I will bring Miguna home, says former Chief Justice
In what could be a controversial move, former Chief Justice Dr Willy Mutunga yesterday vowed to travel to Toronto, Canada, to accompany exiled lawyer Miguna Miguna on his flight back home on 16 November.
“After careful reflection and following broad consultations with lawyers, human rights and justice defenders, progressive politicians and Miguna himself, I have decided to take this action over gross injustices, impunity and subversion of the Constitution and the rule of law,” Mutunga wrote in a statement.
His bold move by Mutunga, which he insists is meant to make the Kenyan authorities to respect court orders, is likely to put him on a collision course with the State.
“I have taken this extraordinary step first because of the continued, flagrant and reprehensible defiance of the Government, its agencies and senior officials, against numerous valid court orders in favour of Miguna.
I have also decided to undertake this journey to support and defend the independence of our Judiciary, its authority and the people’s confidence in it,” he wrote.
Reiterating that Miguna was illegally abducted from his house in Nairobi on 2 February 2018, detained incommunicado and tortured for six days, the former CJ says Justice Luka Kimaru ordered that Miguna’s Kenyan passport be deposited with the High Court in the State in which it was seized.
“However, rather than comply, the government defaced and destroyed the passport before delivering it to the court. That was an egregious affront to the rule of law,” says Mutunga.
He adds that Miguna’s house was unlawfully destroyed with detonators. In defiance of habeas corpus orders issued by Justices James Wakiaga and Kimaru directing that Miguna be released immediately and taken to court, the government illegally seized his valid Kenyan passport and forced him into exile in Canada.
Justice Chacha Mwita then issued an order on February 26, 2018 directing, among other things, that the government and senior officials named in the Constitutional Petition Number 51 of 2018 Miguna’s return to Kenya, grant him unconditional entry at the time of his choosing.
Court also suspended the declarations and decisions of Interior Cabinet Secretary Dr Fred Matiang’i and Director of Immigration, Major (rtd) Gordon Kihalangwa that had purported to invalidate Miguna’s citizenship and justify his forced exile.
“When Miguna flew back to the country on March 26, 2018, not only did the Government block his entry, but senior State 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 March,” Mutunga stated,
He observed that once again, the government did this in open defiance of multiple court orders by the Justice Roselyne Aburili and the Justice George Odunga.
“In a further display of disregard for the rule of law, the illegal removal to 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 Miguna unconditionally and desist from removing him from Kenya,” Mutunga said.
Mutunga says these illegal actions by the government prompted Justice Odunga to take the unprecedented step of convicting several senior Government officials, among them CS Matiang’i, Major Kihalangwa, former Inspector 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 JKIA and the Attorney General for contempt of court on March 29.
Each of the officers was fined Sh200,000, which was to be deducted directly from their April 2018 salaries and that to date, none of the contemporaries has purged their contempt.
They, therefore, continue to undermine the rule of law and violate the oath of office they took as State officers.
Court quashed all the decisions and actions the government had taken against Miguna and directed that the state returns his valid Kenyan passport and any other identification documents taken from him, and facilitate his unconditional return to Kenya.
Not only has the government and senior officials defied Justice Mwita’s orders and refused to facilitate Miguna’s return to Kenya, but when he (Miguna) attempted to return to his motherland on January 6, 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’s “red alerts” against 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.