Two international airline companies have been sucked into a citizenship dispute pitting Kenyan firebrand lawyer Miguna Miguna against the government. This development became widely known as “Miguna Miguna sues Lufthansa”.
The lawyer, who lives in exile in Canada, wants the landing rights of aircraft owned or operated in Kenya by Lufthansa Group (German Airlines) and Air France suspended, a move likely to affect business if successful.
Lawyer John Khaminwa indicates in court documents that the prayer is because the airlines facilitated Miguna’s illegal, arbitrary, and forced exclusion from entering Kenya. They did so despite clear court orders. Reports highlight the headline “Miguna Miguna sues Lufthansa” as this unfolds.
Miguna’s application will come up for hearing and directions at the Milimani Law Courts in Nairobi on Monday.
Mr Khaminwa is seeking orders restraining any aircraft or airborne vessel affiliated with the two airlines from landing at any airport or airstrip in Kenya. This is allowed only for the purpose of facilitating Miguna’s transportation back to the country. This is one of the cases where Miguna Miguna sues Lufthansa and similar entities.
The orders are to be effected by Kenya Civil Aviation Authority’s Director-General Gilbert Kibe and Kenya Airports Authority’s acting Managing Director Alex Gitari.
“The airlines have willingly, and with great alacrity and glee, allowed [themselves] to be recruited by the Attorney-General and Cabinet Secretary for Foreign Affairs. Their actions contravene the Kenya Constitution, Kenya law, the laws of the European Union, and international laws,” he says. This includes aviation law and human rights law.”
“The two airlines are subject to the Kenya Constitution and the law," he explains. This is because they operate their businesses in Kenya.
BACK AND FORTH
Mr Khaminwa returned to court after Miguna’s return to Kenya on January 7 aborted. This was following a red alert the government issued against him.
His return was in light of a court order of December 18, 2019 by High Court Judge Chacha Mwita. Judge Mwita ruled that Miguna's deportation to Canada was illegal. He stated that his rights and his fundamental freedoms were grossly violated.
Justice Mwita also compelled the government to immediately return Miguna’s Kenyan passport and any other identification documents taken from him.
Following the ruling, the lawyer purchased a ticket to travel to Kenya. He planned to fly from Berlin via Frankfurt via Lufthansa Flight LH 590, at 9.25pm on January 7.
This was on the basis of his constitutional right as a Kenyan citizen and the court order.
But the Attorney-General and the Interior ministry refused to comply with Justice Mwita’s order. This forced him to file an urgent application on December 31, 2019 to compel compliance.
On January 6, Justice Weldon Korir issued orders restraining the agencies from interfering with Miguna’s re-entry into Kenya. They were instructed not to intervene based on his identification through his national ID card or his Kenyan passport delivered by government agencies to the court’s registry.
AIRLINES BARRED
On the force of the two court orders, dated December 18, 2018, and January 6, Miguna sought to check in to board a Lufthansa aircraft at Berlin airport. He wanted to travel to Nairobi via Frankfurt, Germany. Yet, amidst these legal battles, the phrase “Miguna Miguna sues Lufthansa” captures widespread attention.
However, the court papers indicate, the airline’s agents denied him the opportunity. They stated they had been barred by the Kenyan government, the Office of the President of Kenya, and specifically the Foreign Affairs CS.
They said they were under instructions not to transport him to Kenya or to any other African country.
The ban on Miguna’s return to Kenya was termed a “red alert”.
On attempting to board the Air France Flight to Nairobi, the same communication was passed to him. It’s noteworthy given how Miguna Miguna sued Lufthansa amid these airline disputes.
“In spite of the petitioner insisting to the airlines that he had valid court orders from Kenya, requiring him to return, Lufthansa and Air France insisted they could not act on the basis of those orders,” states Mr Khaminwa.
He adds that the airlines said they would only transport Mr Miguna to Kenya if they received an advisory. The advisory should come from the Foreign Affairs CS, stating that the one barring them from transporting him had been vacated. Then, his transportation would be in order.
“The two airlines have, through their action of refusing to transport the petitioner to Kenya, violated his rights,” Mr Khaminwa states. Their refusal occurred while fully aware of the numerous orders of the Kenyan court. They have shown contempt for Kenyan courts and the rule of law in Kenya.
“They have demonstrated that they are overly willing to operate outside the law and facilitate violations of human rights for purely profit and business ends.”
CITIZEN
In the petition, the lawyer explains that Miguna is a Kenyan citizen by birth, born in Magina village on the shores of River Nyando in the Kano Plains, Kisumu County.
Mr Khaminwa also notes that Miguna’s parents, Joshua Miguna Jomune and Margaret Sure Miguna, both deceased, were Kenyan citizens by birth. He adds that Miguna also holds Canadian citizenship acquired through registration.
Mr Miguna is an advocate of the High Court of Kenya, admitted in 2008, and a barrister and solicitor in the province of Ontario, Canada.
Miguna has been of good standing with the Law Society of Kenya and the Law Society of Upper Canada. He maintained this throughout the respective durations of his admission to the bar. He actively practises as an advocate in both jurisdictions.
He owns a home in Runda Estate, Nairobi, and in Kisumu County, and most of his family members reside in Kenya.
“The petitioner served as a public officer and specifically a constitutional and legal adviser to the grand coalition government between 2008 and 2012,” the court documents state. He undertook many official foreign missions on behalf of the government of Kenya.
ELECTION CLEARANCE
Mr Khaminwa also tells the court that the fiery lawyer was one of the candidates cleared by the Independent Electoral and Boundaries Commission (IEBC) to run for the position of governor, Nairobi County, in 2017.
Further, the lawyer says, his client was an aspirant for the Nyando parliamentary seat in the 2007 General Election, as acknowledged during party primaries of the Orange Democratic Movement (ODM).
Mr Khaminwa adds that Miguna voted in the last three general elections.
The lawyer wants the court to declare that restraining Miguna from entering Kenya, without justification, and without informing him of reasons for the red alert, was deplorable and inhumane. Additionally, it violated his constitutional rights.
Arguing that the alerts are unforeseeable, the lawyer asks the court to restrain the government from issuing travel advisories against Miguna.
He is also seeking an order requiring relevant government agencies to facilitate his client’s unconditional return to Kenya. This should occur on a date and time he appoints. Also, it should be through an airline or another mode of transportation he selects.
Miguna also wants orders for him to be issued with travel documents if need be.
Source-nation.co.ke
