Why do Kenyan Judges and Lawyers worship Miguna?

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By a Special Correspondent, Nairobi April 4, 2022

The story of Miguna Miguna’s deportation, sad as it is, allows us to reflect deeply on the intersection of personal, collective, legal and trans-global identities.  As a Kenyan who once lived abroad for a long time and really wanted to return and live amongst my people, I sincerely feel for Miguna.

There is no denying the fact that Miguna is Kenyan. He was born here. He grew up here. He speaks one of our vernacular languages, Dholuo, as well as Kiswahili and English. He attended Njiiris High School, an academic giant in Murang’a, right at the heart of Kenya. Members of his extended family live near our third largest city, Kisumu.

The man can ngota, is afraid of ngeta, and eats ngege with ngima. He knows our gestures, and like a good Kenyan, shakes hands heartily even with people he has just parted with if he meets them again around the block. He smiles for no reason. He understands our cultural allusions. Biologically, even without the benefit of a DNA analysis, I can vouch that he is Kenyan. He looks like us, give or take a larger frame and a Dracula tooth. There is no doubt in my mind that he is Kenyan – probably suffers bipolar.

Miguna as Kenyan and as a Kenyan 

The problem is that he thinks he is a Kenyan. Even more interestingly, many of us think he is a Kenyan. But is he really a Kenyan or just merely Kenyan? Sounds trivial but there is an important distinction.

To be Kenyan is your own choice. All it takes is a sense of belonging. You profess that you are Kenyan depending on your personal whims and a modicum of cultural affinity with the rest of the Kenyans.

To be a Kenyan, that category of identity preceded by the article “a”, however, is to have something extra beyond being born here or wallowing in indescribable Kenyaness.

We don’t confer this identity upon ourselves and if we do, the declaration is meaningless. The Kenyan bureaucracy declares this category of identity. That is why the Makonde and the Nubians were not regarded as Kenyans for the better part of the postcolonial era, despite being born here, some of them earlier than Miguna.

Of course courts have a way of imposing themselves on all manner of disputations, which is hardly a bad thing. Note, however, that if it were a purely legal issue, the Makonde and the Nubians would have acquired Kenyan citizenship through adverse possession after living in this country for decades.

The complexity of identity 

It is clear by now that “identity” is a very complex term. It has psychological, social-cultural and legal-bureaucratic aspects. None of these aspects seems capable of substituting for the other. You cannot become an American if you feel overwhelmingly American after listening to American country, hillbilly, or gangster rap music or after consuming fatty, processed, fast food and downing it with super-sized pop. Even if you sag. And even if you were born in America, you would still have to apply for an American passport, which is one proof of American citizenship.

It is noteworthy that many Americans politicians are mulling over the idea of withdrawing automatic citizenship to any one born in America, while hundreds of thousands of American-born children have been denied their citizenship benefits after they were deported together with their parents.  But I digress.

To be a Kenyan is to certify a certain bureaucratic criteria. Repeat: A Kenyan citizen is not merely one who was born here. Miguna may be convinced in his mind that that he is a Kenyan, a view many of us, including yours truly, already share with him, seeing that he was born here. But he made a certain conscious decision in the late 1980s, regardless of the expediency that may have compelled him to change his nationality, and thus became a Canadian.

Acquiring Canadian citizenship 

The consequences for that decision were as real as the reality of his Kenyan birth. In fact, it conferred certain bennies to the man, which I am certain he appreciates. If he did not change his national identity, he would probably not have become the prominent lawyer that he is today, and would have waited, like those who never changed their Kenyan citizenship, for at least another 20 years for the introduction of Parallel degree programs, to complete his degree after being expelled from university.

To access these benefits, therefore, Miguna traded aspects of his Kenyan identity – his legal status as a Kenyan – for a foreign bureaucratic identity that probably means nothing to him at a time when the operative constitution barred Kenyans by birth from holding dual nationalities. In so doing, he knew that he would merely be a Canadian, an ill-fitting immigrant always haunted by the perennial myth of return, without being Canadian, the same way he would continue being Kenyan while ceasing to be a Kenyan.

Reclaiming Kenyan citizenship

The framers of the 2010 constitution obviously recognized that a large number of Kenyans had acquired foreign citizenship as a consequence of the totalitarian action of different postcolonial administrations in Kenya. They therefore inserted a provision allowing dual-citizenship, desirous of copying the Indian’s government’s enviable example of uniting its huge diaspora with its citizenry, and thereby harnessing the resources of its diaspora.

Those who had surrendered their Kenyan citizenship were allowed to reclaim it in a process that was very simple compared to that the Kenyans had undergone to acquire their foreign citizenships. Indeed, the reclamation was almost automatic; you filled some forms and submitted those to Kenyan Immigration for processing. That was it. I am yet to hear of a single Kenyan by birth who was denied his or her citizenship back. But I am also yet to hear of a single Kenyan who got it back by waving a fist at the immigration officials at the entry desk.

There is a trade-off, a grand norm, which facilitates international travel. It is the traveller’s unreserved submission to immigration procedures. Those you who travel often know this. Moments before you land into, or depart from, a country, you file the embarkation or departure documentation, and hold your passport and ticket in your hand, ready for stamping by immigration officials.

