found that the action taken against Miguna violated his constitutional rights and that this violation was continuing, since officials steadfastly refuse to allow him to return to Kenya.

But what will most concentrate the minds of those involved in violating his rights is that the court ordered them – personally – to share in the payment of the costs of Miguna’s case. Worse still, as far as they are concerned, they have been ordered to share in the payment of the damages awarded to him by the court in compensation for the torture and other unlawful treatment he has endured.

Judge Mwita explained this aspect of his decision by saying that compensation was to “act as a deterrent against similar violations in the future” and should send a clear message that if rights are violated, the victim would be awarded damages by the court.

The judge said that the constitution enacted by the people of Kenya envisaged “observance of the constitution and the law by all.”

“Where overzealous public servants commit wanton violation of the constitution and the law, any awards arising from such violations” should not be paid by the public. “They should be borne by the responsible public officers themselves so that the public is shielded from such unnecessary costs.”

All the damages and costs relating to the case were thus to be carried by the respondent individuals “jointly and severally” so that officials would in future be “dissuaded” from “continued assault on our constitution, democracy, human rights and the rule of law”.

The question of individual government officials bearing the costs of legal action and of damages awarded for unlawful action is still controversial in many countries, and the award in this case could well be challenged.

Though the judge’s finding on the question of Miguna’s citizenship and related passport issues are unlikely to be disturbed on appeal, there was another aspect of the order that could well be targeted by government.

On the list of relief sought by Miguna was that the court should set aside the government gazette declaring the National Resistance Movement (NRM), of which Miguna had been a part at the time of his arrest, a “criminal organization”. Though this issue was not dealt with by Judge Mwita in his reasoning, other than to note that Miguna had been said by the respondents to be part of the NRM, the judge granted this order and “quashed” the declaration of the NRM as criminal.

Without any explanation for his decision on the question, this particular aspect of the case could well be challenged and reconsidered on appeal. Even if Kenya’s political reality has shifted since Miguna’s initial arrest and deportation and the declaration outlawing the NRM, the government may want to know more about the circumstances under which a court will hold that banning an organization is unconstitutional.

Miguna himself, still in Canada waiting for his Kenyan passport to be returned to him as the courts have ordered, welcomed the decision of Judge Mwita and said the human rights community should now be demanding that the judge’s orders be immediately carried out.

  • The six respondents who have been ordered to pay Miguna’s costs and damages are Dr Fred Matiang’i, Cabinet Secretary, Ministry of Interior and Coordination of National Government; retired Major Gordon Kihalangwa, Director of Immigation; Joseph Boinnet, Inspector General of Police; George Kinoti, Director of Criminal Investigations; Said Kiprotich, Officer-in-charge, Flying Squad of Kenya’s police service and the (unnamed) officer commanding the police division at Jomo Kenyatta International Airport.