Plans by Kenyan lawyer Miguna Miguna to return to the country from Canada have received a boost after the government informed court that the red alerts he was complaining of were not in existence.
Mr Miguna, through advocate Dr John Khaminwa, wanted the court to order for lifting of red alerts issued by the Kenyan government to two international airlines; Air France and Lufthansa Group (operating as German Airlines), to allow him travel to Kenya next week on Tuesday.
But Justice Hedwig Ong'undi dismissed the request saying it was filed prematurely and without support of the necessary evidence.
“The Attorney General together with Cabinet Secretaries for Foreign Affairs (Raychelle Omamo) and Interior (Fred Matiang'i) in their replying affidavit have averred that the purported advisory (red alert) does not exist. They have deponed that they have no intention of denying Miguna entry into Kenya,” stated the judge.
With the explanation by the three top government officials, the court observed that Dr Miguna's case was founded on the apprehension that history will repeat itself.
This is because last year two airlines refused to fly him to Nairobi on grounds that the government of Kenya had issued red alerts against him.
The judge said the court cannot rely on speculations to grant the orders sought by Dr Miguna although she said she appreciated the anxiety he exhibited following what happened to him previously.
“The respondents should, however, note that we are watching to see if they will act as per the averment in the replying affidavit as Miguna observes the law as regards reentry into Kenya,” said Justice Ong'undi.
She highlighted that the government officials in exercise of their functions are bound by the national values and principles.
In his court papers, Dr Miguna's advocate indicated that the red alerts made it impossible for the lawyer to travel into the country.
Dr Khaminwa informed the court that Dr Miguna has already booked an air ticket to travel from Canada via Germany and France to land in Kenya.
The advocate said the orders sought were consequential for purposes of enforcement and implementation of six previous court orders made in respect of Mr Miguna.
"It is lawful and just that the red alerts issued to the two airlines and any other airline be lifted forthwith. Chief Justice Willy Mutunga (retired) and the Law Society of Kenya (LSK) president Nelson Havi are scheduled to fly to Canada to accompany Miguna back home," argued Dr Khaminwa.
The former Chief Justice, while announcing his intention to fly to Toronto to accompany Mr Miguna on his journey back home, condemned the disobedience of court orders in regard to Mr Miguna’s return to the country.
He indicated that the alerts were issued by the Attorney General and the Cabinet Secretaries for Interior and Foreign Affairs after Dr Miguna's removal from Kenya in February 2018.
He listed the Attorney-General Kihara Kariuki, Foreign Affairs Cabinet Secretary Raychelle Omamo, Kenya Civil Aviation Authority Director-General Gilbert Kibe, Kenya Airports Authority Acting Managing Director Alex Gitari and Interior Cabinet Secretary Fred Matiang’I as respondents in the case.
The application was Dr Khaminwa's second attempt to see whether Dr Miguna will be able to return to Nairobi after his earlier return scheduled for January 7, 2020 aborted on the basis of the red alerts.
The return was in light of a court order dated December 18, 2019 by High Court Judge Chacha Mwita who ruled that Dr Miguna's deportation to Canada was illegal and that his rights and fundamental freedoms had been grossly violated.
Justice Mwita had also compelled the government to immediately return to Mr Miguna his Kenyan passport and any other identification documents taken from him.
Following the ruling, Mr Miguna purchased a ticket to travel to Kenya from Berlin via Frankfurt on January 7, 2020 at 9:25pm. He was to use the Lufthansa Flight .
A day earlier, (on January 6, 2020) High Court judge Justice Weldon Korir (now promoted to Court of Appeal) issued another order restraining the State agencies from interfering in any way with Dr Miguna's entry into Kenya based on his identification through the use of his National Identity Card or his Kenya Passport in the form and state it was delivered by the government agencies to the court's registry.
On the strength of the two court orders, Dr Miguna sought to check-in to board the Lufthansa Airline at Berlin Airport for Nairobi via Frankfurt Germany.
However, the court papers indicate, the airline's agents denied him to check-in on account that they had been barred by the Kenyan Government from transporting him “to Kenya or any other African country”.
On attempting to board the Air France Flight to Nairobi, the same communication was passed to him.
Dr Khaminwa added that the airlines said they would only transport Dr Miguna to Kenya if they received an advisory from the Cabinet Secretary for Foreign Affairs indicating that the advisory barring them from transporting the fiery lawyer had been vacated and confirm that it was in order to transport him.
"Miguna is entitled to enter Kenya as a matter of Constitutional right and further, by virtue of several orders and a decree made in that regard," said Dr Khaminwa.
