Mativo stood up for all of us, not just Somali refugees

Wednesday February 15 2017


By Muthoni Wanyeki

Amid all our justified gloom and doom, it’s important to celebrate the little victories. When we win the battle, if not the war.

This last Thursday, the High Court of Kenya — sitting under Justice John Mativo — stood up for equality, fairness and the rule of law.

He delivered his ruling in the case brought before him by the Kenya National Commission on Human Rights and Kituo cha Sheria — with Amnesty International acting as an interested party — against the executive as represented by the Cabinet and Permanent Secretaries of the Ministry of Interior.

The case had to do with the MoI’s directives of May 6 and 10 last year, ordering the disbandment of the Department of Refugee Affairs, the repatriation of all Somali refugees and asylum-seekers and the closure of Dadaab refugee camp.

His ruling was unambiguous.

The government decision to repatriate Somali refugees and asylum-seekers is arbitrary and discriminatory, violates Articles 27 and 28 of the Constitution and is thus null and void.

The specific government decision to close Dadaab refugee camp — done without representation from stakeholders and, most importantly, affected persons — is unconstitutional as it violates Article 47 of the Constitution on fair administration action.

Strikingly, the judge took issue with the MoI’s purporting to be able to disband public institutions established by statute — in this case the Department of Refugee Affairs, established under the Refugee Act.

He declared this disbandment ultra vires and thus null and void. He went further to declare that both the CS and the PS of the MoI had acted in excess of their powers, violating both rule of law and their oaths of office under the Constitution.

To give real weight to his declarations, he concluded by ordering both directives — of May 6 and 10, 2016 — quashed. And, with immediate effect, the restoration of the status quo that pertained before those directives by the reinstatement and operationalisation of the DRA.

Thus the victory was not only for Somali refugees and asylum-seekers who’ve sought Kenya’s protection. It was also for the Constitution’s promise of separation of powers and checks and balances. In this case, the judiciary — strongly — reminding the executive that it cannot do what it wants, whenever and however it wants. It has to act within the Constitution and the law.

The ruling thus gives us all hope. Who’ve watched aghast at some of this executive’s behaviour. The courts, in this case, have held the line for us all.

That this ruling comes at a time when civil liberties organisations — not to mention the entire technology industry and individual states — are also flocking to the courts in the United States, trying to hold their own line against the outrageous excesses of the new American executive, makes the ruling even more poignant.

The good news is that Americans have stood up against this. Not just in the streets. But in the courts. And, practically, at the airports. Huge numbers of volunteer immigration lawyers have been flocking to the airports to assist those trying to enter in making their case.

And the courts did — in the end — give them respite. Did, at least temporarily, vindicate them.

On almost the same grounds as the ruling this past week.

The moral of the story is powerful. We don’t have to take the abuse of power sitting down. We can stand up.

L. Muthoni Wanyeki is Amnesty International’s regional director for East Africa, the Horn and the Great Lakes