Kenya’s immigration department bungled the deportation of Jamaican Muslim cleric Abdullah al-Faisal, causing the protests that rocked Nairobi on January 15.
The Muslim protesters’ major grievance was not that the cleric was being deported, but the manner in which he was being treated since his arrest on December 31.
Two weeks — now three weeks at the time of writing— is a long time to hold somebody incommunicado and without due process. It is also a long time to try and try again to deport somebody.
On January 7, Immigration minister Otieno Kajwang’ said the cleric had been deported to the Gambia. “As I speak now, he is in Banjul,” he said. “He requested to be taken there, and after authorities in Gambia agreed to receive him. We did what was required.”
Nigeria was also supposed to have agreed to grant the cleric a transit visa for him to connect a flight to the Gambia. But the deportation flopped.
Nigeria refused to give a transit visa and the Gambian Government told reporters in Banjul that it was “a lie that Abdullah al-Faisal was accepted by the Gambian Government”.
MR KAJWANG’ BLAMED THE MEDIA FOR sending out alarmist reports that portrayed the religious leader in an “alarmist and negative” way. But the minister himself had declared the preacher’s presence in Kenya a security risk.
The anti-terrorism police unit in Mombasa arrested the sheikh minutes after he attended evening prayers at a mosque. ‘‘We are deporting him because of his terrorist history and the fact that he is on the international watch-list,” Mr Kajwang’ said.
Under Section 8 of the Immigration Act, the minister can direct that the presence in Kenya of any foreigner is “unlawful” and order him or her moved to the place from where he came, or to a place in the country to which he belongs, or to any place to which he consents to be moved if the government of that place consents to receive him or her.
The minister may also direct that the foreigner be kept in prison or in police custody until he or she is moved from Kenya, “and while so kept, shall be deemed to be in lawful custody.”
The Immigration Act does not provide for appeal against such an order. All the foreigner can do is challenge the order by way of a judicial review.
So Mr Kajwang’ broke no law. He just made a mess of the deportation. He did not do his homework properly. Major airlines commonly refuse to help with deportations.
Long ago, some leading airlines announced that they would no longer carry people being forcibly moved.
In some countries, airlines accept deportations only because they are under a legal obligation to do so. Under the Kenyan law, there is no such obligation.
Airline captains have the right to refuse to carry a passenger and will do so for security or commercial reasons.
Deportation is always dehumanising and messy. People being deported are commonly chemically restrained, sedated, bound and gagged.
Some have died while being transported. Others have made a big enough fuss at the airport — taking off their clothes, shouting, biting, spitting and upsetting other passengers. Pilots refuse to take in such deportees for security reasons and because other passengers will object.
The German pilots’ association, Vereinigung Cockpit, for example, recommends that pilots ask the deportees if they agree to be transported. If not, the pilot is advised to refuse to transport them.
THE ASSOCIATION EMPHASISES THAT they fear criminal proceedings against the pilot in case of the death or injury of a deportee. The danger of criminal proceedings against the pilot is founded in international law, the Treaty of Tokyo.
Airlines are so opposed to deportation that many countries either have a law to force airlines to take in deportees, or they charter their own planes.
The US has a service, ICE Air, for transporting deportees to their final destinations, primarily to Latin America. The UK now relies on chartered and scheduled flights to deport people.
Kenya’s immigration department, since it could ill-afford to charter a plane to Jamaica, should have the sheikh out of the country through “voluntary departure”. This would have allowed him to leave quietly without stigma, embarrassment or fanfare.
