Implications of James Dak’s 2016 deportation to South Sudan by the Kenyatta government in violation of international refugee law

 Mark AW Deng
 LLB (James University) LLM PhD (Queensland)
 McKenzie Postdoctoral Research Fellow, Melbourne Law School, University of Melbourne, Australia
 http://orcid.org/0000-0001-6810-6221
 This email address is being protected from spambots. You need JavaScript enabled to view it.

 Edition: AHRLJ Volume 24 No 2 2024
 Pages: 659 - 683
 Citation: MAW Deng ‘Implications of James Dak’s 2016 deportation to South Sudan by the Kenyatta government in violation of international refugee law’ (2024) 24 African Human Rights Law Journal 659-683
 http://dx.doi.org/10.17159/1996-2096/2024/v24n2a11
 Download article in PDF

Summary

This article discusses James Gatdet Dak’s 2016 deportation from Kenya to South Sudan where he was imprisoned for two years for several offences he allegedly had committed in relation to the civil war in that country. It provides an understanding of the circumstances that led to deportation and violation of Dak’s right to refugee protection. The article makes three principal arguments. First, the Kenyatta government carried out the deportation in violation of international and regional refugee laws. Particularly, the Kenyatta government violated the principle of non-refoulement, which is now considered to have become a peremptory norm of international law from which no derogation is permitted. Second, Dak had suffered persecution at the hands of South Sudan’s authorities because of his political opinion. Third, the injustice Dak had suffered entitles him to a remedy from the Kenyan government, which he could potentially pursue through the African Commission on Human and Peoples’ Rights’ complaint process. Although a considerable period has elapsed, the African Commission’s flexible approach to the relevant admissibility criterion should be able to accommodate his complaint.

Key words: refugees; deportation; violation; Kenya; South Sudan; African Commission; delay

1 Introduction

An event that struck at the heart of international refugee law occurred in Kenya in 2016. The Kenyatta government deported a refugee, James Gatdet Dak, back to South Sudan – his country of nationality – after having granted him refugee protection by issuing him with the applicable visa in 2015. Dak was arrested on arrival in South Sudan and imprisoned for two years for several offences he allegedly had committed in relation to the 2016 violence outbreak between the government of South Sudan and the Sudan People’s Liberation Movement-In Opposition (SPLM-IO). As will be discussed more fully below, the offences ranged from ‘treason’, ‘publishing or communicating false statements prejudicial to Southern Sudan’ to ‘undermining the authority of or insulting the President [of South Sudan]’.1

The Kenyatta government was no more than equivocal in explaining what prompted the deportation. In a press statement issued immediately after Dak had left Kenya, the government spokesperson, Eric Kiraithe, simply stated that Dak had become ‘an inadmissible person’ in Kenya and, as a result, his visa was cancelled, making him liable to deportation.2

Whatever wrong Dak may have committed, it is clear that the deportation was carried out in violation of Kenya’s protection obligations to asylum seekers and refugees. Kenya is party to the 1951 United Nations (UN) Convention Relating to the Status of Refugees,3 and its 1967 Protocol Relating to the Status of Refugees.4 Kenya is also party to the 1969 Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa.5 These treaties were given effect through the enactment of Kenya’s Refugees Act, 2006, which was repealed by the Refugees Act, 2021.6 Thus, the treaties were binding on the Kenyatta government.

This article discusses James Gatdet Dak’s 2016 deportation from Kenya to South Sudan, providing an intersection of international law and domestic law of both Kenya and South Sudan. It is organised in four parts. The first part discusses the circumstances around the deportation. The second part provides an overview of the refugee protection regime and discusses Kenya’s refugee protection obligations under the Refugee Convention and its Refugee Protocol, as well as the OAU Refugee Convention. The point here is to demonstrate that the Kenyan government acted in violation of its refugee protection obligations to Dak in forcefully removing him from its territory. In particular, the Kenyatta government violated the non-refoulement principle enshrined in the Refugee Convention, which is now regarded as jus cogens, or a peremptory norm of international law from which no derogation is permitted.

