Kenya: Miguna Case - AG Urges Court to Consider Immigration Law

21 January 2020

Nairobi — Attorney General Kihara Kariuki has asked the court to consider the immigration law on re-entry of Kenyan citizens into the country in the wake of Miguna Miguna's case.

In his advisory opinion on the matter, the AG notes that the court should be alive to the factual circumstances on compliance and intervening facts which might complicate the compliance.

Justice John Mativo on January 13 requested the AG in his capacity as a friend of the court to give his opinion on why the state has failed to obey court orders allowing the return of Miguna Miguna, after a Red Alert was issued to airlines not to fly him home.

"We submit that obedience of the court orders is one of the tenets of the rule of law and concept of court and ought not to be counter named in a constitutional democracy such as ours," the AG stated in the advisory opinion tabled in court Tuesday.

The AG however, submitted that the courts in seeking to enforce the rule of law as a constitutional principle, should be alive to the context of every case based on the application of the law and the applicable facts.

"We submit that in the present context of the matter any consideration of disobedience of court orders is legally limited to the final judgment and the orders of the court issued on December 2018," he said.

On January 6, Justice Weldon Korir prohibited the state from interfering, in any way, whatsoever with Miguna's entry into Kenya.

"An order is hereby issued directing the Registrar of the High Court to release to Miguna's lawyer or an authorized officer of the Kenya National Commission on Human Rights (KNCHR) the copy of his Kenyan Passport currently under the custody of the court for the use by Immigration Officers in his identification as a citizen of Kenya," ordered Justice Korir.

The court further issued an order compelling Interior Cabinet Secretary Fred Matiang'i, Director of Immigration Alexander Muteshi, Inspector General of Police Hillary Mutyambai and Director of Criminal Investigations George Kinoti to facilitate his entry into Kenya.

Miguna is however, yet to jet back in the country with the state claiming it has no control of the situation and if his travel documents are processed, he could come back to the country. After flights from Europe declined to fly him home, Miguna is reported to have jetted back to Canada.

On Tuesday, Miguna's lawyer John Khaminwa protested the move to have the matter mentioned on March 23, saying it is far away.

While addressing the journalists, Khaminwa said the matter was mentioned at 9 am on Tuesday yet it had been slotted for 11 am.

"I was astounded because we did not expect such a thing to happen. This is a matter that is very important to Miguna Miguna and we had gotten in touch with him and assured him all is well ..," Khaminwa told the journalists and accused the counsel for the Attorney General of not being sincere and that he should have explained to the Judge that the matter was to be mentioned at 11 am.

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