(Re)deportation of Activist Lawyer Highglights Continued Judicial Independence in the Face of Crumbling Rule of Law in Kenya

[Tim Fish Hodgson is a Legal Adviser at the International Commission of Jurists and Simphiwe Sidu is a Legal Research Consultant for the International Commission of Jurists.]         

Miguna Miguna is a prolific Kenyan activist and lawyer who describes himself as a “General” in National Resistance Movement (NRM) Kenya. He ran to be elected as Governor of Nairobi in Kenya’s controversial 2017 elections. He is therefore a rival to current Kenyan government.

Over the last few months the Kenyan government has aggressively pursued Miguna’s deportation from the country. The manner in which his deportation has been pursued, understood in the context of Kenya’s current political crisis, highlights the resilience of Kenya’s robustly independent judiciary, previously noted here. In the face of increasingly polemical attacks on the judiciary by senior executive officals, including President Kenyatta himself, the judiciary’s independence continues to act as a firm bulwark against the otherwise crumbling rule of law in Kenya.

According to a recent Kenyan Appeal Court judgment, on the morning 2 February 2018 officers from Kenya’s Directorate of Criminal Investigations and the Inspector General of Police “blew up the gate and entry door to [his] house using military detonations [and] destroyed [his] property”. The officers did not identify themselves, were not wearing uniforms, were driving unmarked vehicles, did not read Miguna his rights before detaining him and refused his requests for access to legal counsel.

Why was Miguna arrested?

Miguna was held without charge that day – and without access to physicians, advocates family and friends – and was not charged until 6 February 2018 when he first appeared in front of a Magistrate. The eventual charges include “administering of an oath to Raila Amollo Odinga purporting to bind [him] to commit a capital offence of treason”; organising a public meeting without notice; and professed membership in an “organized criminal group” – the NRM.

Odinga, the leader of the opposition in Kenya claims to have legitimately won the 2017 elections which, were invalidated by Kenya’s Supreme Court after Kenyatta had been delcared the winner. The Court held that the election was riddled with “irregularities” that were “so grave that they … affected the credibility of the election and [its] results”.

Miguna has both Canadian and Kenyan passports having lived in Canada for a number of years from 1988 while in exile. This has for years been used by his political rivals who have publicly labelled him a “foreigner”. The Kenyan government insists that it intends to deport Miguna “home” to Canada because he is not a Kenyan citizen. Though he holds a Kenyan passport issued in 2009, in a statement the government claimed that Miguna unlawfully acquired this passport while he was working for then Prime Minister Odinga. This, they argue, was unlawful because he still held Canadian citizenship and dual citizenship was not legally permitted at the time.

In terms of Article 17(2) of Kenya’s current Constitution enacted in 2010, Miguna can only have his Kenyan citizenship revoked if: a) it was “acquired by fraud”; or b) his parents were “already citizens of another country” at his birth; or c) if he was older than eight years when he was “found” in Kenya. Miguna’s response to the government’s claims that he is a foreigner is that “the Constitution is crystal clear: no one can invalidate or purport to cancel the citizenship of a Kenyan born citizen.”

Disregard for court orders and legal process

The Magistrate ordered that Miguna appear in front of the High Court by 3pm that same day. Instead Miguna claims to have been physically threatened and searched before his passports were illegally seized. He was then driven to the airport for deportation against his will.

Meanwhile the Court of Appeal records that High Court Judge Kimaru was “duped” into waiting at High Court until 7pm under the belief that Miguna would be brought before him. On discovering that Miguna was instead in the process of being deported to Canada, the Judge found that Miguna’s deportation was unlawful. Finding that the deportation showed “obvious contempt of the orders of this court and a deliberate attempt by State agencies to subvert the Rule of Law”, Judge Kimaru ordered that Miguna must be allowed to return to Kenya at the expense of the State, on a day chosen by him. He also held the various government officials who had disobeyed these orders in contempt of court for flagrant violations of court orders.