The third part discusses the persecution Dak had suffered at the hands of South Sudan’s authorities. This is evidenced in large part by the fact that he was imprisoned for two years for offences that were likely politically motivated (not to mention the appalling conditions of the Juba Blue House prison in which he was placed).7 The offences were likely politically motivated in the sense that Dak was affiliated with the SPLM-IO and had been openly critical of the government of South Sudan since the civil war first broke out in 2013.

The final part looks at the question of what recourse, if any, Dak may have against the Kenyan government for violating his refugee protection right. There are two options to consider. The first regards local remedies that Dak may seek from Kenya’s immigration and administrative bodies and courts. The second invokes the possibility of Dak bringing a complaint before the African Commission on Human and Peoples’ Rights (African Commission) against the Kenyan government. The article also serves analytical purposes, providing an understanding of the vague circumstances that led to deportation and violation of Dak’s refugee protection right.

2 Circumstances around the deportation

James Gatdet Dak is a national of South Sudan and is a journalist by trade. He joined the SPLM-IO in 2013 following the outbreak of the civil war in South Sudan. He served in the SPLM-IO as Dr Riek Machar Teny’s press secretary (Dr Teny is the leader of the SPLM-IO).8

Dak escaped to Kenya with his family in 2013 after having survived the alleged targeted killing of the members of his Nuer ethnic group by the government of South Sudan.9 The Kenyatta government granted him protection and he was registered as a refugee in 2015.10 He returned to Juba with Dr Teny in 2016 for the formation of the first transitional government of national unity mandated by the Agreement on the Resolution of the Conflict in the Republic of South Sudan, 2015.11 A few weeks later he returned to Nairobi to be with his family.12

In early November 2016 the Kenyan police officers went to his residence in Nairobi and arrested him. He was deported to South Sudan the following day. The government spokesperson, Eric Kiraithe, held a press conference immediately after Dak’s departure, stating that ‘[Dak] became an inadmissible person, so we cancelled his visa and he was taken to his country of origin’.13

The official fell short of clarifying how Dak became ‘an inadmissible person’ in Kenya, leaving room for speculation. For example, it was alleged that Dak’s deportation had to do with an opinion he published on social media in which he commended the sacking of General Johnson Ondieki, the Kenyan military officer who was in charge of the UN peacekeeping forces during the formation of South Sudan’s unity government in 2016.14 General Ondieki was sacked for failing to protect civilians during the J1 Incident (J1 is the name of South Sudan’s state house and it was where the incident occurred). The sacking of General Ondieki reportedly angered the Kenyatta government for multiple reasons. One is that the dismissal was unfair as General Ondieki had been in the job for just three weeks before the J1 Incident.15

It is also possible that Dak was deported at the request of the South Sudan authorities. Immediately after the J1 Incident, the authorities in South Sudan named him as one of the people who had disseminated false information that led to the incident (clashes between the government and the SPLM-IO forces). This accusation was based on a text message Dak sent to his colleagues in the SPLM-IO during a meeting of the presidency at the state house.16 In the text message, which he also posted on Facebook but removed it some time after that, Dak informed his colleagues that the meeting was a set-up to arrest Dr Teny.17

The SPLM-IO forces, which were stationed in Juba, also received this news. A large number of soldiers was sent to the state house to rescue Dr Teny.18 On arrival, they forcefully attempted to enter the state house but the presidential guards denied them access.19 They felt frustrated and started shooting, and a fierce fight ensued.20 Literally, the matter turned into a shoot-out. A total of 230 lives were lost, most of whom (190) were from the SPLM-IO.21

A few hours after the situation was brought under control, President Kiir and his two Vice-Presidents22 emerged and jointly gave a press conference. They stated that they had no idea about what had happened and called for calm in the nation, as well as announcing an investigation into the matter.23 Dr Teny himself spoke at that press conference and condemned the incident, calling it ‘an interruption’ of the peace process.24

Dr Teny and his colleagues in the SPLM-IO strongly denied that the text message was the cause of the J1 incident, stating the government had concocted the situation to derail peace. One thing that is clear, however, is that the Kenyatta government acted in disregard of its obligations in expelling Dak from its territory without a valid reason.

