- In February 2018, we witnessed the forceful and inhumane arrest of Miguna Miguna for allegedly aiding an act of treason by participating in swearing-in ceremony of Raila Odinga as the ‘People’s President’. Miguna was held incommunicado by the police and after non-cooperation from the police, his lawyers sought and successfully obtained orders from the High Court to have him produced in Court without further delay. Rather than comply with the court order, the Cabinet Secretary for Interior alongside the Director of Immigration and the Inspector General of the National Police Service conspired to illegally deport Miguna to Canada after forcefully repossessing and defacing his Kenyan passport.
- In light of these events, Miguna’s lawyers sought further intervention from the High Court and obtained yet another court order that nullified the act of deportation; instructed the Directorate of Immigration to issue Miguna with travel documents to facilitate his re-entry into Kenya or in the alternative have him travel back to Kenya on his Canadian passport and; that Miguna would determine the date of his return, notify the state and have his re-entry to Kenya facilitated by the relevant agencies with the Kenya National Commission on Human Rights allowed to observe the process to ensure compliance with the court order. It is this court order that has seen the Executive and its agents engage in deplorable acts over the last three days.
- In line with the court order, Miguna indicated that he would return to Kenya on March 26, 2018 and did exactly that only to have his re-entry blocked by immigration officials as well the National Police Service. In a bizarre turn of events, the Directorate of Immigration attempted to have him apply for Kenyan citizenship in total disregard of the court order. This was quickly followed by acts of harassment, intimidation and assault aimed at Miguna’s legal team, the journalists covering the story as a matter of public interest and the KNCHR representative observing Miguna’s re-entry into the country. In the midst of this unfolding ordeal, yet another court order was issued instructing that Miguna be produced in court and yet again rather than comply with the order, the Directorate of Immigration and the National Police Service conspired to have Miguna ejected from the country and forcibly put on a flight to Dubai where he is currently recuperating from injuries sustained in the ordeal.
- In this final instance, the Cabinet Secretary for Interior, the Inspector General of Police and the Principal Secretary for Interior have been held by the High Court to be in contempt and each fined Kenya Shillings 200,000 to be deducted from their next month’s salary. Given the gravity of the violations witnessed in this case, we consider such a reprimand to be far from appropriate and will do little to stop the assault on judicial authority. The Judiciary must appreciate that what they are confronting is impunity on a scale that is bound to upend the rule of law as it becomes increasingly clear that the Executive can elect which court orders to uphold and which ones to disregard as though they are above the Constitution and operate by their own set of rules.
- It is time for the Judiciary to reflect and make a firm stand for the rule of law. Judicial Authority cannot be seen to be futile and therefore the courts must not entertain state actors who disregard their orders in one instance and expect relief from the courts in other instances. We would advise the Chief Justice to lead the Judiciary in developing and implementing a position that courts will now refuse to grant audience to the State Law office, the office of Director of Public Prosecutions and the National Police Service until such a time that they display their willingness to comply with court orders as a matter of fidelity to the Constitution. The Law Society of Kenya must recommit to its previous stand of withdrawing from court appearances until such a time that the Executive returns to compliance with court orders. Additionally, all State officers take an oath to uphold the Constitution and we shall therefore explore options to have all errant officers associated with the Miguna case ejected from office as a matter of high priority.
- Upholding the Constitution is never a matter of convenience but is one of duty and obligation for all Kenyans. Judicial Authority is at the epicenter of our constitutional order and we must do all in our power to defend it.
Kenya Human Rights Commission