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Inside A Kenyan Courtroom, A Deepening Political Crisis Is On Display

Feb 7, 2018

Close to midnight on Tuesday, attorney Miguna Miguna found himself on the tarmac of Nairobi's international airport. He had been driven there by Kenyan security forces after spending five days in different jail cells, without being able to talk to anyone.

Miguna Miguna, 55, is a constant government critic on Kenyan TV — dramatic, funny, caustic and instantly identifiable by the kofia hat he always wears. But since disputed presidential elections last fall, he's taken on a prominent role in the country's politics. Miguna publicly pushed the losing candidate, Raila Odinga, to declare himself president, despite threats from President Uhuru Kenyatta that they would be charged with treason.

When opposition leader Odinga took an oath in front of tens of thousands of his supporters, last week, Miguna stood by his side with a wide smile. When the government started arresting opposition figures and shut down four television stations, the lawyer spoke defiantly at a press conference on Thursday. He ordered members of the opposition to take down official portraits of Kenyatta and replace them with a portrait of Odinga.

"So [Cabinet Secretary for the Interior Fred] Matiang'i, if you are looking for me to arrest me, to cook up charges, I am ready," Miguna said.

The morning after that press conference, security forces detonated explosives to enter his house and arrested him. For five days, police ignored court orders to release Miguna. And on Wednesday, Miguna found himself on a plane en route to Toronto. The opposition said he'd been exiled; the government said the Kenyan-born political activist wasn't a legal Kenyan citizen.

Miguna's case has become a symbol of an executive branch testing the limits of a country's young constitution.

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Before Miguna was put on that plane, no one seemed to know where he was. So his case played out at the High Court in Nairobi.

On Tuesday, a renowned Kenyan constitutional lawyer representing Miguna stood in front of the packed courtroom, and pulled out a book. It was the story of Nyayo House, a building in Nairobi that the authoritarian regime of Daniel Arap Moi used as torture chambers. It's where Odinga and many other opposition members were detained when they clashed with the government. Kenyans view it as a symbol of their bloody past, an era displaced by the freedoms enshrined in Kenya's 2010 Constitution.

"People have suffered for this Constitution," said attorney John Khaminwa. "They have died. Families have broken up. We can't have one or two people trying now to water down this Constitution. We shall not have it."

Since Odinga declared himself the "people's president," the Kenyan government has reacted with the kind of authoritarian might that was common in Kenya's past. Odinga's oath had no legal or practical significance, but the government has essentially suspended constitutional order in reaction to it. Despite court orders, the government has refused to turn on the last of three major television stations it censored. And despite court orders, it refused to release Miguna.

On Monday, High Court Judge Luka Kimaru just shook his head as the director of public prosecutions said he did not know where Miguna had been taken or what he was charged with.

Kimaru had already held the government in contempt for defying his orders through the weekend. But how could he compel the executive branch, which controls the police and the military, to comply?

Nelson Havi, one of Miguna's lawyers, left the court looking tired and exasperated.

"We are in a dictatorship," Havi said.

Protesting TV blackout

Less than a mile from the courthouse, a coalition of civil society members gathered on Monday at Freedom Corner in Uhuru Park to protest the government shutdown of media.

"We are here to call the conscience of our people," human rights lawyer Catherine Muma said. "We need to stand up for the truth, we need to get back to the rule of law in this country."

During more than 20 years under Moi's authoritarian regime, Kenyans feared speaking up. If they did, they risked being picked up by secret police, some never to be seen again.

Since Moi lost the presidency in 2002, Kenya has become a bastion of democracy on the continent. Its 2010 Constitution guarantees freedom of speech, assembly and the press. And all of those freedoms are taken seriously. Unlike many of their neighbors in the region, Kenyans speak freely. They criticize their government and they take to the streets with little fear that they will be severely punished for speaking their minds.

So, as Monday's protest wound its way through the streets, people flocked to the sidewalks in support.

Festus Keneo, who works in downtown Nairobi, watched from the sidelines as protesters sang the national anthem.

"In our Kenya now, everything seems like it is corrupt," he said. "Now the government is acting like they are doing crime. They are not even respecting the law."

The government did not respond to NPR's multiple requests for comment. Publicly, interior minister Fred Matiang'i has said the administration considers Odinga's swearing-in "treason" and will bring the full force of justice upon all those involved.

W.O. Maloba, a professor at the University of Delaware who's written biographies about Kenya's first president, Jomo Kenyatta, says this all seems very familiar. Attacking the media and jailing the opposition were hallmarks of Jomo Kenyatta, president from 1964-1978, the father of current President Uhuru Kenyatta.

"The instinct of Uhuru Kenyatta is to rule like his father, which is to rule by decree," said Maloba.

Indeed, during Uhuru Kenyatta's first term in office, which started in 2013, the government tried to restrict freedom of the press and the work of civil society groups.

At the moment, Maloba believes, Kenyatta is trying to "push the envelope," and test the limits of his power. Maloba said the president is weighing the reaction of the international community and the Kenyan public as he cuts into some of the basic rights afforded to Kenyans by the Constitution's bill of rights.

"My sense is that what is happening in the country should be seen as worrisome by all those people who believe in democracy and the rule of law," he said.

The demonstrators marched in front of one of the censored TV stations, then made their way past monuments that honor the bloodshed it took to get a constitutional democracy in Kenya. But it all ended when protesters took a turn toward the interior ministry.

Security forces fired teargas. The boom ricocheted across the high-rises downtown and the protesters ran, leaving behind empty streets and sidewalks strewn with posters calling for an end to government repression.

Miguna reappears, then gets deported

Miguna emerged on Tuesday — but not at the High Court in Nairobi where protesters were demanding his release.

Instead, the government presented charges against Miguna in a rural court in Kajiado, about an hour and a half south of Nairobi. Finally, Miguna was seen in images captured by local journalists and citizens, just as the government accused him of, among other things, being part of an outlawed opposition group and helping Odinga commit treason.

The feisty opposition figure, who calls himself the "general" of the National Resistance Movement, was defiant. "I'm fearless," he's heard saying in a cellphone video posted online. "It does not matter what they do."

The judge in Kajiado rejected the government's move saying Miguna needed to be taken to Nairobi, because a higher court had already ordered his release.

When High Court Judge Kimaru heard that Miguna had reappeared, he reconvened. He chastised the government, saying Miguna was held illegally for days now and it should either bring him to the High Court or release him at once, per his order.

"It is not for the respondents to interpret the legality or the veracity of the order issued by this court," he said. "It is not up to the respondent to choose whether or not to comply with the order issued by the this court."

Kimaru said he would stay at the courthouse to wait for the executive branch to fulfill an order issued by a coequal branch of government. But on Tuesday, day turned into night and Miguna Miguna was never brought before the judge.

Instead, security forces drove Miguna to Nairobi's Jomo Kenyatta International Airport. They forced him to board a KLM flight to Amsterdam and, early Wednesday morning, the presidency announced it had now complied with the release order and that they had "even assisted him with a flight ticket home" — to Canada.

In 1988, Miguna traveled to Canada, fleeing persecution from the Moi regime. He became a Canadian citizen and the old Kenyan Constitution did not allow for dual citizenship. That changed with the 2010 Constitution, which does allow it and also bars the government from stripping citizenship from anyone born in Kenya. The government argued that Miguna had received a Kenyan passport illegally, because he had not properly applied to regain his Kenyan citizenship as required by law.

From the Amsterdam airport, Miguna sent a text message: "I will challenge all the illegal and unconstitutional actions by the despots in court starting today," he wrote. "They are not above the law, even though they behave as if they are."

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