January 14, 2019
It is not too early to pass judgment that the Kenyan Judiciary along with the South African judiciary are the leading judicial lights in Africa in terms of exercising judicial autonomy and independence. This article deals with the very important decision by the Kenyan High Court on December 14, 2018 in relation to an opposition politician which demonstrates the significant advances in the calibre and independence of the Kenyan judiciary, a decision which is not conceivable anywhere else in Africa except South Africa.
The decision relates to one lawyer Miguna Miguna who was forcibly deported twice back to Canada by the Kenyan government on account that he was not a Kenyan citizen as he had allegedly lost his citizenship when the constitution was amended in 2010. In early 2018, the Kenyan government disobeyed all types of judicial orders to release Miguna who had been detained. They put him back in the plane twice and deported him.
Miguna started the long distance legal struggle from Canada to overturn government decisions and to make the government pay for the monumental human rights violations inflicted on him. He hired Kenyan lawyers who laboured without pay for their colleague. At long last, on December 14, the decision was handed down: the High Court judge Justice Mwitwa ruled that Miguna never lost his Kenyan citizenship which he had acquired by birth and that the government had committed egregious acts by revoking his passport and had further indulged in torturous violations of his human rights. They must immediately reinstate his passport and allow him back into Kenya.
On top of this, the High Court ruled that the taxpayers must not be saddled with paying the damages and costs awarded to Miguna, the damages and costs must be borne out personally by the individual officers involved: the Attorney General, the Immigration Chief, the relevant Police Inspector General and several other named officers. US$70,000. And costs. This is huge in Africa. This is revolutionary. Such orders are rare. The last recent one in Africa was when the South African High Court ordered that Zuma must pay for the costs of all legal actions that he was involved in while he was President but for crimes he had committed as an individual.
Governments have had the luxury of violating people’s rights and when and if orders were issued against governments to pay, the government’s either didn’t pay or paid because it was taxpayers money and the faceless individuals who violated someone’s rights didn’t feel the impact. If the government didn’t pay, it is difficult to determine whom to actually pursue. Governments acted with impunity. A government is faceless.