On January 24, 2017, news emerged that two South Sudanese activists aligned to the SPLM-IO disappeared in Nairobi, reportedly abducted by South Sudanese agents in collaboration with members of Kenya’s security services.
Samuel Dong Luak, a lawyer and former deputy chair of the SPLM-IO Committee for Constitutional Affairs, had fled South Sudan in 2013 after facing death threats. He parted with friends at 9 p.m. on January 23 to make his way to one of Nairobi’s residential estates—but never made it home. Aggrey Idri Izbon, the chair of the SPLM-IO Committee on Humanitarian Affairs, was taken by yet unknown individuals while jogging early the next morning.
Following the intervention of Amnesty International, the UN Human Rights Commission, and the families of the victims, the Nairobi High Court initially ordered Kenyan police to investigate the disappearances. The Court subsequently issued conservatory orders on January 25 calling on the Department of Immigration to desist from extraditing them to South Sudan, where they were likely to face torture and ill treatment.
When it emerged in a subsequent hearing that South Sudanese officials may have collaborated with Kenyan agents, the Court in a second ruling ordered the arrest of John Top Lam, the military attaché at the South Sudanese Embassy who had been implicated in the disappearance. The family of Luak claimed in affidavits filed in court that the two were indeed in the custody of Kenyan intelligence officials, and that Top Lam had called Luak’s family claiming to know where the disappeared men were and demanded $10,000 to facilitate their release. In an affidavit filed with the High Court, Top Lam denied the family’s claims.
In its ruling handed down on February 22, 2017, the Court refused to issue an order of habeas corpus (to have the two South Sudanese brought before the court), having found that the disappearance of Luak and Izbon was a criminal act of abduction, which in all likelihood was “connected with the fluid political situation in South Sudan….” In the Court’s view, evidence placed before it did not implicate Kenyan police or intelligence, and that “on the face of it, the Kenyan government had nothing to gain from the disappearance.” The police were ordered to continue with the investigation.
Numerous reports accuse the government in South Sudan of serious human rights violations, some of which target civil society actors and activists. As the clampdown on activists, journalists, and members of the opposition in South Sudan picks up pace, the government appears to be ratcheting up its anti-opposition activities in the near abroad, in collaboration with authorities in those countries. A few weeks before this incident, SPLM-IO spokesperson James Gatdet was arrested by the Kenya authorities and deported to Juba on November 3, 2016, attracting widespread condemnation. He is reportedly held incommunicado by the dreaded National Security, an intelligence agency that has acquired a reputation for torture, extra-judicial killings and disappearances of anti-regime activists.
Rendition and international law
The Kenyan cases have created a multitude of legal concerns. From the perspective of international law, questions pertain in particular to possible violations of international obligations.
Under international law, refugees enjoy the right of non-refoulement, an absolute protection, in terms of which host states are obliged not to send refugees back to the state of origin where they may face harm.
In particular, article II (3) of the African Union’s Convention Governing Specific Aspects of Refugee Problems in Africa of 1969 (AU Convention) provides that:
No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened … (emphasis added)
This rule has acquired the reified status of customary international law and is beyond dispute. This means that a majority of states believe this rule to regulate their behavior as law and they need not have acceded to either of the two principal treaties on refugees that codify it to be bound.
To be certain, Kenya is bound by both the 1951 UN Convention Relating to the Status of Refugees, as well as the AU Convention cited above. Within the African context, the latter in particular expands the grounds on which an individual may be regarded as a refugee. While the main reason for the granting of refugee status under the 1951 Convention is persecution, the AU treaty recognizes armed conflict and internal disturbances as key generators of refugees in Africa. Individuals fleeing war, such as Luak, Idri, and Dak, qualify as refugees, irrespective of whether formal recognition had been accorded by the Kenyan authorities following a status-determination process that often takes years to conclude.
The refoulement of persons protected by international law, therefore, is a violation of international law by Kenya. Extraditions that are unsupervised by the court also violate the rules of due process, which apply to criminal prosecution, as they do with equal force to extradition proceedings, which are civil in nature.
The notion of “executive extradition orders” rumored to have been issued in both cases does not in any case invalidate a government’s obligations under international law. An individual facing removal to another country must be able to contest the process before a judge and have the opportunity to raise other relevant concerns. Abductions and rendition, whether clandestine or not, deny the subject the right to have a judge oversee the extradition, and to address human rights concerns from the subject.
Outside the context of refugee rights, a legal practice has emerged where courts around the world have invalidated extradition requests to countries where the subject—though facing legitimate legal proceedings—may be subject to torture, inhuman and degrading treatment, or the death penalty.
Legal obligations of security sector professionals
The state is obliged under international law to respect, protect, and fulfill rights to which citizens and those residing on its territory are entitled. These obligations mandate states to create mechanisms of accountability of the security sector and its members. On the basis of national law enacted under this mandate, individual security officers (including intelligence) are subject to prosecution, disciplinary action (including dismissal), and lawsuits for compensation from victims of violations. Prosecutions and lawsuits form part of a larger array of tools for civilian oversight of the security sector that includes petitions, social audits, and parliamentary oversight.
The conduct of the Kenyan and South Sudanese agents implicated in these cases not only falls afoul of international law pertaining to refugees and due process but is also not in keeping with expected levels of professionalism, which pertains not only to adherence to the law but also ethical standards of behavior. Allegations of demands of ransom and bribery of foreign officials and agents raise an additional layer of troubling concerns regarding unethical behaviors in the security sector. There is no doubt that such conduct is criminal. However, when it occurs, it also lowers the sector’s esteem in the eyes of the public and ultimately undermines the security of citizens and stability of the state in general.
Requests for the rendition of individuals should be done in conformity with international law and national law of the requested states. At the very minimum, these requests must be subject to judicial supervision. This case underscores the role of the courts as an important instrument for holding the security sector to account for its actions. Making provisions for effective remedies for violations including prosecution of crimes while strengthening oversight enhances respect for human rights, promotes stability in the region, and augments the security sector’s reputation for abiding by the rule of law and professionalism.
Africa Center Expert
Godfrey Musila, Research Fellow
- UNHCR, “Note on Non-Refoulement Submitted by the High Commissioner,” Document No. EC/SCP/2, August 23, 1977.
- Oluwakemi Okenyodo, “Governance, Accountability, and Security in Nigeria,” Africa Center for Strategic Studies, Africa Security Brief No. 31, June 21, 2016.
- Émile Ouédraogo, “Advancing Military Professionalism in Africa,” Africa Center for Strategic Studies, Research Paper No. 6, July 31, 2014.