It has been 22 days since South Sudanese asylum-seeker Morris Mabior Awikjok was arbitrarily arrested in Nairobi and forcefully returned to South Sudan. His forced disappearance, the first prominent case for the Kenya Kwanza administration, raises fundamental questions whether the Government of Kenya remains committed to protecting neighbours fleeing persecution.
Former state officer and open critic of the South Sudanese Internal Security Bureau Director General, Moses Mabior Awijok fled South Sudan for Nairobi over two years ago. On 4 February 2023, a joint operation of a Kenyan police officer and an Anti-Police Terrorism Unit tactical team in the presence of a South Sudanese man in civilian dress reportedly burst in his home and took him, several laptops, and phones away, as his family watched.
Three weeks later, neither Kenyan nor South Sudanese authorities have acknowledged his arrest or presented him in a court of law. Social media reports either claim that he is being held incommunicado in a National Security Service detention facility or more worryingly that he has already been killed while in custody. Unverified media reports in the wake of his arrest suggest that Mabior was the subject of an extradition request by the South Sudanese, copied to INTERPOL offices in Nairobi and Kenya in May last year. The extradition request states he is wanted for “defamation and false information”.
Extradition is a formal legal process of one state surrendering to another, a person accused or convicted of a crime for trial or punishment. The double criminality principle and speciality principle is central in most bilateral or multilateral conventions. A person is not extraditable unless they are suspected of a crime recognisable in both countries. Secondly, the person surrendered can only be tried and punished for the offence stated in the extradition order.
The Contiguous and Foreign Countries Extradition Act (Cap 76) and Commonwealth Countries Extradition Act (Cap 77) provide clear guidelines for suspects being surrendered to another government. While the Attorney General or the Interior Cabinet Secretary are empowered to authorise, a court order or parliamentary assent is required. The commonwealth law does not allow the extradition of suspects for their political beliefs or on discriminatory and inhumane grounds such as their religion, race, or identity.
For non-commonwealth counties, the Interior Minister is required to seek a warrant of arrest from a magistrate and present the criminal suspect in a court of law to be charged. If the magistrate determines, they can commit him to prison or to be extradited. Extradition is reserved for serious crimes, murder, rape, violence, abduction, drug-smuggling and organised crime. Social media posts are not among them.
Questions need to be asked publicly whether Mabior’s arrest complied with any of these conditions. Mabior is not the first tragically. In 1999, Kurdistan Workers’ Party (PKK) leader Abdullah Öcalan was abducted from Kenya to Türkiye. Sentenced to life, he has spent the last two years in absolute isolation. More recently, the Kenyan Government has come under the spotlight for the forceful kidnapping, rendition and disappearance of Ethiopian Samson Teckle-Michael (2021), Nigerian Nnamdi Kanu (2021), South Sudanese Dong Samuel Luak and Aggrey Ezbon Idri (2017). In 2019, the UN Panel on South Sudan concluded that Dong and Aggrey were executed at the NSS training facility in Luri, near Juba.
Mabior’s forceful abduction and disappearance must worry Kenyans and the international community. It directly undermines President Ruto’s public commitment to end enforced disappearances and deepen constitutionalism and the rule of law. It leaves another family distressed and a wider refugee community also frightened that Kenya can no longer provide safety and sanctuary to those fleeing persecution.
Under human rights law, all refugees have the right to protection and freedom from non-refoulement. Furthermore, all arrested suspects have the right to access their family, a lawyer, and a doctor. Mabior has the right to be charged in a court of law, but if there is no internationally recognisable offence, the South Sudanese authorities must immediately release him.
International law demands no less.
This opinion was also published in the weekly Saturday Standard column 25 February 2023 #StandardSettingKE
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