Dr. Miguna’s Right to go to Kenya is back on the Front pages: Thanks to ex-CJ Dr. Willy Mutunga

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This is how we tackled the terrible abuse of the rights and freedoms of our good friend Miguna Miguna in 2018 just after the police and the state attacked Miguna at his home in Nairobi.

I stand with my views and concerns then as I do now.

I have known and worked with Miguna for many years from 1989 when we were both new in Canada as refugees and human rights activists from Kenya to 2006 when Miguna went back home to work with Raila Odinga in the 2007 General Elections between ODM led by Raila and Kibaki’s PNU.

So DC and myself were alarmed and concerned about the viciousness of the Uhuru government in 2018 in attacking Miguna after the controversial General Elections in December 2017, which were declared null and void in a Supreme Court Ruling in Kenya.

The harassment on Miguna troubled us and we expressed our concerns in this forum and that is where we start today.

Just this week Dr. Willy Mutunga put together a very comprehensive analysis of the Miguna legal situation and the inherent abuse of human rights and constitutional order on the matter where court rulings have been ignored with maximum contempt and impunity by our government.

Dr. Mutunga has promised to travel to Canada and accompany Miguna back to the country on November 16, 2021 with the hope that our state authorities would cease abusing court rulings and let Miguna come to his country of birth in peace. That should not be such a big deal.

Right?

May be not in our country. We will find out soon. Enough.

Here is Dr. Mutunga’s piece on “The Elephant” a progressive website that is actually linked to us here in DC.

Here is the piece.

We are going to look into the various aspects of this important issue but my fear is that with our new twitter politics and activism, we could end with the usual simplistic and unrealistic “solutions”

The status quo folks who think they know everything are going to tell Dr. Mutunga and others to just go to JKIA wait for Miguna to arrive and buy a visa for him which costs $ 50.00 and save themselves the headache of spending thousands of dollars to go and bring Miguna from Canada.

That is how it works for anybody coming to Kenya with a foreign passport and it doesn’t matter what your name is.

Others like Dr. Mutunga who has made a very principled step and initiative including others like Nelson Havi from the Law Society of Kenya (LSK) are going to say ”lets get a hundred people to Toronto, Canada and bring Miguna home where he belongs and has every right to be.”

Is that going to work? I don’t know, but political battles are long journeys with endless twists and turns. We all know that. Fair enough.

First, let’s look at the critical and substantive issues raised by Dr. Mutunga in his analysis of the Miguna battle against state aggression.

As you may recall, Mr. Miguna was illegally abducted from his house in Nairobi on 2 February 2018, detained incommunicado, and tortured for six days. Mr. Miguna’s house was unlawfully destroyed with detonators.

In defiance of habeas corpus orders issued by the Honourable Justice Wakiaga and the Honourable Justice Luka Kimaru directing that Mr. Miguna be released immediately and taken to court, the Government of Kenya illegally seized his valid Kenyan passport and forced him into exile in Canada.

On 15 February 2018, Justice Kimaru ordered that Mr. Miguna’s Kenyan passport be deposited with the High Court in the state in which it was seized. However, rather than comply, the Government of Kenya defaced and destroyed the passport before delivering it to the court. That was an egregious affront to the rule of law.

The Honourable Justice Chacha Mwita then issued an order on 26th February 2018 directing, among other things, that the Government of Kenya and its senior officials named in the Constitutional Petition Number 51 of 2018 facilitate Mr. Miguna’s return to Kenya and grant him unconditional entry at the time of his choosing.

The Court also suspended the declarations and decisions of Interior and National Coordination Cabinet Secretary Dr. Fred Matiang’i, and Director of Immigration, Major (Rtd.) Gordon Kihalangwa, that had purported to invalidate Mr. Miguna’s citizenship and justify his forced exile.

However, when Mr. Miguna flew back to the country on 26th March 2018, not only did the Government of Kenya block his entry, but senior government officials also imposed unlawful conditions on him in contempt of Justice Mwita’s orders, physically assaulting him, detaining him for three days in a filthy toilet at the Jomo Kenyatta International Airport, before sedating him and illegally removing him from the jurisdiction of the Kenyan courts to Dubai in the United Arab Emirates (UAE), on 28th March, 2018.

Once again, the Government of Kenya did this in open defiance of multiple court orders by the Honourable Justice Roselyne Aburili and the Honourable Justice George Odunga.