3 Refugee protection regime: An overview

The problem of refugees first came to the attention of the international community in the post-World War II era.25 In response, the League of Nations (a precursor to the UN) adopted a number of instruments.26 However, these instruments did not resolve the problem of refugees as they were intended to deal only with refugee problems from specific countries on a temporary basis.27 A more comprehensive international instrument, defining the ‘legal status of refugees’, as such, was needed.28 This saw the adoption of the Refugee Convention in 1951. The Convention defines a refugee broadly as a person who

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or is unwilling to avail himself of the protection of that country.29

The Refugee Convention covered only the refugee crises existing at the time of its adoption.30 This suggests that the state parties did not want to bind themselves with indefinite protection obligations to refugees. As the refugee problem continued to escalate, as endless violent conflicts continued to displace more and more people around the world, it became necessary to extend the application of the Refugee Convention. This saw the adoption of the 1967 Refugee Protocol under which states agreed to extend their protection obligations under the Refugee Convention to new refugees but without the 1951 dateline.31

Importantly, article 33(1) of the Refugee Convention enshrines non-refoulement – an inviolable principle of international law prohibiting all state parties from returning a refugee to a territory where they may face persecution:

No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

There are, of course, exceptions to these conventions, that is, grounds on which a state may expel a refugee from its territory.32 These relate to security risks a refugee poses to the host country, for example, having been convicted of a serious crime and the potential to reoffend.33 These grounds, however, are subject to non-refoulement, meaning that a state would be barred from expelling a refugee if there is a possibility that the expulsion would result in a risk of harm or torture.34

3.1 Kenya’s obligation to protect refugees

Kenya is party to the Refugee Convention and its Refugee Protocol. Both documents have been incorporated into Kenya’s domestic law through the enactment of the Refugees Act, 2021. The Refugees Act was first enacted in 2006 but it was repealed in 2021.35 The new Act received presidential assent on 17 November 2021 and took effect on 21 February 2022.36 All the claims or liabilities that arose under the previous Act are enforceable against the relevant authorities under the current Act.37 In all likelihood, the revision of the Act was needed to give effect to articles 2(5) and (6) of the Constitution of Kenya, dealing with the incorporation of international treaties into Kenya’s domestic law. By the operation of these constitutional provisions, Kenya is considered to have moved from a dualist to a monist state.38

Section 24 of the Refugees Act, 2021 makes clear Kenya’s protection obligations to refugees:

1. Any person entering Kenya to seek asylum shall make his or her intention known immediately upon entry or within thirty days by reporting to the nearest reception centre or the nearest government administrative office.

2. Where a person is lawfully in Kenya and is subsequently unable to return to his country of origin for any of the reasons … the person shall, prior to the expiration of his lawful stay, present himself before an appointed officer and apply for recognition as a refugee, in accordance with the provisions of this Act.

Kenya has also ratified the 1969 OAU Refugee Convention. Article II of the Convention stipulates the member states’ refugee protection obligations:

1. 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 for the reasons set out in Article I, paragraphs 1and 2.

2. Where a Member State finds difficulty in continuing to grant asylum to refugees, such Member State may appeal directly to other Member States and through the OAU, and such other Member States shall in the spirit of African solidarity and international co-operation take appropriate measures to lighten the burden of the Member State granting asylum.

It is indisputably clear that the Kenyatta government owed protection obligations to Dak. As mentioned at the outset, Dak engaged Kenya’s protection obligations in 2015 and went through all the legal procedures provided under the Refugees Act, 2006 to obtain his refugee protection visa. He was living in Nairobi as a peaceful and law-abiding person – at least the Kenyatta government provided no evidence that he posed a risk to Kenya’s national security and safety to warrant his forceful removal, namely, to invoke the exceptions to the refugee conventions. He was not even given a written notice before his visa was cancelled as the Refugees Act, 2006 required.39 He also was not given an opportunity to be heard, to which he was entitled under both the Refugees Act, 2006 and the Constitution of Kenya.40

In short, the Kenyatta government violated its protection obligations to Dak, both in terms of cancelling his visa without a valid reason and not affording him an opportunity to make representation. Consequently, it also violated non-refoulement, which is now regarded as a norm of customary international law and as having acquired a jus cogens status, meaning that states are not at liberty to derogate from it under any circumstances.

