No ‘rationale’ or ‘justification’ for Kenya’s travel ban

travel ban
05 Sep 2018

Within the first month of the controversial travel ban and its extension to university staff, local media estimated that hundreds of academics had been stopped from leaving Kenya to attend conferences and research related work simply because they did not have presidential permission to travel.

While one academic commentator was quoted as saying the government was ‘the most anti-intellectual’ in many years, timing of the ban could also have had something to do with the government mood over the Supreme Court’s decision to invalidate the August 2017 elections, a month before the ban was announced.

The directive was issued in the name of the head of Kenya’s public service, Joseph Kinyua, who also served as President Uhuru Kenyatta’s chief of state. And whatever provoked Kinyua’s 13 September 2017 ban, the Ministry of Education followed up a week later with its own letter, notifying all university chancellors and principals that ‘there would be no travel outside the country’ without presidential clearance.

Faced with clarity that the ban indeed applied to its members – plus the experience of many academics who by that time had been turned back at the airport boarding gates – the University Academic Staff Union decided to test the ban in court.

Now Judge Enoch Chacha Mwita of the High Court’s constitutional and human rights division has delivered his decision in the matter and the result is not good news for the presidential decree.

Counsel for the university had argued that academics were required to travel outside the country for research and conferences. The presidential directive ‘curtailed their right of movement’. The academics concerned were entitled to constitutional protection from attempts to erode their rights of dignity, equality, expression, movement, education and fair administrative action.

Counsel for the respondents argued, however, that the right to movement was not a right that could not be limited. The circular simply said that ‘clearance’ was first necessary, not that the academics could not travel at all. She claimed there was ‘no proof’ that any academic ‘had failed to travel or been denied the chance to travel’, and said no-one had suffered any prejudice caused by the circular.

Further, since the president was the head of state and of government, he had the constitutional power to ‘direct and coordinate functions of Ministries and Government Departments’.

In his decision, the judge said the right of movement was granted by the constitution and not by the state. It was the state’s duty to respect and protect the fundamental rights in the Bill of Rights. While the right to movement could be limited, any limitations had to be in accordance with the constitution itself, by being reasonable and justifiable in an open and democratic society taking into account ‘all relevant factors’.

The ban, however, did not state the purpose of the limitation on the right to movement. The constitutional demand that limitations on fundamental rights should be expressed in law and be reasonable and justifiable in an open and democratic society ‘cannot be over emphasised’, the judge said.

The circulars announcing the ban ‘do not refer to any law’ but simply state that ‘it has been decided henceforth’ that no government official will travel outside the country without clearance by the President. There was also no explanation of the ‘rationale’ behind the ban, and it was thus not clear whether it was issued for reasons of ‘state security, public health or any other reason’. There was neither explanation nor justification for the circular.

‘Social policies, actions and decisions must not devalue fundamental rights and freedoms (contained) in the Bill of Rights’, and in relation to this issue, the government had not explained why it was necessary to limit the rights of academics. It was not as though they would ‘just walk out of lecture halls and travel out of the country’ without first making arrangements about their classes, but they would obviously let the relevant university authorities know about their travel plans and make appropriate arrangements for while they were away.

Anyone wanting to limit fundamental rights had a constitutional duty to justify this limitation because these rights were ‘sacrosanct’. The rights of the academics who brought the challenge could not be ‘limited through circulars or at whims without complying with constitutional dictates’.

The judge said while the President was to direct and coordinate functions of government, this could not be interpreted to mean that he could limit fundamental rights and freedoms.

‘It is my finding, and I so hold, that the circular does not meet the threshold …. The limitation is neither reasonable nor justifiable in an open and democratic state.’

He therefore found that the circular and the subsequent letter from the Ministry of Education, as far as they applied to university academics, were null and void.

As Kenyan Government authorities have no great reputation for respecting court decisions, that country’s academics will surely be keenly watching which of their colleagues, armed no doubt with a copy of the judgment and maybe even accompanied by a lawyer, will be the first to exercise their constitutional right to freedom of movement, by boarding a plane and freely leaving the country?

See also: Kenyan government compelled to cough up after lengthy delay

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

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