In a further display of disregard for the rule of law, the illegal removal to the UAE took place on the same day that Justice Odunga issued the order that the Government of Kenya and all its departments and officials release Mr. Miguna unconditionally, desist from removing him from Kenya.

These illegal actions by the government prompted Justice Odunga to take the unprecedented step of convicting several senior government officials, among them Dr. Matiang’i, Major Kihalangwa, Director General of Police, Joseph Boinett, Director of Criminal Investigations, George Kinoti, Officer-in-Charge of the Flying Squad, Said Kiprotich, Officer Commanding Police Station at the Jomo Kenyatta International Airport, and the Attorney General for contempt of court on 29 March.

Each of the contemnors was fined KSh200,000, which was to be deducted directly from their April 2018 salaries. To date, none of the contemnors has purged their contempt.

They, therefore, continue to undermine the rule of law and violate the oath of office they took as state officers. On 14 December 2018, Justice Mwita issued his judgment in favor of Mr. Miguna and indicted the Government of Kenya and its senior officials for violating his constitutional and human rights.

This was following a hearing of the Constitutional Petition number 51 of 2018. Significantly, Justice Mwita held that Mr. Miguna is a Kenyan-born citizen who has never lost his Kenyan citizenship.

The court nullified the cancellation of Mr. Miguna’s citizenship and passport and declared that his arrest, detention, torture, and removal from Kenya were illegal, unconstitutional, and a gross violation of his rights. Justice Mwita awarded Mr. Miguna KSh7 Million in damages and KSh270,000 for the destruction of his house.

He also held that Dr. Matiang’i, Major Kihalangwa, Mr. Boinett, Mr. Kinoti, the Officer Commanding Police Station at the Jomo Kenyatta International Airport, Said Kiprotich, and Githu Muigai were not fit to hold public office.

Justice Mwita’s orders were against the Government of Kenya and each one of the named government officials.

The Court quashed all the decisions and actions the Government of Kenya had taken against Mr. Miguna and directed that the state return Mr. Miguna’s valid Kenyan passport and any other identification documents taken from him, and facilitate his unconditional return to Kenya.

Not only has the Government of Kenya and its senior officials defied Justice Mwita’s orders and refused to facilitate Mr. Miguna’s return to Kenya, but when Mr. Miguna attempted to return to his motherland on 6th January 2020 at his own expense, the Government of Kenya issued “red alerts” to all commercial airlines, effectively barring him from flying into Kenya.

The Government of Kenya’s “red alerts” against Mr. Miguna were issued illegally and in violation of not just his rights but also of international humanitarian and aviation laws.

The issuance of “red alerts” in order to frustrate valid court orders is not only a blatant disregard for the rule of law but a descent into autocracy.

On 6th January 2020, the Honourable Justice Weldon Korir issued orders directing that Mr. Miguna be free to enter and leave Kenya at any time of his choosing using either his national identity card or his Kenyan Passport in the state in which it was submitted to the High Court by the Government of Kenya.

Miguna Miguna’s Cry for Justice

It is now 1,355 days – 3 years, 8 months, and 21 days – since Mr. Miguna was illegally and brutally forced into exile by the Government of Kenya.

None of the court orders referred to above have been obeyed or complied with by the state or its agents and officials.

I urge all Kenyans to demand that the government comply fully with the orders, including the prompt payment of all awards, costs, and accruing interest. Justice demands no less.

The repugnant subversion of the rule of law by the Government of Kenya, in this case, is tantamount to the overthrow of the 2010 Constitution and an egregious act of impunity by a government that has a duty to uphold, comply with and enforce laws and court orders.

To blatantly defy them, not once, not twice, but multiple times, sets a dangerous precedent that we all must stand up against. Court orders are not suggestions. They are not requests.

They cannot be disregarded without consequence. As eminent jurists have noted elsewhere, democracy, the rule of law, and the foundational values of our constitution require that the dignity and authority of the courts be upheld by everyone at all times.

The issues raised by Dr. Mutunga are undeniable facts and have not been disputed or even defended by our government and they can never be acceptable to Kenyans.

Those issues have to be addressed and if Dr. Mutunga’s initiative leads to that very necessary discussion and resolution of this matter it is better for our country and the Kenyan citizens.

That is the issue on the table that needs to be addressed forthwith.

But are there other things we have to look at and sort out rather immediately?