3.2 Non-refoulement as a norm of customary international law

First, it may be useful to have some understanding of customary international law. Customary international law has been defined as a ‘law derived from the consistent conduct of states acting out of the belief that the law required them to act that way’.41 In other words, it is a law based on states’ consent expressed through practice. This view is reflected in the Statute of the International Court of Justice (ICJ) (Statute). For example, article 38 of the Statute stipulates that, in adjudicating disputes between states, the ICJ shall apply

1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
2. international custom, as evidence of a general practice accepted as law;
3. the general principles of law recognized by civilized nations.

In the famous North Sea Continental Shelf cases,42 in which the parties requested the ICJ to determine the rules of international law applicable to their delimitation disputes, the ICJ interpreted article 38 of the Statute as containing two principal elements of customary international law, namely, state practice (what states do, sometimes referred to as the objective element); and opinio juris, being the recognition and acceptance of practice by the community of nations (the subjective element). The Court found that, although there have been cases where states had delimited their boundaries using the equidistance method, such practice (opinio juris) could not be established in the present case. It explained how state practice and opinio juris give rise to the customary international rule:43

Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, ie, the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis.

In short, a norm becomes customary international law if states have accepted it and abide by it.

The principle of non-refoulement is considered a norm of customary international law on the basis that it is enshrined in a number of international conventions that states have ratified.44 These include the Refugee Convention and its Refugee Protocol, the Convention against Torture (CAT),45 and the International Convention against Enforced Disappearance.46 In addition, the UN General Assembly has passed numerous resolutions in which it has consistently reemphasised the fundamental importance of non-refoulement.47 The General Assembly’s resolutions may not be binding on states, but they certainly are relevant considerations in determining the ‘existence or emergence of opinio juris’.48

Perhaps most important, conventions are now understood as ‘norm-creating’ rules. In the North Sea Continental Shelf case, for example, the ICJ stated that conventions no doubt are ‘norm-creating’ as they imply state practice and opinio juris. The Court noted that Denmark and The Netherlands had argued that

[e]ven if there was at the date of Geneva Convention no rule of customary international law in favour of equidistance principle … such rule has come into being since the Convention, partly because of its own impact, partly on the basis of subsequent state practice – and that this rule, being a rule of customary international law binding on all [parties], should be declared applicable to the delimitation of the parties’ respective continental shelf areas in the North Sea.49

The Court further stated that the Convention (the Geneva Convention) ‘has passed into the general corpus of international law, and is now accepted as such by the opinio juris’.50 In what perhaps is the most authoritative part of the judgment on this issue, the Court stated: ‘There is no doubt that this process [referring to the process by which conventions are adopted] … constitutes one of the recognized methods by which new rules of customary international law may be formed.’51

There also is a wealth of scholarly opinion supporting the view that non-refoulement has passed into the realm of customary international law, thereby binding all states. For example, Lauterpacht and Bethlehem, in their 2003 report on the ‘scope and content of … non-refoulement in international law’, found that non-refoulement has a treaty-based norm-creating character and enjoys ‘widespread and representative support’.52 They concluded on that basis that ‘it must be regarded as a principle of customary international law’.53 Similarly, Costello and Foster, investigating this very same issue, concluded that there is strong evidence, from widespread state practice and opinio juris, pointing ‘to the establishment of non-refoulement as a norm of customary international law’.54

The recognition of non-refoulement as a norm of customary international law is rendered absolutely necessary by the fundamental importance of the rights and values it protects, especially for the most-at-risk members of the human community. This understanding raises an important question, namely, whether non-refoulement has also attained the status of jus cogens (norms from which no derogation is permitted), or whether it remains a jus dispositivum (a law subject to the discretion of states).55

3.3 Is non-refoulement a jus cogens norm?

The term jus cogens (or ius cogens), sometimes referred to as a peremptory norm, is Latin and means ‘coercive law’.56 It is derived from the idea central to ‘Roman law that certain legal rules cannot be contracted out, given the fundamental values they uphold’.57 This idea has been accepted by the international community of nations, making jus cogens a core principle of the international legal regime. This recognition is most evidenced in article 53 of the Vienna Convention on the Law of Treaties (VCLT):

A treaty is void, if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purpose of the present convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole, as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

