Case Watch: Kenya Judge Rules against “War on Terror” Renditions
By Jonathan Horowitz
In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to our work to advance human rights law around the world.
When do national security interests trump respect for human rights? The question recently came before the High Court of Kenya. In an important decision, the court’s Constitutional and Judicial Review Division ruled that Kenyan authorities were at fault for the unlawful detentions, ill-treatment, and rendition of eleven individuals—ten men and one woman—suspected of terrorist activities. The imperative to fight terrorism, the court found, is not a sufficient reason to ignore the rule of law.
The decision, Salim Awadh Salim, et. al. v. Commissioner of Police et. al., which was written by Judge Mumbi Ngugi and issued in July, could bolster important police reforms underway in Kenya. This is especially important now, as reports mount that Kenya’s Anti-Terrorism Police Unit and other security forces are acting without regard for the law and violating human rights during counterterrorism operations.
The eleven individuals—nine of whom were Kenyan—were part of a larger operation that the Kenyan government orchestrated in 2007 that resulted in the rendition of nearly a hundred people in Kenya to Somalia on the suspicion that they were involved in terrorist activities. The eleven were detained while trying to enter from Somalia into Kenya at a time when Kenya had shut down its borders. This was at a time when Ethiopian troops were in Somalia assisting the Somalia Transitional Federal Government fight Islamic Courts Union (ICU) militia and both ICU fighters and civilians were fleeing the war into Kenya. The eleven were held for between 20 to 30 days and then, without legal proceedings, were transferred to Somalia and on to Ethiopia. In all three countries the eleven individuals alleged abuses while in detention. After diplomatic efforts, Ethiopia eventually released all eleven.
At the border, according to the government, the eleven individuals did not provide their identification documents or other proof of their identity. As a result, and with the involvement of the (now former) head of the Anti-Terrorism Police Unit ,Nicholas Kamwende, the eleven individuals were apprehended and underwent a process of “expedited deportation…back to Somlia.” (at para. 23 of the decision) As for legal justification, the government said it was allowed to detain someone while he or she awaits deportation proceedings when it is “in the interest of public order and safety.” (at para. 25) The government placed particular emphasis on the national security threat that it was experiencing due to population flows, which it said included ICU fighters, over its border.
The court found the government’s defense dubious. First, the court noted that the deportation orders, which took weeks to prepare, included the eleven individuals’ correct names—thereby calling into doubt that government’s allegation that it did not have their identity documents. (The eleven individuals alleged their identification documents were confiscated by other Kenyan authorities prior to their detention.) Second, the court chastised the government for not treating the group, who were fleeing war, as potential refugees under the UN Convention Relating to the Status of Refugees and the Convention Governing the Specific Aspects of Refugee Problems in Africa. Third, the court held that there was no justification for having detained the eleven individuals without bringing them before a court within 24 hours of their detention, denying them a hearing, or subjecting them to extradition and/or deportation procedures, all of which are required by Kenyan domestic law. In response to the government’s contention that it was constitutionally entitled to “arrest, hold the petitioners and issue the declaration and deportation orders for reasons of national security,” the court held that “as this court has found in several cases, reasons of national security cannot be a basis for violating the constitutional rights of any person…” (at para. 75)
The court also determined that the group was subjected to psychological torture in Kenya. The court held that one of the individuals was also subjected to physical torture, but due to a lack of evidence the court did not come to the same conclusion for the others. As a result, the court awarded damages to the victims in amounts ranging from 2,000,000 to 4,000,000 Kenyan Shillings (approximately US $22,800.00 - 45,500.00).
The eleven individuals had also alleged that Kenyan authorities were responsible for their abuse under the legal principle known as non-refoulement, which prohibits states from transferring an individual to the custody of another state where there are substantial grounds to believe the individual would face a real risk of torture. Separately, the group alleged that Kenyan authorities discriminated against them for being Muslim. They also alleged that two private transport companies that operated the planes used for the renditions—African Express Airways, LTD and Blue Bird Aviation, LTD—were liable under the doctrine of causation. The court did not, however, find the Kenyan authorities or the private companies liable for these three claims due to lack of evidence.
While the court did not rule in favor of all the claims against Kenya, the judgment demonstrated the willingness of the Kenyan judiciary to hold the executive to account for human rights abuses committed in the name of national security and counterterrorism. In doing so, the decision joins the company of at least two other judgments—see here and here—that determined it was unconstitutional for Kenya to render to Uganda, without legal proceedings, two men suspected of involvement in the 2010 bombings in Kampala.
Moreover, and despite their involvement in illegal counterterrorism operations, it is to the credit of the Kenyan executive that it openly engaged in the litigation rather than hiding behind bald denials or a claim of state secrecy. Because of this, the eleven rendition victims were afforded an important opportunity for redress—something that other countries, in particular the United States, continues to fail to do. What has yet to be seen is whether this case will help curb further counterterrorism abuses or whether it will join the company of previous judgments where the executive branch unduly delayed paying out damages awarded for human rights abuses.
Until January 2019, Jonathan Horowitz was a senior legal officer for the Open Society Justice Initiative.