The Law society of Kenya has released statement on the disregard of court order by the Kenyan Immigration of the case of Dr Miguna Miguna a Kenyan citizen with a Canadian passport who was deported from Kenya.In a statement made available to Courtroom Mail,the President of the Law Society of Kenya Allen WAIYAKI Gichuhi said that the Law Society of Kenya shall not hesitate to demand for any appropriate action to be taken against any state officers who may be found to have willfully failed to facilitate the compliance with the Court Order.The full statement is as follows
The Law Society of Kenya has noted with great concern the events of yester night at the
Jomo Kenyatta International Airport regarding Dr. Miguna Miguna’s re-entry into thecountry. The LSK stands for adherence to the rule of law and lawful and fair treatment of citizens. We are also concerned about the manner in which Dr. Miguna Miguna was treated by the security officers. Every citizen should be treated with decorum and respect.
The discourse on rule of law is however, only aided by honest discussion centered on law and facts.
On 26th February 2018, Honorable Justice Chacha Mwita ordered Dr. Miguna be allowed back into the country, part of which order specifically paragraph 4 states as follows:
“THAT an order be and is hereby issued directing the DIRECTOR OF IMMIGRATION and in his absence the most senior officer in the Directorate of Immigration to issue JOSHUA MIGUNA MIGUNA, the Petitioner with travel documents to enable the Petitioner re-enter and to remain in Kenya pending the hearing and determination of this petition. In default, JOSHUA MIGUNA MIGUNA, the Petitioner, shall be at liberty to use the Canadian passport to re-enter and remain in Kenya pending the hearing and determination of this petition.”
Regulation 7 of the Kenya Citizenship and Immigration Regulations, 2012 provides that a dual citizen holding a Kenyan and foreign passport shall be entitled to use any of the passports held for entry into or exit from Kenya. Regulation 8(3) provides that only where the foreign passport of a dual citizen has been endorsed to indicate that the holder is a Kenyan citizen, such an individual shall be exempted from visa requirements.
Regulation 18(3) provides that an application for a visa for a person not exempted must be accompanied by the passport or other travel documents. The court order had two limbs that allowed Dr. Miguna Miguna’s travel back to the country. If the first limb failed then he was allowed to use his Canadian passport to re-enter Kenya.
We are concerned by the failure by the directorate of Immigration to issue Dr. Miguna with travel documents as required by the first limb of order no.4 herein which would have allowed him entry into the country. We also note that Dr. Miguna was not exempted from normal immigration procedure either by Honourable Justice Mwita’s orders or endorsement of his Canadian passport. Consequently, Dr. Miguna was still expected to comply with immigration procedure to produce at the point of entry atravel document duly stamped at the point of exit. At this stage it is not clear how the court order was implemented and further investigations are being conducted iconsultation with our members.
The Law Society of Kenya shall not hesitate to demand for any appropriate action to be taken against any state officers who may be found to have willfully failed to facilitate the compliance with the Court Order.
The LSK takes this matter which affects not only its member but more importantly a Kenyan Citizen very seriously. We have been informed that the Directorate of Immigration has taken steps to remedy the situation and have forwarded application forms to JKIA for regularization of Dr. Miguna’s immigration and citizenship status.
In the meantime, we expect that Dr. Miguna shall be treated with common decency and decorum pending the expedited resolution of the matter.
ALLEN WAIYAKI GICHUHI C.Arb