In addition, there are a number of international conventions that are regarded as enshrining jus cogens principles. These include those prohibiting genocide, crimes against humanity, war crimes,58 torture59 and slavery.60 These acts are treated as imposing non-derogable obligations on states.61

The prevailing view is that non-refoulement has attained the status of jus cogens norms. In its series of declarations, for example, the Executive Committee of the High Commissioner’s Programme (Executive Committee) has stated that non-refoulement is progressively gaining a jus cogens status.62 This is most explicit in its General Conclusion on International Protection (GCIP) 79 which states, in part, that ‘non-refoulement is not subject to derogation’.63

The ICJ’s position remains less clear on this matter. However, some of its decisions have been interpreted as recognising non-refoulement as a jus cogens. One such decision is the Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) in which it stated:64

The prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens) … That prohibition is grounded in a widespread international practice and on the opinio juris of states. It appears in numerous international instruments … and it has been introduced into the domestic law of almost all states; finally, acts of torture are regularly denounced within national and international fora.

It has been argued that since non-refoulement shares certain features with the prohibition of torture, it should be accorded the same jus cogens status.65 Strong support for this argument can also be found in the decisions of regional judicial bodies. (Regional jurisdiction can be relevant to international legal obligations in many ways. For example, for an international custom to develop, it must involve all of the major regions of the world.)

The European Court of Human Rights (European Court), in particular, has given a persuasive opinion on why non-refoulement has the same status as jus cogens. This is most evident in its 2012 decision of Hirsi v Italy.66 This case concerned an application brought by 24 applicants (11 Somali nationals and 13 Eritrean nationals) claiming that their transfer to Libya by Italian authorities violated article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms and article 4 of its Protocol 4.67 The applicants were basically alleging a violation of non-refoulement.

In a lengthy judgment analysing applicable human right instruments, both domestic and international, the European Court upheld the applicants’ claim. The decision was hailed as historic and a huge success for refugees and international human rights organisations.68 On non-refoulement, the Court elaborated:69

The prohibition of refoulement is a principle of customary international law, binding on all states, even those not parties to the United Nations Convention Relating to the Status of Refugees or any other treaty for the protection of refugees. In addition, it is a rule of jus cogens, on account of the fact that no derogation is permitted and of its peremptory nature, since no reservations to it are admitted.

In support of the European Court’s decision is persuasive scholarly opinion. Allain, for example, has argued strongly that ‘non-refoulement is … a norm which cannot, in any circumstances, be overridden. All states are bound to respect the obligation not to refoule individuals … either unilaterally, bilaterally or multilaterally.’70 Costello and Foster hold very much the same view:71

Much of th[e] evidence … leads to the conclusion that [non-refoulement] is ripe for recognition as a norm of jus cogens, due to its universal, non-derogatory character. In other words, it is a norm accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted.

The main insight from this body of opinion is that non-refoulement is now recognised and accepted as a norm of customary international law and as having acquired a jus cogens status. Non-refoulement is provided for in Kenya’s 2021 Refugees Act, as follows:72

1. No person shall be refused entry into Kenya, expelled, extradited from Kenya or returned to any other country or be subjected to any similar measure if, as a result of such refusal, expulsion, return or other measure, such person is compelled to return to or remain in a country where –

1. 1. the person may be subject to persecution on account of race, religion, nationality, membership of a particular social group or political opinion; or
   2. the person’s life, physical integrity or liberty would be threatened on account of external aggression, occupation, foreign domination or events seriously disturbing public order in part or whole of that country.

2. The benefit of subsection 1 may not, however, be claimed by a refugee or asylum seeker whom there are reasonable grounds for him or her being regarded as a danger to the national security of Kenya.

