It’s been quite a saga, with a good deal of misunderstanding, misrepresentation and downright lies floating around.

I come neither to bury Miguna Miguna nor to praise him, but to try to explain the legal issues.

CITIZENSHIP

This issue will probably be ruled on by a Kenyan court. Nothing I say here is going to affect the way the judges decide the case. And everything I say (and more) will be presented to the court by the lawyers on one side or the other.

It is my opinion that he is not a Kenyan citizen. Of course, if an appellate Kenyan court decides otherwise, I shall have been proved wrong, as will several other commentators.

Before August 27, 2010, we had another constitution that said clearly, in Section 97(3)(a), that “A citizen of Kenya shall …cease to be such a citizen if, having attained the age of twenty-one years, he acquires the citizenship of some country other than Kenya by voluntary act”. It could hardly be clearer. (The dots reflect merely a reference to a once-existing and irrelevant sub-section of the old Constitution about extending time limits.)

There are conflicting previous court decisions. In one, the facts were different, but Justice Isaac Lenaola was clear that the old Constitution did not allow a person to hold citizenship of both Kenya and another state (except while they were under age, but having reached 21 they had to give up the other citizenship or automatically lose their Kenyan citizenship). In another Justice Luka Kimaru asserted that Section 97(3) applies only to citizens other than those by birth. He referred to certain other sections, without explaining how they justify his conclusion — which would create discrimination between citizens for no clear reason. Under the rules about judicial precedents, no High Court is obliged to follow any previous decision of a High Court.

But what about Article 16 of the new Constitution, made much of by Miguna: “A citizen by birth does not lose citizenship by acquiring the citizenship of another country”? When the new Constitution became law, Miguna was not a citizen (by birth or any other way). Another quotation: “Every person who was a citizen immediately before the effective date retains the same citizenship status as of that date”. The ‘effective date’ was August 27, 2010; then Miguna was a Canadian and not a Kenyan citizen.

It is clear the new constitution makers had no intention to make everyone who had lost Kenyan citizenship under the old Constitution automatically a Kenyan again. Those people were given a choice: They could apply to get their citizenship back.

Despite what Sarah Elderkin wrote in the Star last weekend, this is all matter of Kenyan law, and nothing to do with international law.

SO WAS GOVERNMENT IN THE RIGHT?

Absolutely not, other than that immigration officials maybe faced a bit of a dilemma: When Miguna came back, authorities were supposed to take him to court. But — if their story is right — he refused to do either of the things that would have got him into the country legally: Get a visa in his Canadian passport or apply to become Kenyan again. They could have said to Miguna “If you won’t take a visa or apply to get your citizenship back, we have no choice but to arrest you and take you to court in our custody tomorrow.  We can’t let you go wandering around as a foreigner”.

If he objected, as he presumably would have done, they could have gone back to court and explained their problem.

In reality, had they not been so determined to ignore the courts, they could have given him a Kenyan passport, and allowed him into the country in order that his legal position could be resolved, and the court’s order about his being produced in court was complied with. Indeed, if they had obeyed the initial court orders, his previous Kenyan passport would have been handed to a Kenyan court — and not punched with holes to indicate it was no longer valid. It is not uncommon for people whose nationality status is unclear to be at liberty within the country. Miguna was hardly going to go underground if allowed into the country.

Government spokespersons have said extraordinary things. One is about how Miguna was not in Kenya because he was on the other side of immigration. So airside in an airport is some sort of law-free zone where people could steal and commit all sorts of crimes but the writ of the Kenyan courts (and police etc) does not run? What arrant nonsense!

Just to take a simple example, the British government is currently considering introducing law to limit the sale of alcohol for consumption in airport departure lounges; there is no legal obstacle to this. Miguna is not the first person to have been alleged to be in some transit lounge legal limbo. The Russian government tried it in the case of Edward Snowden (who had leaked many US security agency documents), giving themselves excuse for not extraditing him to the US — an excuse as threadbare as the Kenyan authorities’ own about Miguna.

Another assertion was that it is illegal to leave one country using one passport and use another to enter one’s country of destination. More nonsense. If this were true, dual citizenship would be useless. Naturally, everyone who enters or leaves any country of their citizenship uses that country’s passport. A journey between countries of both of which the person is a citizen involves both passports.

IT’S NOT JUST ABOUT MIGUNA

The government violated the Constitution and the Persons Deprived of Liberty Act about rights of people detained to communicate privately with their lawyer and to decent conditions of detention. The Act is also clear about the right of non-citizens to consular assistance, yet Canadian officials were prevented from seeing Miguna.

How often does Kenya deport people? Do they usually keep them in ‘disabled toilets’? What a disgrace if so.

They originally arrested Miguna on Friday February 2 for something he was alleged to have done on Tuesday January 30. Have you noticed how often the police arrest people on Fridays? The Constitution says that a person arrested must be produced in court within 24 hours — unless that is not a court working day, in which case they must be produced on the next working day. Friday arrests have a long and disreputable history in Kenya, going back to when a clique of “44^th tribe” law-related officers would arrest members of their own community — on Fridays — and use this as a way of extracting money.  Using “It’s Friday” as an excuse for detaining a person for several days is another example of disrespect for the rule of law, and of impunity.

EX PARTE ORDERS

There has been some criticism of ex parte orders: The courts giving orders in the absence of one side in the case. The courts should only do this when it is necessary to act quickly to avert some act that will be hard to undo (like deporting a person, or destroying property). In fact, in human rights cases, the Constitution specifically recognises that “conservatory orders” — keeping things as they are — may be made. It is an essential protection for rights. If orders could only be made when the other side is present, imagine how easily the other side (like the government in this case) could prevent it by staying away!

ATTACKING THE JUDGES

Perhaps the most depressing aspect of the whole affair has been government’s open hostility to the Judiciary, including a spokesperson gloating that “The Chief Justice had discovered he could not arrest the Inspector General”. It should never have come to this in the first place.  Is the message that the rest of us must obey the law, but some are exempt? If the people appointed to uphold the rule of law, including equality before the law, have no pride in doing so, a country is in a parlous state.

By JILL COTTRELL GHAI

The author writes in her personal capacity.