What you need to know:
- After the right to life, the right to citizenship is foundational and allows the enjoyment of other rights.
- In the absence of a constructive engagement, repression is the only way in which Jubilee will continue to maintain itself in power.
The government has struggled to justify its astonishing decision to deport Miguna Miguna to Canada, thus revoking his birthright Kenyan citizenship.
The explanation given is that Miguna took up Canadian citizenship at a time when to do so would automatically lead to the revocation of his Kenyan nationality.
According to the government when, later, Miguna obtained a Kenyan passport, a development that was followed by the passage of a new Constitution that now allowed dual nationality, this did not reinstate his Kenyan citizenship.
There are issues of detail that would possibly serve to undermine the claims by the government, and which will probably come into resolution in the coming days.
What has been even more difficult to explain are the strong arm tactics that were on display in dispatching Miguna to Canada.
Arrested after security agents stormed his home, breaking down gates and doors, Miguna was then held incommunicado in several secret locations, with the authorities ignoring a series of court orders for his release or presentation in court.
With too little time to do anything about it, the country was then presented with news about his planned deportation to Canada.
The manner in which Miguna has been treated recalls the 1980s, when the political establishment would arrest and hold political dissidents in secret locations.
This would then be followed by a public announcement of their detentions without trial, a feature of Kenyan politics in the first three decades after independence.
At a particular time in the country’s history, the basement at Nyayo House, hidden in open view, served as a secret location where political dissidents would be held before being dispatched to long jail terms following secret night trials in court.
If holding people incommunicado and in secret was not an act of torture in itself, this practice significantly promoted chances that they would be subjected to torture and inhuman treatment.
Almost always, those that were lucky to get a chance to go before a court of law after confinement would complain that they had been tortured, a claim that the timid Judiciary of the time generally ignored.
For some, like Kiambu farmer Stephen Mbaraka Karanja, being held secretly resulted in worse than torture.
After his family failed to locate him in any police station following his arrest on April 1987, they eventually made a habeas corpus application before the High Court, where the police disclosed for the first time that Karanja had been killed when he allegedly tried to escape from custody.
The police said they had then buried his remains secretly in Eldoret, far away from where he had been arrested, an act that Justice Derek Schofield described as “callous in the extreme.”
Miguna was himself a victim of the political repression of the 1980s and 1990s, from which he escaped into exile in Canada.
It is an irony that his arrest has set the stage for a possible resumption of political practices that the country thought it had put behind for good.
While the government has tried to explain the revocation of Miguna’s citizenship, there has been no attempt to explain how the processing of his deportation could have comported with fair administrative action, now a standalone constitutional right.
The right to fair administrative action translates into a duty to exercise procedural fairness when making a decision affecting the rights of a person.
After the right to life, which is the most basic human right, the right to citizenship is foundational and allows the enjoyment of other rights, including access to justice and the right to family.
Dr Miguna, a protuberant personality and prominent political actor, mistakenly thought that his high profile would offer him protection from the shocking arbitrariness with which he has been treated.
Treating Miguna this way is not only an act of naked vengeance against a person who has dared to challenge the political establishment so directly; it is also a statement by the government about its capabilities, whether lawful or otherwise, and a warning of its readiness to deploy these if needed.
It is a warning that if others are tempted to follow Miguna’s cause, they should not be surprised if they receive similar treatment.
How Miguna was treated has had a general effect of devaluing all rights, and the security that due process is supposed to confer.
The exiling of Miguna has been accompanied by a purported cancellation of the passports of a number of opposition leaders, and the arrest of two opposition members of Parliament.
Again, this is a tactic from the country’s repressive history, and further signals that the government is proactively courting conflict with the opposition.
The question, though, is why the government would be doing this, in a country that is already riven with so much political bitterness after the elections last year.
It seems that Jubilee is reacting to the "swearing-in" of Raila Odinga as “the people’s president”, a major political marker for the opposition.
Mr Odinga’s "swearing-in" presented Jubilee with three choices: First, to play the contempt card towards the swearing-in; second, to seek a positive engagement with the opposition with a view to ending the political crisis, and third, to escalate its competition with the opposition.
It is clear that Jubilee has chosen the third of these options.
The crack down on the opposition and the disregard for rights is calculated to build ascendancy against the opposition, with a view to ensuring that its will ultimately prevails.
In the absence of a constructive engagement, repression is the only way in which Jubilee will continue to maintain itself in power.
In those circumstances, difficult days lie ahead for the country, as each act of repression will be met with some kind of reaction.
At the same time, the opposition has no incentive to act reasonably, and will seek ways to maintain and escalate the ongoing crisis, triggering more repressive action by the government.
Patrick Gathara claimed in a recent blog that Kenya’s future is increasingly looking like its past. He could not have been more correct.