Kenyans were treated to a painful sequel in the citizenship case of Dr. Miguna Miguna this week. The incident exposes real risks to citizenship rights, freedom of expression and the relationship between the Executive, the Judiciary and us. More encouragingly, the public backlash to the way he has been treated again, demonstrates the maturing of a democratic nation that remains ahead of the State on this issue.
The repeated announcement by the Presidency, Immigration Director General and Government Spokesperson that the Government would comply with the orders of the Court was well received. With at least seven previously flouted court orders, these statements reflected the Building Bridges Initiative spirit. The open hand of national reconciliation would also be extended to one of Jubilee’s greatest dissenters.
Very tragically, that moment evaporated in a matter of hours. Listening independently to the arguments between the Government and Miguna, it seems that only one aspect needs addressing. Both Lufthanza and then Air France airlines have publicly corroborated Miguna’s assertion that the Kenyan authorities instructed them not to allow him to fly to Nairobi. If the January 6 statement by Immigration Director General is the Government position on this, which other authority is there?
More significantly, in the light of this latest episode, how secure are our rights to citizenship, free expression and independent state? Has the Government really internalised the key lesson from 2017? By subverting our laws and public offices to deal with unpleasant statements, dissent and populist politicians you harm the very essence of our nation.
If there was one clear vision we asserted in 2010, it was our desire to break free from the colonial and neo-colonial experience of inequality and impunity. We wanted all people to be treated equally under the rule of law. We wanted the State to be built on the principle that the Executive, Judiciary and Parliament were separate and independently powerful arms of Government. By achieving these two, we would build a society that left all free, dignified and safe and a state that was accountable and responsive.
The right to citizenship and free speech are enshrined in Articles 14 and 32 of our constitution. Regardless whether individuals threaten public order or national security, they must be managed within our constitution and laws. As the BBI report noted, whenever state officers or citizens violate our laws or refuse to obey court orders, they breed lawlessness and plunge us into anarchy. This includes State Officers switching off media stations, not compensating survivors of state torture or failing to arrest powerful politicians for abusing their offices. This also includes defendants bribing Judges and court officials or landlords smearing faeces on their building to frustrate court decisions in favour of tenants. Like petrol to a car, the rule of law and justice is fundamental to a democratic society.
It is also critical for trade, investment and tourism. Every year, the Kenyan diaspora invests Ksh 300 billion in remittances. In the last three months, Ghana very cleverly attracted one million more tourists, doubled their spending, earned the country US$ one billion and became CNN’s fourth best destination through their Year of Return initiative for the African diaspora. What message is the Miguna incident sending to our dual nationals and foreign investors? Nobody wants to visit or invest in a country that abuses the rule of law.
Before I fuel Kenyan pessimism, let me point out that we are not a failed state. We are also not unique from the rest of the world on this issue. Every year, five layers of courts adjudicate roughly 400,000 cases. These court orders are broadly respected and affect the lives of citizens and behaviour of businesses and state agencies.
It is useful to remember that respect for courts and the rule of law is being currently contested in US, Brazil, South Africa and Israel. In one of the more glaring recent examples, Israeli Prime Minister Benjamin Netanyahu has declared his intention to seek immunity from Parliament to escape indictment for accepting bribes, fraud and breach of trust.
Kenya must provide leadership here. We must bury the colonial idea that some are above the law or that with power and influence, some of us can ignore court orders. The Miguna issue is not being stewarded well and needs a change of approach. Senate plans to introduce a blanket bill to shield sitting Governors from criminal and civil proceedings is also a step in the wrong direction and an existential threat to Chapter Six. Citizens must speak up on this as well.
First published Saturday Standard, January 11, 2020. Kindly reproduced here with permission from the Standard Group