The controversy surrounding the deportation of opposition activist Miguna Miguna is the basis of a new cold war between the Executive and the Judiciary, with Interior Cabinet Secretary Fred Matiang’i saying there is a group of judges trapped in an unholy alliance with civil society groups and activist lawyers intent on embarrassing the government.
Dr Matiang’i told a parliamentary committee on Tuesday that his ministry has asked Attorney-General Kihara Kariuki to appeal his conviction by High Court Judge George Odunga last week for contempt of court for failing to produce Mr Miguna in court as ordered.
Also convicted were Immigration Principal Secretary Major-General (rtd) Gordon Kihalang’wa and Inspector-General of Police Joseph Boinnet.
“There is a clique in the Judiciary that has been captured by the civil society and activist lawyers who want to embarrass the government,” said Dr Matiang’i. “It is an evil clique of judicial officers who want to drag us by the collar through trial by the public court.”
The Judiciary refused to comment on the accusations on Tuesday. It has been on the receiving end of the Executive since last year and, other than one-off assurances by Chief Justice David Maraga that it will safeguard its independence — he has previously warned that the attacks have become “bolder, persistent and institutionalised” — it has not made a strong case against the accusations.
Last year, Jubilee Party, through its secretary-general Raphael Tuju, sent a letter to Mr Maraga complaining about the conduct of Mr Odunga. Mr Tuju wanted the High Court Judge to recuse himself from cases filed against the government or he be replaced from his current assignments.
And, on July 9, 2017, President Uhuru Kenyatta accused the Judiciary of working with the Opposition when the High Court ruled that the Independent Electoral and Boundaries Commission must re-advertise a tender for printing of presidential ballot papers. A day later, Deputy President William Ruto accused judges of working with the opposition to postpone elections.
On Tuesday, Dr Matiang’i told the Administration and National Security Committee of the National Assembly that his ministry will file petitions with the Law Society of Kenya against Mr Miguna’s lawyers for lying about the whereabouts of his Canadian passport, and with the Judicial Service Commission against judges for making a slew of orders “based on untruths”.
He said the judges had also refused to give the AG a chance to be heard in the High Court last week and ended up giving 11 orders against the Interior ministry ex-parte.
Of the judges singled out for working with the civil society, Dr Matiang’i only identified Justice Roselyn Aburili by name, but said they “are not more than five”. Justices Odunga, Luka Kimaru and Chaacha Mwita have handled the various cases involving Mr Miguna, and Justice Odunga is expected to report to his new station in Machakos today.
Justice Odunga convicted the CS, PS and IG for contempt and fined them Sh200,000 each; Justice Aburili ordered them to produce Mr Miguna in court; Justice Kimaru ordered the release of Mr Miguna hours before he was deported in February; and Justice Mwita ordered the ministry to facilitate Mr Miguna’s return.
Dr Matiang’i quoted the assertion by Justice Odunga last week that even if the Interior ministry trio appeared in court they would not be heard as proof that the intention has been to embarrass the government and appear heroic.
Mr Nelson Havi, one of Mr Miguna’s lawyers, could also find himself in trouble after he said in an affidavit that Mr Miguna’s Canadian passport had been taken by Kenyan immigration officials, only for the deported lawyer to say when he arrived back in Canada that he had hidden it all along.
“I want to see what the Law Society of Kenya and the Judicial Service Commission will do now that their officers have been caught lying on oath,” said Dr Matiang’i.
There has been discomfort in the Executive with the manner in which judges have been issuing orders against ministries and agencies, with the unease going back to the time Opposition MPs secured orders to have their security and firearm licences returned.
On the Miguna case, said Dr Matiang’i, none of the orders issued by the High Court last week have been served on Interior ministry officials. When Mr Miguna’s lawyers were prevented by police officers from serving officials with the orders at the Jomo Kenyatta International Airport last week, they pasted them on a door and left.
The Cabinet Secretary lamented that the security sector has suffered the most from “one-sided decisions” by judges.
Apart from the orders on Mr Miguna, he cited the various orders secured by slot machine operators across the country that have made it difficult to clamp down on the betting industry. Dr Matiang’i wondered why the orders are issued to stop County Commissioners and other field officers rather than the Principal Secretary.
The ministry has also criticised the orders by the High Court for the restoration of firearm licences for some MPs.
“We respect the Judiciary and we’ll respect court orders. All we are asking is that, as we respect the checks, we respect the balances as well. Judicial overreach is going beyond the checks and balances,” said Dr Matiang’i.
A majority of the committee’s members said the issue at the ministry appeared to have been an inability to communicate its side of the story as the drama at the airport escalated over the past week. Committee chairman Paul Koinange (Kiambaa, Jubilee) said Mr Miguna’s lawyers, the Kenya National Commission on Human Rights and, possibly, Mr Miguna, would also be invited to give their sides of the story.
The ministry has insisted that there is no way it could produce the self-declared general of the National Resistance Movement in court as he was not in their custody and had not entered Kenya after refusing to hand in his passport for stamping. Mr Miguna also tore up the forms provided to regularise his citizenship and refused the assistance of three consular officers from the Canadian High Commission in Kenya.
Dr Matiang’i said the basis for cancelling Mr Miguna’s passport was that it was issued irregularly when the late Otieno Kajwang’ was minister for Immigration and the lawyer an adviser in the Office of the then Prime Minister Raila Odinga.
He offered to submit the file to the committee to prove the fraud committed in issuing the passport.
The government realised Mr Miguna did not have a valid passport when he applied to renew his Canadian one 10 days to the next election, said Dr Matiang’i, and upon checking their records, found that he had a Kenyan one acquired irregularly.
The Cabinet Secretary said he did not know whether Mr Miguna was drugged before he was taken to Dubai last Friday. He said the lawyer was “removed from the airside at JKIA” but not deported as he has been saying.
Asked about the assault on journalists at the airport, the minister said the Independent Policing Oversight Authority is investigating the matter but insisted they should not have been filming at the immigration area.
Mr Kihalang’wa revealed that Mr Miguna would also have to regularise his identity card when he gets back into the country, but only after he regularises his passport.
He said the impression created, in photos taken by Kenya National Commission on Human Rights official Kamanda Mucheke, that Mr Miguna had been held in a toilet at the airport was false.
“That is a self-contained room with a bed, mattress and bedding,” said Gen Kihalang’wa.