This is the procedure Miguna submitted to at the Canadian airport where he departed from on his way back to Kenya. He submitted to the same process at the London Airport where he landed to enter Britain, and again to leave Britain, which he famously called, not unjustifiably, the “beast of colonialism.”

The people’s president

The same procedure applied at Paris airport. That can only mean one thing – Miguna suffers inferiority complex before white-skinned immigration officers and superiority complex among fellow African immigration and legal professionals before whom he thinks he can use Kenyan ID as an international travel document. That misplaced sense of importance has no place in a rule of law system.

The tragedy is that very senior Kenyan lawyers and judges including a former Chief Justice, Willy Mutunga, submit themselves into servitude. Lawyers and judges, the so-called “learned friends”, appear mesmerised by the aura of Miguna’s presence in court while others fly to Europe for photo sessions with their hero – one never known for any role in Kenya’s political struggle except the illegal swearing of Raila Odinga as a “people’s president” at noon on January 30, 2018 in the presence of thousands of his supporters in Uhuru Park in downtown Nairobi.

With only limited success, the Kenyatta government tried to block media coverage rather than using the police to prevent the event. The Attorney General and other lawyers of the Uhuru Kenyatta government said the inauguration amounted to treason. Odinga’s oath, according to the media, was “I, Raila Omolo Odinga, do swear that I will protect the nation as people’s president, so help me God.”

Raila sworn to protect the nation as people’s president

Taking us down the slippery path 

Inexplicably, upon his arrival Kenya, he withdrew this civility in favour of belligerence, perhaps aware that some Kenyan judges have a knack for not bothering with the 380 degrees view.

That is how his saga has ended up conflicting all of us. Understandably, we all feel compelled to sympathize with a man who doesn’t want to empathize with himself. All of us, including our eminent judges, lawyers, media and ordinary citizens.

Rules and regulations exist for a reason. In fact, being a good citizen means following procedures without knowing where they came from.  As matters stand now, the Miguna saga has kicked off a dangerous power contest between different arms of government. We are all headed where we shouldn’t be going. After ordering each and every head of department in government to produce Miguna in court and appear in person, it is likely that the courts will order Uhuru and Ruto to appear in court and produce Miguna, or to perpetrate a citizen’s arrest on their departmental heads – and then there will be no one left to order. This can only expose our courts, and all of us, to ridicule.

It is in order to avoid taking your country down this slippery path that citizens are obliged to follow procedures. That is why you fill forms where you want buy property, to take a loan, to take a child to school, to apply for a pension. Ultimately, and finally, on your behalf, a form will be filled to beget your death certificate.

Our submission to these procedures is what makes systems to work. The countries we admire most, including those whose citizenship we acquired for a rainy day, work because their citizens willingly submit to established procedures. Kenya cannot be an exception to satisfy Miguna’s sense of self-importance.

The fact that Miguna is keen on having his issue drive a wedge between the different branches of government shows that he is indeed Kenyan, not a Kenyan. For a Kenyan would rather the baby was given to a fake mother so it can live, rather have it split into two equal parts by the courts. For the courts would have absolutely no qualms doing this.

Miguna’s real identity – Peeling the Mask 

To begin to grasp Miguna’s real identity, you have to hyphenate. He is both a Kenyan-Canadian and a Canadian-Kenyan. None of these identities imbues him with a complete, settling, spiritual principle for either state. He exists in the hyphenation, a half Kenyan and a half Canadian.

As soon as he left Kenya and acquired foreign citizenship, he became a global man, a status that converts one into a bundle of internal contradictions and conflicts, a free spirit without a fixed abode. He was assailed by the curse of immigration. He is at home in Kenya and Canada, but only partly so. When he is in Kenya, he longs for Canada and when he is in Canada, he yearns for Kenya.

This perhaps explains why he lives alone in a palatial mansion in Kenya’s most upmarket neighbourhood when the rest of his family is in Canada. It also probably explains why he is fighting for reforms in both Kenya and Canada; as an activist in Kenya, and as an immigration lawyer in Canada.

Both these personae and practices are driven by the values of universalism and globalization that he has acquired during his sojourn as an immigrant, both of which sit uncomfortably in contradiction with his ethnically particularizing tendencies and localizing politics. Despite his spirited fight to be a Kenyan, he cannot be contained in a small space like Kenya, nor in a large space like Canada.

This is not to say he is God. He belongs to the world and the world is his cage. A world citizen is at least one identity that cannot be denied him; a citizenship he doesn’t need to apply for and one which he cannot change, forfeit or be denied. For every human is granted the will to shout, to wave a fist, to froth or frost in the mouth, to confront the police, indeed to do all the obnoxious things Miguna has been accused of doing, but only in the jungle, where there are no procedures to be followed.

Anybody who has read his book Peeling the Mask on Raila can understand what a selfish and vicious man Miguna is. In the book he displays total disrespect to a man who brought him fame, made it possible to illegally get Kenya passport and ID when no Kenyan could be a dual citizen and how ungrateful one can get. He despises Raila like a jilted lover – a case of the deeper the hate, the deeper the love.

Miguna used Raila to get a Kenyan ID and passport when the law did not allow dual citizenship – courtesy of the late Otieno Kajwang’ who was in charge of immigration department. He relocated to Kenya and joined Prime Minister Raila’s administration as legal affairs advisor but put a signboard on his office door as Permanent Secretary.

If only Miguna could come down to earth.