Yes indeed and my purpose of posting this angle of our reality today as Kenyans is to look at everything that needs to be done for the good of our country.

We will never tire of that and that is where I hope we go with this very important issue in our country.

On dual citizenship, in our country, we have the worst system possible.

As a Kenyan living in Canada, if I obtained Canadian Citizenship before we introduced dual citizenships laws in Kenya, I would have a whole bunch of problems.

First, my family owns land in Kenya. That land is family property handed to us by our parents.

In my family, it is my four sisters, me, and all of us.

If I obtained Canadian citizenship because I was already a permanent resident in Canada then I would have to forfeit any claims of land ownership in my country of birth where I actually own land with my family.

Never mind that we are talking about my home country where land grabbers from all over the world, starting with the British Colonialists and their many inheritors who run our country today have grabbed and owned millions of acres of any land in Kenya and its rivers, forests and water resources.

The other crazy aspect of our dual citizenship law is that once you become a citizen of another country like Canada you have to go to the Kenya Immigration offices to somehow renew your Kenyan citizenship otherwise it can be taken away. This is completely unnecessary and just causes endless hardships for Kenyans who become citizens of other countries.

That regressive policy towards Kenyans is unheard of in any other country. Here in Canada, the citizens have dual and triple citizenships and the Canadian government has no interest in that. There is no paperwork for that. Why was this demand included in our dual citizenship laws other than just to punish people?

Then, children of Kenyan citizens born outside Kenya who are citizens of their countries of birth, have serious complications becoming Kenyan citizens. At some point it was stated that only children of Kenyan men born outside can become Kenyan citizens and not children of Kenyan women.

I don’t know if that has been cleared up because it is just good old Kenyan sexism where Kenyan women are not supposed to be trusted to have children outside the country because they will have a million children with strangers everywhere and bring them to Kenya. This is an insult to Kenyan women.

My son has an Eritrean mother and as soon as he was born in Canada in 1997 he automatically became an Eritrean citizen and was provided with an Eritrean passport. Eritrea by the way became an independent country in 1991 when Kenya was already a 41-year-old independent country.

So our whole dual citizenship laws established in the 2010 constitution are riddled with all sorts of unjust and unfair policies and procedures that should be discarded so that Kenyan citizens all over the world can join the 21st century of global citizenship with all its economic and cultural benefits to all of us.

I am not going to say a word about the falsehood that the 2010 constitution guaranteed Kenyan citizens living outside the country the right to vote in our General Elections.

That is another fiction in that constitution which those in power have decided to treat with complete contempt with no consequences whatsoever.

How else do you treat fictitious laws of convenience? You dump them.

But on the issues of Kenyan citizens living out of the country has not just the rights but also practical mechanisms to vote in General Elections of Kenya we just can’t continue to ignore it.

We have millions of Kenyans living all over the world and contributing massively to the Kenyan economy and sending more than half our payback to the country every day and we have no say on how our country is run and mismanaged by a small clique of power barons, many of whom have been in government for 30 plus years.

All these abuses of our constitution are okay and protected by our political leadership.

That grabbed land is still sacred because the 2010 so-called reformist constitution has failed miserably to concretely address even the most rudimentary aspects and provisions of land reforms and justice in ownership to all Kenyans.

Every Kenyan was very happy that the 2010 Constitution introduced judicial remedial mechanisms and practical means to address land grabbing from 1896, when colonialists came to our country and later after 1920 gave themselves 99 years lease on every piece of productive land for coffee, tea, dairy, and all forms of farming.

The 2010 Constitution established the National Land Commission (NLC) with the express objective of resolving the 99 years lease stranglehold our Kenya’s most productive lands and the more than 50-year-old land grabbing by Kenyan political leaders and their cartels.

Nobody wanted or expected any rural agrarian revolution in Kenya or anything like that (even though I must confess that is where we may end up as a country)

That is another story.

But we know that in our country today and for the last ten years the National Land Commission (NLC) has completely failed to do anything. It is like the 2010 constitution itself made the NLC useless.

And this is supposed to be a gospel constitution for our country. It is our new Bible that cannot even be amended because of a new invention called the Basic Structure of the constitution. Even the Bible has been amended from time to time that is why we have so many versions.

But for us poor Kenyans, God gave us the unamendable 2010 Constitution.

Surely, God can’t be that cruel to Kenyans. What did we do to this God to deserve this?