The implication for Kenya is that, since non-refoulement lies at the heart of its Refugees Act, the Kenyatta government, in deporting Dak on unjustifiable grounds, violated non-refoulement as a jus cogens principle of international law from which no derogation is allowed. The Kenyatta government was determined to deport Dak to the point that it was unwilling to consider other options. For example, it was reported that Dak pleaded to be given some time to seek admission into another country73 – a right granted by the Refugee Convention74 and the OAU Refugee Convention.75 In addition, a number of leading international human rights organisations, including Amnesty International and the United Nations High Commissioner for Refugees (UNHCR), intervened in an attempt to stop the deportation, arguing that Dak could face severe persecution in South Sudan – all to no avail.76 However, this is not an isolated case. Kenya’s country reports show that the Kenyan government has consistently failed to ensure adequate protection for refugees and asylum seekers on its shores.77

4 South Sudan v James Gatdet Dak: A politically-motivated case?

Immediately after arriving in South Sudan in 2016, Dak was arrested by the National Security Service personnel and was kept in prison for two years without having been convicted by a court of law. (The NSS has power to arrest a person with or without a warrant, depending on the nature of the offence committed or suspected to be committed.)78 In February 2018 Dak was brought before the High Court of South Sudan charged with treason, ‘sedition’,79 and undermining the authority of or insulting the President of South Sudan.80 The case has not been made public as South Sudan’s courts have yet to develop digital means of recording and reporting cases.

4.1 Treason

Treason is a serious offence against the state in South Sudan. This is provided in section 64 of the Penal Code Act, 2008 (Penal Code). Section 64(1) of the Penal Code proscribes treason as an offence against South Sudan, punishable by death or life imprisonment. Section 64(2) specifies the elements of treason, which include overthrowing the President of South Sudan or conspiring with a foreign government to invade South Sudan. Section 64(3) provides for what may be taken as a lawful means by which a citizen can initiate certain actions intended to improve the system of governance.

The Court found Dak guilty of treason under section 64(2) of the Penal Code, that is, that he engaged in acts that were intended to overthrow President Salva Kiir Mayardit.81 He was sentenced to death by hanging along with other prisoners, but the President intervened and pardoned them as part of his effort to restore peace in the country.82 However, it is highly unlikely that the case of treason against Dak was proven or provable. This essentially was about the J1 incident which, as previously noted, has remained a subject of contention between the government83 and the SPLM-IO.84 In light of the politics involved in the case, it is difficult to see how the Court could have been satisfied beyond reasonable doubt that Dak had committed treason.

4.2 Sedition

It is an offence under section 75 of the Penal Code to publish or communicate false information that can cause public disorder or violence, among other things. This offence attracts a maximum penalty of 20 years’ imprisonment.

Dak was charged with sedition based on the comment he published on social media in July 2016 and was sentenced to 20 years’ imprisonment.85 As mentioned at the outset, the comment was taken to be one of the series of events that sparked the J1 Incident:86

BREAKING NEWS: Fighting erupted inside J1 ... The President and his commanders attempted to arrest the First Vice-President, Dr Riek ... This came after the President called for a meeting in his office with [his two Vice-Presidents]. This turned out to be a setup to arrest and possibly to harm Dr [Riek]. Fortunately, Dr [Riek’s] bodyguards have managed to fight vigorously and rescued Dr [Riek]. He is now safe!

Nothing in this text has the effect of inciting violence. Dak was simply reporting what was already taking place at J1. What is more, the comment comes within the right to ‘freedom of expression and media’ provided in the Transitional Constitution of the Republic of South Sudan.87 It is true, of course, that the government only gives lip service to freedom of expression.

4.3 Undermining the authority of or insulting the President

Finally, the Penal Code makes it an offence to undermine the authority of or insult the President of South Sudan.88 Basically, it criminalises criticism of the President, which is what is dubbed as making a false statement that may cause ‘hostility towards’, or ‘hatred, contempt or ridicule of … the President’.89 Dak was sentenced to one year’s imprisonment for insulting the President.

This article argues that insulting the President should not be prescribed as a legal offence in South Sudan for two principal reasons. First, the President of South Sudan is a political leader who makes decisions that affect the lives and interests of the South Sudanese people. As such, every South Sudanese is entitled to have a say in every political decision the President makes. Having a say in the President’s decisions can lead to insult or criticism. In fact, insults are inevitable in the generally heated political discussion. To shield the President’s decisions from being questioned or criticised is to deny freedom of expression and to ultimately hinder accountability.

Second, to regard the President of South Sudan as immune from public criticism is to place him above the law and politics. The President as a political leader is not the fountain of justice and his dignity cannot be protected by law. Lese majeste laws – laws protecting the dignity of a monarch – with which the Penal Code shares similarities, have no place in protecting the political executive from criticism.

