Worrying failure of Kenyan government to heed court orders

20 September 2018 · Carmel Rickard

EXPLOSIVE tension between two rival political leaders in Kenya may have been eased by last week’s unexpected meeting between them but there’s another, growing, tension of major concern: that between government and the judiciary in Kenya.

Kenya’s president, Uhuru Kenyatta and his rival, Raila Odinga, installed as “the people’s president” in a “mock” swearing-in last month, took the world by surprise on Friday last week when they held an unscheduled meeting. The two men, who have had barely a civil word to say about each other for some time, emerged from their meeting calling each other “brother” and vowing to promote the healing of Kenya’s divisions.

If this new spirit of cooperation lasts, there will be many urgent issues to address, but few are more important than government’s attitude to judicial independence and respect for judicial decisions.

With just two months of the year gone, there are already many court decisions relating to contempt of court applications brought because government officials have refused to obey court orders. But none of these decisions has caused more of an international and domestic sensation than the conflict between judiciary and government over the deportation of Kenyan lawyer/political activist, Miguna Miguna.

There have been at least three court judgments on the Miguna matter in February alone, with threats of further appeals by the government.

Miguna is a barrister admitted in Kenya and in Canada where he sought asylum after fleeing Kenya under the Moi regime. At the time he was deported he was a strong and outspoken supporter of Raila Odinga and he played a key role in the alternative “swearing-in ceremony” of Odinga. (This event provided another indication of heightened tensions between the judiciary and other arms of state as government officials ignored court orders to restore television and radio stations that were taken off air to prevent coverage of the “swearing-in”.)

A few days after Miguna officiated at Odinga’s “swearing-in”, he was detained by Kenyan government officials. Despite court orders for his release, he was deported to Canada.

An application was then brought on Miguna’s behalf before Judge Enock Chacha Mwita, who commented that the court had never been faced with a case of this kind before, “where a person said to be a citizen has been deported to another country and declared a prohibited immigrant, thus unwelcome in a country he calls his birth place.”

Referring to the fact that government officials refused to produce Miguna before a judge, in defiance of earlier court orders, Mwita said the case was also unusual “because it has been filed on (Miguna’s) behalf by his advocates on grounds that they could not have access to him.” After the cabinet secretary for the interior declared Miguna a prohibited immigrant on February 6, and that he was not a citizen of Kenya, he was put on a plane for Canada.

Miguna’s application was for a conservatory order and was limited in some respects pending his return at which stage he would argue certain matters more fully. In addition, he asked the court to order that his Kenyan passport be returned and that he be brought back to Kenya at government expense.

In replying affidavits, the cabinet secretary for the interior said Miguna obtained Canadian citizenship while a political refugee, at a time when it was unlawful in Kenya to hold dual citizenship. This is now allowed, but Miguna had never applied regain his citizenship. He added that Miguna acted detrimentally to national security and so he had declared the barrister a prohibited immigrant and ordered his deportation, all of which was done “in accordance with the constitution”.

Miguna’s legal team argued that he had not been accorded fair administrative action; there was a procedure for removing citizenship and this had not been followed.

Under the current constitution, no-one could take away Miguna’s citizenship, they added, and he was deported “in disobedience of court orders”. Courts had to “stand up in defence of the constitution” particularly given that another court had ruled in a related matter that the officials in this case acted in contempt of court.

The judge said that when deciding a “conservatory order”, the court had to consider whether there was a real or impending danger of constitutional rights being violated such that the applicant would suffer prejudice of the order were not granted.

“It cannot be denied that this petition raises serious constitutional and legal issues. … Allegations of breach of the constitution and violations of the bill of rights such as revocation of citizenship are grave acts ….”

Government officials had argued that Miguna had to be deported on grounds of national security, but when the court had to balance the constitution and the bill of rights against national security “the constitution and the bill of rights must prevail”. One of the principles in the constitution confirmed this: “National security should be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms.”

This was the line taken by the courts under the new constitution, he noted, quoting a 2016 appeal decision which said any suggestion that courts ought not to interfere with executive decisions based on national security was “completely unacceptable and has no place in our progressive constitution”.

There was a strong case to grant the application; if he were to refuse to grant the orders it would be paying mere “lip service to the values and principles” of the constitution. He therefore suspended the declaration that Miguna’s presence in Kenya was contrary to national interests and that he be deported. Similarly, the decision to cancel Miguna’s passport was suspended.

The judge ordered the director of immigration to issue Miguna with travel documents allowing him to return to Kenya and remain in the country while the elements of his petition were fully argued in court. Once Miguna decided on a return date, the government was to “facilitate” his re-entry into Kenya. Moreover, the chairperson of the Kenya national commission on human rights was to be allowed access to the immigration section of the airport to witness government’s observance of “the relevant constitutional, human rights and immigration laws” as re-entered the country.

While Miguna welcomed the decision, government officials commented that it was “not in the best interest of the country” and that the government still held its view that Miguna’s deportation was lawful.

http://kenyalaw.org/caselaw/cases/view/148182/

http://kenyalaw.org/caselaw/cases/view/147912/

http://kenyalaw.org/caselaw/cases/view/147915/

Carmel Rickard

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