His plight will go down in history as a clear indication that fidelity to the rule of law in Kenya is still a mirage. The Executive remains contemptuous of the Constitution of Kenya, the rule of law, and human rights.
During Dr Miguna’s much publicised arrest, detention, deportation and refusal to allow him to enter Kenya in 2018, several court orders were disregarded by the Immigration Department, the National Police Service and the Interior Ministry. In fact, the Inspector General of Police, Head of Immigration and Interior CS were convicted of contempt of court and fined Sh200,000 each.
Ironically, item 11 of the Building Bridges Initiative (BBI) report highlighted Kenyans' disrespect of the law at all levels, especially public officers who refuse to implement laws or to properly discharge duties placed on them by law or disobey court orders. It proposed that they should be appropriately punished.
The report noted that “disrespect for the law makes for a Kenya that largely has the correct legislation and policies but seems unable to implement them, leading to a widespread cynicism, which itself feeds and spreads impunity.”
This begs the question; is the government serious about the BBI if it cannot honour direct recommendations that can be implemented without changing the law?
Obeying court orders
Miguna treatment yet again clearly demonstrates that we have not yet turned the corner with regards to the rule of law and obeying court orders.
Sadly, the fact that earlier positive government statements on Miguna’s return were prompted by President Uhuru Kenyatta's speech last month, in which he stated that the lawyer was free to return buttresses the misconceived idea that his return relies upon the wishes of an individual in leadership rather than a legal process.
The court order instructing the Immigration Department to facilitate the entry of Miguna should have set the matter to rest. If the executive was uncomfortable or dissatisfied with the order, its only option was to appeal to a higher court.
Judiciaries the world over have no army or police officers to enforce their decisions. They rely on fidelity to the law by the police and the Executive for enforcement.
Ignoring court orders only serves to embolden individuals, businesses, public officers and public offices to disregard the law - thereby leading to injustice, human rights violations, impunity, corruption and a breakdown to the rule of law in the long run.
What sets apart first world countries from other countries such as Kenya is their fidelity to the rule of law. The rule of law attracts investments and economic growth because no person is willing to invest or do business in a country where disputes are not adjudicated in a fair way through fair judicial processes and decisions that emanate from the processes are not honoured.
Freedom of expression
Many see Miguna's opinions as the reason he is not being allowed to enter Kenya by the powers that be. However, Kenya, under the Constitution 2010, is an open and democratic society that enshrines every person's freedom of expression - which includes the right of every person to seek, receive and impart information and ideas.
Kenyans and our political leadership must grasp that freedom of expression includes the right to say things that shock, offend or disturb. This does not mean that one should be able to say anything and everything. Our constitution is unique, in that it self-limits by prescribing what is not protected under free speech.
For democracy to thrive, we should be keen to protect the space in which unpleasant, unpopular and offensive ideas and views can be freely shared and canvassed. We must all protect the speech that we most disagree with or else freedom of expression turns into a mere popularity contest with little meaning.
Miguna, being a Kenyan, should be allowed back to his country because it is the right thing to do and most importantly, because the courts have said so.
Mr Kiprono is constitutional and human rights lawyer. [email protected]
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