Kenyan citizen Margaret Nduta Macharia, 37, will on Thursday face Vietnamese Supreme Court to argue her case, seeking to overturn a death penalty hanging on her neck for drug trafficking.
The case attracted national attention in Kenya because she had a small window in which Kenya had to convince Vietnam to reverse the decision to send her to the gallows. July 31 will determine if she is lucky, in spite of a series of diplomatic back channels by Nairobi to save her life.
Until July 2, Vietnamese criminal code allowed for punishment by death, often by lethal injection, for 22 serious crimes. They include treason, espionage, crimes against humanity, corruption, murder, robbery with violence and trafficking more than 100 grammes of narcotics. Nduta was found guilty of carrying 2kg of drugs.
However, after a legal amendment, stopping automatic death sentences for some crimes such as drug trafficking, Nduta could yet avoid the hangman even if found guilty. She may have to spend 40 years in jail though.
Murang'a family distraught after kin sentenced to death in Vietnam for drug peddling
That may be little respite, however, for Kenya because dozens of its nationals are languishing in jails in Asian countries, having fallen victims of drug trafficking, sexual offences or other crimes.
According to data collected by Kenyan Foreign and Diaspora Affairs ministry, there are about 200 Kenyans in jails in India, China, Pakistan, Vietnam, Saudi Arabia and United Arab Emirates. They were mostly arrested for drug trafficking although others were arrested for sexual and human trafficking, sexual assault, visa overstays and other crimes.
Overall, Kenya says some 1100 Kenyans are in foreign jails, including 47 in Uganda although the largest pool is in north America and the UK.
Kenyan officials say the actual number could be higher especially since most Kenyans don’t report when they get into trouble. In Thailand, for instance, there are nine Kenyans, one man and eight women. Most of them are on jail sentences at least until 2055.
One of those cases involved a woman with disability who was duped to transport a ‘bag’ to Thailand and meet a ‘sponsor’ who would have funded treatment for her disability. It turned out she had been set up as the bag contained drugs. Among those Kenyan inmates is a former flight attendant arrested with drugs. He was jailed for 38 years in 2013.
In both Thailand and Vietnam, only a royal, or presidential, pardon can free one caught with drugs. Otherwise folks have served their sentences and caught out for smaller crimes like entering with fake visas or fraud.
The cases are no different in India. Data shows at least one Kenyan has been arrested at Indian ports of entry every six months since end of Covid-19 lockdowns.
The most recent case was last month when 43-year-old Kenyan woman was intercepted at Chhatrapati Shivaji Maharaj International Airport upon her arrival from Nairobi. She had travelled from Ethiopia, according to India’s Directorate of Revenue Intelligence (DRI).
“Evidence suggests she was part of a larger drug trafficking operation originating from Kenya,” DRI said.
They also said that the suspect was reportedly supposed to hand over the drugs to an individual in Mumbai upon her arrival.
On May 19, another Kenyan national was arrested at Mumbai Airport with 1.57 litres of liquid cocaine concealed in cosmetic bottles.
Just weeks earlier, on April 3, another Kenyan woman was detained at an Indian airport with 1.7kg of cocaine, worth between Sh225 million and Sh300 million.
Before that, a separate case at CSMIA (Chhatrapati Shivaji Maharaj International Airport) saw a Kenyan woman arrested for smuggling cocaine.
This even as Cabinet Secretary for Foreign and Diaspora Affairs Musalia Mudavadi asked Kenyans to learn to respect laws of their host countries to be safe.
Prime Cabinet Secretary and Cabinet Secretary for Foreign and Diaspora Affairs Musalia Mudavadi.
Photo credit: File | Nation Media Group
Mr Mudavadi further advised Kenyans abroad to register with the nearest missions to make it easier to get help when the need arises.
Meanwhile, the Kenyan High Commission in India noted that by May this year, India alone had 70 Kenyans in jail in drug trafficking-related case. They include a 20-year-old man and a 60-year-old woman.
In India, where jails are crowded and punitive, some of the incarcerated Kenyans still waiting for the final determination of their cases. According to one consular official who spoke the Daily Nation , that process could take years, subject to court processes and availability of criminal lawyers.
Alarmed by rise of Africans caught with drugs, the Narcotics Control Bureau under the Ministry of Home Affairs in India has now placed strategic signage at places often visited by tourists and revellers warning consumers and traffickers of narcotics drugs and psychotropic substances.
In India, drug trafficking attracts sentences of between 10 and 20 years in jail.
Kenya, which has no prisoner exchange deal with India and most Asian countries, hopes a collaborative approach with countries could tame the tide. While Kenya has a legal assistance deal with China, cases of drug trafficking have been difficult to exchange.
Protection of Kenyans abroad
India has mostly recorded mules. In 2024, one Kenyan named Simon was duped for work in India only to be arrested while trafficking drugs. He had travelled from Ethiopia’s Bole International Airport.
An official record indicates that Simon travelled from Nairobi to Addis Ababa where he met a contact during layover. He left the airport then return later that day to catch a connecting flight. Authorities in India found him with 23 capsules of illegal drugs in his stomach.
In another case last year, a Kenyan man named Philip, who is an IT graduate, got an assignment to transport some bag to a contact in Cochin, Kerala in India.
Instructed to remain calm to avoid raising suspicions, he was promised Sh100,000 if the delivery was successful. However, he was arrested by customs officials in Cochin.
According to the Ministry of Foreign Affairs, both Philip and Simon were first-time traffickers.
Daniel Seret, a Researcher and Gender expert, said the problem can be solved by having a blanket protection of Kenyans abroad, as well as regulating employment agencies, some of which he says are responsible for duping Kenyans.
“If you look at America, for instance, no matter what a citizen does abroad, they work hard to have him or her released first or be tried on home soil, because they have a clear foreign policy. We don't have that here,” Seret told the Daily Nation .
“We should have a legislation to have our people tried here and if they crimes they have committed are of high magnitude. In cases that are prosecuted abroad, the Kenyan government should ensure that our nationals are subjected to proper trial with foreign policy standards with the government made fully aware of the charges so that the accused person is given the right of attorney and represented in court. That way, we shall minimise unfair convictions.”
“While a fair trial in a court of law is best placed to pronounce guilt or innocence, it is clear that the death penalty remains cruel and inhumane punishment for all crimes,” said Irungu Houghton, Amnesty International-Kenya Executive Director.
“Margaret Nduta’s cruel death will not stop the trade. By all accounts, she was not the mastermind but a mule in a trade that will immediately find another mule to transport the drugs of addiction and death.”
Kenyan diplomats, frustrated by the rise in the number of Kenyans being convicted abroad, have been reaching out to diaspora communities asking them to send messages to their families back Kenya: It is dangerous to attempt drug trafficking.