However, even if these offences were sufficiently proven, Dak would still have been covered by the CoH agreement90 signed between the government and the rebel groups.91 Article 9(2)(c) of the CoH, for example, requires all the parties to the conflict to release the ‘prisoners of war [and] all political prisoners and detainees’. Dak was a political prisoner within the meaning of article 9(2)(c) of the CoH agreement. A political prisoner, as defined by Amnesty International, is ‘a member or suspected member of an armed political group who has been charged with treason or subversion’.92

The violation of Dak’s refugee right, the pain and suffering he endured while in prison in South Sudan, and the embarrassment of having been treated like a criminal raise the question of what remedy he might be entitled to from the Kenyan government.

5 Could Dak be entitled to any remedy from the Kenyan government?

This part examines the possibility of exhausting remedies under Kenyan law, and the potential for Dak to successfully submit a communication to the African Commission. Submitting a complaint to the African Commission is possible because Kenya has ratified the African Charter on Human and Peoples’ Rights (African Charter).

The process under the African Charter is that anyone seeking redress at the African Commission must first exhaust local remedies.93 There are important reasons for this, one of which is to give a respondent state the opportunity to rectify the alleged violation.94 Another reason is that domestic courts are well placed to undertake a ‘fact-finding’ task, although in authoritarian states it is difficult for courts to investigate governments’ actions and to require governments to rectify their own violations of laws or human rights.95

The African Court on Human and Peoples’ Rights (African Court) is also a potential legal avenue for Dak in seeking remedies from the Kenyan government. The African Court was established in 2006 pursuant to article 1 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (African Court Protocol) as a judicial arm of the African Union (AU). It has jurisdiction over all cases and disputes arising under the African Charter, the African Court Protocol, and other human rights instruments, and referred to it by the parties.96 Although Kenya has also become a state party to the African Court Protocol, and thus falls under the jurisdiction of the African Court, it has not made the declaration to allow direct individual access to the Court. Therefore, any submission by Dak would have to go through the African Commission.

It should be noted that, while South Sudan has ratified the Refugee Convention and its Protocol, as well as the OAU Refugee Convention,97 no action against it is likely to succeed. This is because South Sudan ratified these conventions almost two years after Dak was deported, meaning that they would not apply retroactively.98 Also, given that Dak avoided death in South Sudan only through a presidential pardon, it would probably not be appropriate for him to consider taking legal action against the government of South Sudan, even though his conviction remains questionable. Another factor is that courts in South Sudan are not in a position to entertain an application of this kind. For one thing, they lack judicial independence, especially when it comes to matters involving the government.99

5.1 Exhausting remedies under Kenyan law

As Dak’s refugee protection visa was cancelled on unspecified grounds, making him immediately liable to deportation, he could, as a first step, seek a review of the decision of Kenya’s Commissioner for Refugee Affairs. As noted previously, all the claims that arose under the repealed Refugees Act, 2006 can be made under the Refugees Act, 2021.100 The Refugees Act grants the right to appeal the decision of the commissioner to the Refugee Status Appeals Committee.101 If his application is unsuccessful, he could appeal to the High Court of Kenya.102 The Court has jurisdiction over violations of rights contained in the constitutional Bill of Rights.103 An example of these rights is ‘fair hearing’ which was denied to Dak notwithstanding being one of the key principles in the Kenyan Constitution and the International Bill of Human Rights, to which Kenya adheres.104

However, this option – appealing to the Refugee Status Appeals Committee or the High Court of Kenya – has no prospects of success because of the lapse of time. Appeals have to be made within 30 days of the cancellation of the refugee protection visa.105 It is unlikely that the High Court or any other Kenyan court would accept an application from Dak brought under the Refugees Act outside the permitted timeframe.

In terms of the types of local remedies that could be awarded to Dak if the Appeals Committee or the High Court of Kenya were to review his case, the Refugees Act is silent. However, there are two other possible local remedies. The first could be a reinstatement of Dak’s refugee status – that is, to be regranted a refugee protection visa – although the possibility of this is uncertain given that South Sudan has gained relative stability. The second could be a common law remedy, such as financial compensation for the violation of his human right and the suffering he endured as a result.106

Given that the time for seeking a review under the Refugees Act has long expired, the only option available to Dak might be to take the matter to the African Commission.

