Kenyan court of appeal ruling

19 March 2018 · Carmel Rickard

THE legal battle over the ongoing failures of Kenya’s government to obey court orders has taken a fresh turn. In a new and significant ruling, the court of appeal has refused an official petition: high ranking Kenyan officials asked the appeal court to stay high court directions that activist lawyer Miguna Miguna be allowed to return home. As Carmel Rickard explains, this follows last month’s high court orders that Miguna, deported to Canada in flagrant defiance of judges’ instructions, must be brought back at government expense and on a date of his choosing.

THANKS to the firm line taken by three appeal court judges, activist Kenyan lawyer Miguna Miguna, deported to Canada last month under unprecedented circumstances, will now be able to return to his homeland on 26 March as he plans.

His forced expulsion from Kenya, carried out in flagrant contravention of judicial orders, led to several courts issuing decisions on his arrest and deportation. Among these was a crucial ruling by high court judge Luka Kimaru that Miguna must be allowed to return to Kenya – the land of his birth – at state expense, on a day of his choosing.

In response to that ruling, government officials brought an urgent appeal court application asking for the effect of the judgment to be stayed. Success would have meant that Miguna could not have come back until after any appeal was finalised. These officials included the cabinet secretary for the interior ministry, the director of criminal investigation, the inspector general of the national police service, the director of public prosecutions and the director of immigration services. Also involved was the law society of Kenya, which argued against any stay of the high court orders.

The application was heard by appeal court judges Roselyn Nambuye, Patrick Kiage and Kathurima M’Inoti. They have now handed down their decision, saying they were unimpressed by argument for the orders to be put on hold.

Their judgment contains some remarkably strong statements on the need for court orders to be complied with by everyone, regardless of status. These comments are especially noteworthy because of the ongoing tension between the courts and the government in Kenya over failure by government officials to obey judicial orders.

Retelling the story of what happened to Miguna – a barrister with appearance rights in Canada and in Kenya – the appeal court said state officials “duped” a judge: he was told by immigration officers that Miguna had been taken to certain law courts as ordered, and the judge “ended up waiting within the court precincts well beyond 7pm, for a man who was not to be produced” despite “the plethora of court orders” – because in fact he was being deported to Canada.

The appeal court quoted remarks of the “duped” high court judge: “It is clear to this court that there is an obvious contempt of the orders of this court and a deliberate attempt by State agencies to subvert the Rule of Law.”

Summarising what happened later, the appeal judges said the high court found that senior government figures “acted in concert and in a coordinated manner to defeat the ends of justice.”

In the end the high court found government action cancelling Miguna’s passport and deporting him was “null and void and of no legal effect because it was issued in contempt of the orders of this court”.

That galvanized the officials. They hurried to the appeal court saying they wished to appeal against the judgment, and that the high court’s orders should be stayed pending that appeal.

An affidavit supporting Miguna’s opposition to any stay of the high court order explained among other things that when Miguna was arrested, his gate and the door to his house were blown open “using military detonations”. Those who arrested him “were not wearing police uniforms, were not using marked police vehicles and they did not identify themselves before entering (his) home and abducting him.” They did not read him his rights and refused him access to counsel. He was taken from one police station to another and held incommunicado.

One of the legal contingent opposing the government in the case said whenever there was a threat to the rule of law, such as in this case, via “disobedience of High Court orders in a crude manner”, then judges had to speak with one voice. Granting a stay in such a case “would be to set a dangerous precedent that would sow chaos in our constitutional order.”

Counsel for the Law Society of Kenya, another party to the case, said they became involved because of the “blatant violation and disobedience of court orders” and they considered Miguna’s treatment “a flagrant violation of the constitution”.

For their part, the legal representatives of the government officials involved said their clients would be handicapped in defending themselves unless the far-reaching orders of the high court were suspended.

Stressing that its task was only to consider “whether the intended appeal was arguable” and whether a stay of the high court orders should be granted pending the appeal, the court said when judges issue orders, “they do so not as suggestions or pleas to the persons at whom they are directed. Court orders issued ex cathedra, are compulsive, peremptory and expressly binding. It is not for any party, be he high or low, weak or mighty, and quite regardless of his status or standing in society, to decide whether or not to obey, to choose which to obey and which to ignore or to negotiate the manner of his compliance. This court, as must all courts, will deal firmly and decisively with any party who (disobeys) court orders and will do so not only to preserve its own authority and dignity, but the more to ensure and demonstrate that the constitutional edicts of equality under the law and the upholding of the rule of law are not mere platitudes but present realities.”

The court found that the government officials should be allowed to appeal but said it did not see why the orders in relation to Miguna’s return should not be carried out. How did his return “portend a clear and present danger of social upheaval or a breakdown of law and order”, the court asked.

“Beyond the possibility that those whose acts were invalidated by the … (court) may suffer some embarrassment, we are unable to discern any real loss or prejudice.” There was also “something to be said about a Kenyan-born litigant being accorded the opportunity, constituent with his right to a fair trial, to return to the country of his birth and attend to the cases filed by and against him.”

Directing that all intended appeals, once filed, be “fast-tracked”, the court dismissed, with costs, the application to suspend the high court’s orders.

Now Kenya waits anxiously for March 26: what will happen when Miguna returns, and what will the courts say on the constitutionality of government steps against him?

http://kenyalaw.org/caselaw/cases/view/148784/

Carmel Rickard

About the author

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