It is these decisions that four applications brought by senior executive officials sought to appeal to the Kenyan Appeal Court (the officials include the Cabinet Secretary, the Minister of Interior, the Director of Criminal Investigation, the Inspector General, the Director of Public Prosecutions and the Director of Immigration Services). The applications sought to overturn the contempt order and stay of execution of the decision to grant Miguna the right to return to Kenya. Given the apparent disregard for the rule law by executive officials, bemusingly, counsel for the applicants told the Court that “If we do not follow the law there would be anarchy. If we do not follow the law we shall be doomed”. Because of the “mischief” that might result from Miguna’s return, he therefore implored the Court to stay Miguna’s return.

Court of Appeal rules that Miguna must be returned to Kenya

Much of the Court of Appeal’s decision rides on the universal legal principle that the rule of law requires that court orders are obeyed by those whom they direct to action. This, the Court emphasized, applies to every person regardless of their status in society and “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.”

To prevent the “constitutional edicts of equality under the law, and the upholding of the rule of law” from becoming “mere platitudes” instead of “present realities” the Court made it clear that it is required to “deal firmly and decisively with any party who deigns to disobey court orders”. This it concluded also serves “to preserve [the Court’s] authority and dignity”.

In these applications, the government argued that returning Miguna to Kenya would result in irreversible prejudice that might make future proceedings redudant. The Court of Appeal rejected this argument, finding that if anything Miguna should have the right to defend himself in a fair trial in Kenya. Nor, it concluded did Miguna’s return present any “clear and present danger of social upheaval or break down of law and order”. At most it noted Miguna’s return presented the possibiility of “some embarrassment” to the executive officials responsible for the deportation.

The overall result, therefore, was that while the Court permitted the appeal against the contempt proceedings to continue, it found that Miguna must be allowed to return to Kenya. Miguna’s return on 26 March, however, did not go as planned.

Assault, further contempt for court orders and Miguna’s re-deportation

Upon Miguna’s return to Kenya, he was deported again. This time he was detained at the airport for three days before he was put on a flight to Dubai. Miguna claims that he was drugged and beaten before being put on this plane. Journalists have claimed that they too were assaulted by the police during this process. During this period, on 27 March, High Court Judge Aburili ordered that Miguna be released and be presented in Court the next day.

When the matter came before Judge Odunga on 28 March he summoned the executive officials involved in the deportation including Internal Secretary Fred Matiang’I to appear before him personally. When they failed to appear in court as instructed, Judge Odunga once again found the officials in contempt of court and liable to pay fines of approximately $2000 each.

Miguna’s deportation in context: judicial independence and the crumbling rule of law in Kenya

Deepening the glaring divide between judiciary and the executive, Matiang’I reacted by sharply critcizing the the judiciary in startling terms. Matiang’I is quoted as saying “there is a group of judges trapped in an unholy alliance with civil society groups and activist lawyers intent on embarrassing the government”.

Making matters worse, he continued to say that there “is an evil clique of judicial officers who want to drag us by the collar through trial by the public court”. Current President Uhuru Kenyatta called the Supreme Court “wakora” (crooks) after it invalidated his election victory in 2017.

Even before the election the Kenyan Judicial Service Commission condemned the “emerging culture of public lynching of judges and judicial officers by the political class” as a “vile affront to the rule of law”.

In early February, the Kenya section of the International Commission of Jurists too condemned “the increasing and blatant disregard of Court Orders by the State and its agents” noting that “many lives were lost and sacrifices made in order to ensure that Kenyans enjoy their guaranteed fundamental rights and freedoms” under the rule of law.

Despite the growing tension between the judiciary and the executive in Kenya, in its unanimous judgment, the Court of Appeal demonstrated its strong commitment to upholding the rule of law in the face of significant political pressure. In doing so it – alongside many other Kenyan judges – merely performed its duty in terms of Kenya’s Constitution which firmly entrenches the rule of law as one of its “national values and principles of governance” alongside dignity, equality and social justice. The performance of judicial duty, which is a far cry from acting as an “unholy alliance” or “evil clique”, is an expression of the judiciary’s independence.

Understood in its legal and political context, Miguna’s deportation highlights the magnitude of threats to the rule of law in Kenya and the potentially far-reaching consequences. As a South African court has put it “If the State… does not abide by court orders, the democratic edifice will crumble stone-by­ stone until it collapses and chaos ensues.”