Kenya's Judiciary on the spot over deportation

Kenya’s Supreme Court in session during the 2017 presidential petition. The Kenyan judiciary is under pressure to show its independence. PHOTO | AFP 

In Summary

• Second deportation of lawyer Miguna Miguna has put the Judiciary and opposition leader, Raila Odinga on the spot.
• Judiciary is under pressure to show its independence and demonstrate that it is not an appendage to the executive.
• Top government officers have now disregarded six court orders from two judges.

By FRED OLUOCH
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The Kenya government’s second deportation of lawyer Miguna Miguna has put the judiciary and
opposition leader, Raila Odinga in a spot.

While the Judiciary is under pressure to show its independence and demonstrate that it is not an appendage to the executive, Mr Odinga is hard-pressed to justify his recent unity pact with President Uhuru Kenyatta.

Mr Miguna, the self proclaimed general of the proscribed National Resistance Movement, came afoul with the authorities following his role in the swearing in of Mr Odinga as the “Peoples President” in January.

Mr Miguna was deported to Dubai on March 28 after being held for two days at Jomo Kenyatta International Airport a court order that required Interior Cabinet Secretary Fred Matiang’i, Inspector General of Police Joseph Boinnet and Immigration PS Gordon Kihalangwa to appear in court together with Mr MIguna was ignored.

This is the second time Mr Miguna has been deported, having been spirited to Canada in February.

Court orders

Top government officers have now disregarded six court orders from two judges.

“The executive has tested the courts and realised that they can get away with disobeying court orders without consequences,” said Apollo Mboya, a former chief executive of the Law Society of Kenya.

But Justice George Odunga fined the three $2,000 each, which Mr Mboya says is a good beginning because now they are convicts and any Kenyan can go to court, and seek orders for the three to be declared unfit to hold public office.

“The trend of disobeying court is worrying to lawyers because it could reach a stage where all the court orders we obtain are ignored. It is time the courts go custodial sentence to send a warning to the executive,” said Mr Mboya.

He said that it is upon the judges whose orders are disobeyed to use various options such as denying audience in all matters involving the executive.

Another Nairobi lawyer, Steve Ogolla, said the second deportation of Mr Miguna — who holds Canadian citizenship — has opened confrontation pitting the judiciary against the executive.

Independence

But Chief Justice David Maraga, while admitting new advocates to the bar, maintained that judges and magistrates were no longer at the mercy of politicians and the executive. 

Musalia Mudavadi, one of the opposition National Super Alliance (Nasa) principals, said that fidelity to the law is not an option and the issue of Mr Miguna is beyond the plight of one individual, but matters of contempt of court as well as abuse of human rights.

“It is a fact, for example, that there are many Kenyan citizens who held foreign nationalities before the 2010 Constitution. How is the Kenyan State regularising their dual citizenship?” Asked Mr Mudavadi.

But on the political front, Odinga is feeling the heat, with many of his supporters, questioning the viability of the unity deal with President Kenyatta.