• Whether Kenya was involved in an illegal rendition of Nnamdi Kanu to Nigeria may be resolved by a Kenyan court.
• The country has in the past been guilty of various examples of rendition – often to Uganda.
Nnamdi Kanu alleges Kenya sent him to Nigeria without following legal procedures on extradition.
His brother has sued the Kenyan government on his behalf, while Kanu himself is now in a Nigerian jail awaiting trial for treason. (He is also suing the Nigerian government for this treatment).
The Kenyan government denies that they had anything to do with his leaving the country.
Extradition, deportation and rendition all involve sending a person out of a country. We are not here talking about a country refusing to admit a person – though that has its own complications, especially if the person is seeking refuge from persecution elsewhere.
We are talking about people already in a country whom the government sends out. They may be foreigners, or (sometimes) citizens, people legitimately in the country or who crossed a border illegally or overstayed a visa. And there are two basic situations.
One is where the government of the country where the person is wants them to leave the country and throws them out. The other is the situation in which the reason for a person being sent out is that another country wants to try them for a criminal offence.
Elements of racism, or other prejudices, often play a part in all these situations.
In the past, countries had a free hand to deport people – provided they were not that country’s citizens. No country should deport its own citizens. One of the most obvious rights of being a citizen is the right to be in your own country. In Kenya this is Article 39(3) of the Constitution.
Unfortunately a few countries do not respect or have not respected this right fully. In the colonial period, the British government sometimes deported people to other countries (as Harry Thuku was deported to Kismayu). This, of course, is without mentioning the slave trade. Britain also deported (transportation they called it) their own citizens convicted of serious crimes to what were then remote corners of the empire, such as Australia.
Even now, some European countries have been taking away citizenship from people who have identified with Islamic State, meaning they lose their right to enter or remain in the country - perhaps of their birth.
One of the most distressing cases is of Shamima Begum, born British in Britain who at the age of 15 went to join IS. Her citizenship was taken away.
The Supreme Court has held that she can challenge this in court, but has no right to go back to the UK to make that challenge. This could not happen in Kenya because only a citizen by registration (not by birth) can lose their citizenship for any reason.
Most often, deportation is because a person has committed a crime in the country where they are or because their presence in the country in unlawful. But governments sometimes want to get rid of people for other reasons.
There are a few limits under international law to governments’ powers to deport people. One is if the person to be deported is a refugee – they can only be deported on “grounds of national security or public order”. These are rather wide grounds. But even if they can legitimately be deported they must not be sent to a country where their “life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion”.
This would probably be the country they ran away from in the first place. The 1951 treaty that says this is part of Kenyan law – because of the Constitution.
Kenyan courts have extended protection beyond refugees – relying on the Constitution (and there were cases under the old Constitution, too). So when a citizen of Niger, married to a Kenyan, having lived here for 10 years, was bundled onto a plane, the court said he had the right to fair administrative practice (Article 47) and the right to be told why he was being deported and a chance to respond. These must happen, even if there is a legal basis for the deportation. The courts have also relied on the national values under Article 10 of the Constitution.
It obviously makes sense that people should not be able to hide in country A from being tried legitimately for a criminal offence under the law of country B.
On the other hand, it is wise that there are precautions against people being sent to other countries supposedly to be tried when the real motive is to kill them, torture them, or if the criminal justice system in that other country is incapable of giving them a fair trial, or the prison system is itself inhumane. Some countries that have abolished the death penalty will not extradite someone if they risk being sentenced to death in the other country.
Some people might think “that’s not our problem”. But human rights are supposed not to stop at borders. Governments of one country are no longer supposed to care only for their own citizens.
For many countries, including Kenya, it is possible to send their own citizens to be tried in another country. In January this year a Kenyan was extradited from Kenya to the United States to stand trial for conspiracy to traffic in rhinoceros horns and ivory.
Some countries say in their constitutions that their own citizens cannot be extradited. These countries tend to be those that take the view that they can try their own citizens for criminal offences committed anywhere in the world (not an easy thing to do). That is not the usual rule under Kenyan law. Generally Kenya would only prosecute a person for an offence committed in Kenya.
The legal position about extraditing anyone from Kenya for trial in another country is complicated, and not the same for all countries. I shan’t go into all the details. But a person may not be extradited at all if the offence with which he or she is to be charged is minor. And the behaviour must also be a crime in Kenya.
A formal procedure must be followed: There must be an arrest warrant issued in the other country, a request must be made to our Attorney-General or Cabinet Secretary for extradition. The person must be given time to object not rushed onto a plane.
The person may apply to court in Kenya and should be released if the offence is trivial, an unreasonably long time has passed since it was committed, or the extradition is not sought in good faith, or handing him or her over would be “unjust or oppressive.”
The Cabinet Secretary may refuse to extradite if the offence is political – this is essentially about protecting people from being prosecuted for their political opinions. For non-Commonwealth countries – and some Commonwealth ones – Kenya enters into an extradition agreement with other countries – mutual assistance.
The process can be long. It is more than six years since the process to send Chris Okemo and Samuel Gichuru to Jersey to face corruption charges.
This is not a legal expression. Basically it means unlawful extradition.
Certain countries are a bit notorious for it. The US has seized people from other countries for trial in some cases (with the complicity of the government or not). Worse, it has sometimes seized people and sent them to a third country to be interrogated and tortured. China has seized people in Hong Kong and they have reappeared on the Mainland.
Whether Kenya was involved in an illegal rendition of Nnamdi Kanu to Nigeria may be resolved by a Kenyan court. The country has in the past been guilty of various examples of rendition – often to Uganda.
Such measures are often used in suspected “terrorism” cases. Justice Aggrey Muchelule said in one case, “Whether one is a terror suspect or an ordinary suspect, he is not exempted from the ordinary protection of the law...Police must have the capacity to battle terrorism and enforce human rights at the same time as the two are not, and should not, be incompatible.”