The High Court in Nairobi has strongly criticised the government’s action in deporting from Kenya a diplomat representing Niger. Ali Oumarou, who has been recognised by Kenya as honorary consul for Niger, was summarily deported in August 2019. Oumarou has since challenged his deportation in the Kenyan courts from outside the country. The High Court in Nairobi has now given its judgment on the matter, with a scathing assessment of the government’s failure to adhere to the constitution. Judge James Mukau said the court would not tire of reminding the government that the constitution was Kenya's supreme law. ‘It has life and it has teeth,’ he said. The way Oumarou had been treated was ‘unbearably shameful’ for a democracy, said the judge. He granted a slew of orders, including one that stopped the government preventing Oumarou from returning to Kenya without proper cause and without following due process.
Ali Oumarou has lived in Kenya for at least 10 years. He is married to a Kenyan and they have two children, both citizens of Kenya. He is also the honorary consul of Niger in Kenya, with a bar, restaurant and other businesses in Nairobi that employ more than 100 people.
Given the stable life he has created for himself in Kenya, he must have thought he was dreaming when, on 22 August 2019, five men – they did not identify themselves – approached him and said they were under orders to ‘escort’ him to Jomo Kenyatta Airport and make sure that he left the country.
Though he asked why, he received no answer. And though he explained that he was a diplomat, the five men were unimpressed. Unable to do anything other than cooperate, he went to the airport
Oumarou later discovered that he had been declared a prohibited immigrant a week before he was given his marching orders, but that declaration had not been served on him.
From outside Kenya Oumarou then brought an application for the Kenyan courts to declare that his constitutional rights had been infringed by the action taken against him. So were his rights under the Vienna Convention on Diplomatic Relations. He also asked for his name to be taken off the list of prohibited immigrants and for his work permit to be renewed.
The four government respondents, including the cabinet secretary for the interior and coordination of national government, said Oumarou was a prohibited immigrant and that this gave the cabinet secretary the power to remove him as being ‘unlawfully present’ in Kenya.
This declaration of Oumarou as a prohibited immigrant meant his entry and work permits were automatically revoked.
The respondents also hinted that Oumarou might have been involved in illegal activities: they said the state had an absolute right to remove those ‘suspected to be involved in criminal activities such as money laundering and other transitional organised crimes’. This was not a matter of a civil right, they claimed.
Even the UN Declaration of Human Rights and other similar charters ‘do not give a right of entry to aliens’, while under the International Convention on Civil and Political Rights states had the right to remove any alien for ‘compelling reasons’, ‘or for national security’.
They warned that the orders sought by Oumarou would, if granted, ‘violate the separation of powers’ and interfere with the role of the executive in foreign affairs.
Judge James Mukau said, however, that it would be ‘improper’ to prepare and issue a deportation order ‘without the affected party being made aware of the laws he was breaking and accorded a fair chance to defend himself.’
A deportation order against Oumarou was first issued in December 2018, the day after the Kenyan government officially recognised him as representing Niger. But nothing was done about that first order, and he was not told that such an order was pending. ‘This … was not only wrong but illegal, as it offends all constitutional and statutory imperatives for fair administrative action, that is, transparency, in the conduct of such serious matters,’ Judge Mukau held.
Oumarou claimed he had never engaged in any criminal activities and he said he enjoyed diplomatic immunity as a result of his recognition by Kenya as honorary consul.
Against this background, the judge held that the procedure for dealing with diplomats was not followed. Oumarou’s diplomatic immunity had not been waived by Niger and the Kenyan authorities were bound by the constitution which included the rule of law, human rights, transparency and accountability.
‘It is not for them [the government] to urge that they should be accorded the autonomy vested in them by statute without unnecessary intervention of the court when it is clear such autonomy has been abused by issuing [a] deportation order,’ said the judge. Further, the government had failed to serve the deportation order or to observe Oumarou’s right to be heard.
‘I find that due process was not followed,’ said Judge Mukau. It would be contrary to law for Oumarou to be deported without having been served with a deportation order and being given an opportunity to be heard. ‘This very act goes against the dictates of our constitution and international law, and should not be allowed at all.’
The right to fair administrative action was of great significance, and if a fundamental right or freedom was to be adversely affected by administrative action, it was ‘even more forceful’ that the person concerned had the right to written reasons for the action. Oumarou was, however given no hearing, nor was he informed of any charges against him.
‘I find that the deporting of [Oumarou] to Niger without any formal process or service on him … and failure to accord him a hearing and giving him time to appeal against the deportation order, violated [his] constitutional rights.’ The behaviour of the cabinet secretary was ‘unfair, unreasonable, irrational, unprocedural and illegal’ and the declaration ‘deserved to be quashed’.
This should be a reminder that the constitution of Kenya was the country’s supreme law, said the judge. ‘It has life and it has teeth.’
He said the way that Oumarou had been treated was ‘unbearably shameful’ in a democracy and extremely callous. Oumarou had a legitimate expectation that his work permit would be renewed and this expectation, along with his right to fair and lawful administrative action, was violated.
There was ‘no bar’ preventing the court from intervening in what the judge characterised as ‘executive over-reach’ and he declared that Oumarou’s constitutional rights and his rights under the Vienna Convention had been infringed by the government.
The government’s failure to make a decision on Oumarou’s January 2019 application for a work permit was unreasonable, irrational, contrary to the constitution and thus illegal and void.
He declared that Oumarou enjoyed diplomatic immunity and could not be unlawfully arrested and deported in blatant disregard of applicable international law. All declarations issued against him were declared illegal and set aside.
The court further issued an order compelling the government to remove Oumarou from the list of prohibited immigrants, and prohibiting the government from stopping his return to Kenya without proper cause and without following due process.
A permanent order was also issued restraining the government from arresting and deporting Oumarou without proper cause and without following due process.
All in all, it was a complete rout – the inevitable result of the government not following proper procedure and acting as though it was above the law. Once again, and in harsh terms, the government was reminded that it has to comply with the constitution, and that the judiciary in Kenya is not afraid of ensuring that it does so.