Several Turkish men were ambushed and bundled into cars, along with the 16-year-old son of one of them, apparently by Kenyans.
The boy – and a man who turned out to have British nationality – were released some hours later.
The Ministry of Foreign Affairs announced that four had been ‘repatriated’ on the basis of ‘bilateral instruments’ between the two countries.
And the PS Foreign Affairs told us on Citizen TV that this was a unique, isolated case because Kenya had had an actual request from the Turkish Government and thus had information that was so weighty that the only choice was to send them to Turkey.
It was also an obligation because of our duty of non-interference in another country’s internal affairs, Korir said.
NON-INTERFERENCE IN INTERNAL AFFAIRS
One country should not interfere in another’s elections, should not invade it, and so on – generally, this goes without saying.
Beyond that ‘non-interference’ is an argument made by countries with little regard for their citizens – often complaining about human rights treaties and organisations.
But it is clear in international law that states cannot escape responsibility by claiming that their actions that breach human rights law are solely within their domestic jurisdiction.
Our current topic was not an internal matter. These men had relied on international refugee law for protection from their government.
You might even say that Turkey, by not using normal legal channels, was interfering in Kenya’s internal affairs by asking her to act against the Kenyan Constitution.
THE ABDUCTION
How about the way the Turks were seized? We have seen various videos of people being seized and bundled into cars to be kept perhaps overnight – perhaps never to emerge.
It almost seems that our security forces have seen too many cops and robbers films with dramatic car chases and seizure of alleged criminals in ways that totally violate our Constitution.
SOME BACKGROUND
Turkey’s problem with these men is, apparently, that they are supporters of Fethullah Gulen.
He was (he died last month) a cleric and critic of President Erdogan, and he had been living in the US. He emphatically denied Erdogan’s accusation of being behind a coup attempt in 2016.
He headed a network of education establishments, including in Kenya. In 2016, Kenya refused Turkey’s request to close down the schools in this country. Turkey used to request INTERPOL to help it get Gulen’s supporters arrested but INTERPOL decided this was political so it denied certain assistance.
Turkey seems to have decided to take matters into its own hands. There have been a few attempts to get extradition of alleged Gulen supporters in Kenya.
In 2021, extradition proceedings were started against Gulen’s nephew, Selahaddin, who was in Kenya with his wife.
The nephew got court permission to bring a judicial review case to quash the DPPs decision to start that extradition process. On May 6, the High Court temporarily stopped the extradition process until the judicial review case was decided.
About that time Turkish agents apparently abducted Selahaddin Gulen – his wife had not seen him since May 3. The US long refused to extradite Fethullah Gulen.
Apparently, Turkey has made 800 extradition requests to various countries. More than 100 alleged Gulen supporters have been sent back, although clearly not all through extradition.
Last year, the Parliamentary Assembly of the Council of Europe said, “The Turkish campaign [against Gulenists] has been found to rely on renditions, abuse of extradition proceedings, Interpol Red Notices and anti-terror financing measures, and co-opting other States to deport or transfer persons unlawfully.
THE VICTIMS
These gentlemen were in Kenya legally. They were refugees – in the legal sense.
They had been granted that status by the UN on the basis of their “well-founded fear of being persecuted for reasons of race, reli- gion, nationality, membership of a particular social group or political opinion” in their own country.
This language is used in the Kenyan Refugee Act which also says that no one should be refused entry into Kenya, expelled, extradited from Kenya, or returned to any other country if “as a result they may be subject to persecution on account of race, religion, nationality, membership of a particular social group or political opinion”.
This is the principle known as “non-refoulement” – not sending back a refugee to the place from which they have fled because of persecution.
The only legal basis for removing them from this country would be extradition.
This is the sending of a person in Kenya to another country where they have been charged with a crime (or even convicted but run away).
This is regulated by (in this case) the Extradition (Contiguous and Foreign Countries) Act.
THE RIGHT PROCEDURE
To avoid the obvious risks in simply believing a country that wants a person delivered to them for prosecution, a process through the courts is required by the Act.
For various reasons, there seems to have been no basis for extradition in this case. Extradition only works if Ken- ya has an Extradition Agreement with the country asking for extradition (this might be a broader, many-country treaty, for instance, about dealing with certain types of offences, like drugs).
Then a Gazette notice would apply the Act to that country. Kenya does not seem to have any relevant extradition agreement with Turkey.
Extradition can be carried out only if the crime involved comes within a list in the Act. They are all serious offences, like murder, major physical injury, drugs, robbery, treason, money laundering.
True, when these men arrived in Turkey they were charged with treason. But there is no indication that there had been any actual charges while they were in Kenya.
In fact, PS Korir said on television they had been told the men had committed “subversion” in Turkey.
Subversion is not mentioned as an extradition offence. And, what is more, even in Kenya it does not exist as an offence any more, having been declared unconstitutional by a court.
The formal process begins with a diplomatic representative of the requesting country applying for extradition of the person they want, usually sending the relevant arrest warrant.
The issue then goes to a Kenyan magistrate’s court. This did not, obviously, happen.
The Act says that a person must not be extradited if the offence is political or the court considers that the request has been made to punish him “for an offence of a political character”.
Extradition will not be confirmed if there is reason to suppose the individual will not get a fair trial. And “refoulement” by extradition is also still prohibited.
A WORRYING MINDSET
What we see in this saga, on the part of the police and government, seems to be an impatience with legal procedures.
The police would rather bully, even kill, rather than go through court. And in this case, the suspicion must be that the government assumed that the courts would not approve extradition – the necessary preconditions were not there and some factors, like the political aspect, would work against extradition.
So they just planned to keep the case out of the courts. (It reminds me a bit of the careful planning for a seamless process in the final stages of the (former) Deputy President’s impeachment – leaving no gaps in which the DP could go to court.)
Worse, the attitude seems to be not caring about legal procedures.
As I began to write this, I read a piece about President-elect Trump and his appointees, including, “Welcome to the second coming of Donald Trump. ... he trashes the conventions of how things should be done. You play by his rules. And as Leo, the leader of the Scorpions, tells John Travolta in Grease [a 1978 film]: ‘The rules are there ain’t no rules’.’’ (Alan Rusbridger in Prospect).
Has Kenya got to that stage?