Is this really the Katiba so many Kenyans gave up their lives fighting for.

In my view, it is not and some of those comrades must be turning furiously in their unmarked graves when they see us celebrating this oxymoron constitution of 2010.

The nation is going to reject the tyranny of this practically useless 2010 Constitution of Kenya which was coined together not by the mass uprisings from the student movements for democracy in the 1970s and 1980s into the 1992 Saba Saba national rebellion against one-party dictatorship, to BOMAS National Resolutions in 2003 championed by Kenyans from across the country.

The BOMAS Draft Constitution agreed upon by delegate votes was skinned bare in Naivasha.

I was at the BOMAS Final Conference in Nairobi and the voting process was very intense.

The BOMAS process came up with a final resolution on Kenya’s executive authority that has a President and a Prime Minister.

That became the sticking point

Then the Kibaki establishment Draft Katiba of 2005 flopped when the opposition got 57% of the vote in a national referendum.

Then the political elites cooked up a new sausage, chicken gravy, and rice mix that Kibaki, Raila, and the then governing brokers agreed on.

That is how we got the 2010 Kenyan Constitution and it is serving its purposes very well.

Good for them.

Land thieves in Kenya today are safe, particularly the big ones because the 2010 constitution on land reforms has been a complete failure as it was intended to be by the owners of our land and our country.

Is anybody talking about this in our national human rights movement actions and battles today with regards to our revered 2010 Constitution which is supposed to provide protection to the basic rights of Kenyans including their rights to own and have title deeds for their land?

That is one of the most basic rights of all in any country.

The other dead institution in Kenya today is the EACC which was supposed to liberate our country from the Corruption Virus.

What happened and how

How did we kill that really hopeful Kenyan baby in our 2010 Constitution?

How did we legalize corruption so easily in the 2010 Kenyan constitution?

Kenyans of all walks of life including our human rights groups active in the country need to raise these rampant concerns with our 2010 constitution. And I have not even touched the surface.

We have zero accountability for the use of our tax money and those endless loans.

The Constituency Development Fund (CDF) established decades ago and enshrined in the 2010 constitution is practically pocket money for our Members of Parliament.

They spend it on themselves and set up all sorts of construction companies to just grab the money. And now some politicians want to double that pocket money for our M.Ps in the name of community development. That is a cruel joke coming next to you.

We established Devolution with fanfare and great hopes. That whole County Budget is never accounted for and a good chunk of that money is spent by our governors and their MCAs visiting Dubai and elsewhere for shopping.

Oh, so much development. In Dubai. Lucky we. If we lived there.

And we have a senate which is the deadest institution we have ever created. The Senate is supposed to supervise and protect the County Governments and make sure the county budget is used to develop the counties.

Instead, every senator’s job is to protect that theft of county money by their political allies who run the counties.

Can we change the Senate Structure or even abolish it altogether as a useless institution. No, we can’t do that because then we would be disturbing the Basic Structure of our beloved 2010 Constitution.

That is how sickening our 2010 constitution is. Kenyans will change it, hopefully not with arms but with open minds. Soon come. Of that we know because of the evidence of our history as a people. Who knew Kenya would defeat British Colonialism. Kenyans did.

Our Kenyan 2010 Constitution is great. Very good. But it is great on “GOOD INTENTIONS”

With no teeth to realize those good intentions.

That is how a waste of time can look good.

Fine.

But we all know from experience that the road to hell is littered with “GOOD INTENTIONS”.

But we all know from experience that the road to hell is littered with “GOOD INTENTIONS”

We have Chapter Six of the 2010 Constitution the most appropriately celebrated piece of our new constitution for human rights activists and government by state thieves and terrorists.

Chapter Six of 2010 declares known thieves and criminals cannot hold public office in Kenya.

Right now, who else is holding the biggest public offices in Kenya?

I don’t want to ask that question but maybe we should as a country.

But we cannot implement the glorified Chapter Six of our present constitution.

We have a wonderful 2010 constitution of good intentions and with every mechanism to defeat those “very good” intentions.

That is where we are today.

I have no idea where we will be tomorrow.

We will keep moving.

It has always been good for us. As Kenyans, we have never achieved any freedoms for our country and people without working and sacrificing for it.

That is our DNA as a nation of people that fights for their freedoms and liberties nonstop.

Adongo Ogony is a human rights activist who lives and works in Toronto

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