5.2 Lodging a complaint with the African Commission

The African Commission was established by the African Charter to protect and promote the human rights of the African people.107 It serves as a quasi-judicial body along with African Court. As a quasi-judicial body, the Commission’s decisions on communications are not legally binding on state parties.108 As such, it relies on the goodwill of state parties for the implementation of its decisions. However, the Commission does take it upon itself to follow up with a respondent state to ensure that its decision (recommendation) is implemented.109

There are admissibility requirements that must be met to file an application with the African Commission. These requirements are contained in article 56 of the African Charter. The two most relevant requirements are that local remedies must be first exhausted, as discussed, and that the application must be filed ‘within a reasonable period from the time local remedies are exhausted, or from the date the Commission is seized of the matter’.110

Unlike other regional conventions,111 the African Charter takes a flexible approach to the submission of complaints. As Viljoen explains, there are factors favouring flexibility when assessing delay in submission, such as the complainants not knowing their rights under the African Charter or the existence of the African Commission; their particular circumstances such as being in detention and not able to submit a complaint on time; and a delay on the part of domestic courts in determining cases involving local remedies.112 These reasons are consistent with the African Charter’s overarching objective to ensure justice and fairness as a human rights instrument.

However, in recent times the African Commission has adopted a more rigid six-months period for the submission and receipt of communications. Its reasoning was that the six-months period is the ‘usual standard’, suggesting that the Commission intended to bring itself in line with other regional bodies.113 However, any reliance on a fixed term is at odds with the wording of the African Charter, which allows for submissions within a reasonable period of delay.

The African Court’s jurisprudence also is a relevant consideration in the scheme of things. Like the African Commission, the African Court applies the same criteria in relation to admissibility of applications under article 56(6) of the African Charter, including that applications be filed within a reasonable period. While the Court has shown flexibility, there are also some inconsistencies in its approach to ‘reasonable period’.114 Nkhata argues that in some cases, the African Court seemed to have taken applicants’ arguments for delay at face value, but in others it seemed to have rejected the same arguments without specifying the types of evidence it needed to justify the delay.115 He concludes that the Court’s approach creates incoherence and uncertainty in its jurisprudence.116

However, the African Court’s overall approach is sympathetic to applicants as long as they can justify delay.117 This is consistent with the intention of the drafters of the African Charter to not burden the Court with a fixed time frame within which applications should be filed. The Court’s sympathetic or flexible approach may seem unfair to respondent states, but the objectives of the African Charter to ensure justice and fairness for all should always be borne in mind. Besides, domestic courts do not always administer justice impartially. This is particularly the case in states where courts lack independence, for example, South Sudan, although a South Sudanese applicant has yet to file an application in the African Court.

It has been eight years since the Kenyatta government deported Dak back to South Sudan in 2016. That is far beyond the six-months’ time frame the African Commission has imposed under article 56 (6) of the African Charter. However, there are many factors that could work in Dak’s favour in terms of persuading the Commission to allow him to file an application to seek remedies from the Kenyan government.

First, as he was in detention for two years (from November 2016 to November 2018), he could make a case that the time he should have filed an application with the African Commission began after he was released from detention on 2 November 2018. It has been five years and 10 months since he was released, which is within the period of delay that the Court allowed in many cases, for example, Dexter Eddie Johnson v Republic of Ghana and Werema Wangoko Werema and Waisiri Wangoko Werema v United Republic of Tanzania.118

Second, he could argue that being far away in South Sudan and the African Commission being seated in Banjul in The Gambia in West Africa, he was not aware of the existence of the Commission and its role. Third, and the perhaps his strongest argument, he could argue that he could not return to Kenya to seek local remedies there to satisfy the requirements of article 56(5) of the African Charter, although the conditions imposed on him by the Kenyan government are not known, for example, how long he was barred from returning to Kenya.

There have been cases where the African Court considered geographical proximity to be a justifiable reason for the delay in filing an application. For example, in Lucien Rashidi v United Republic of Tanzania, which involved deportation, the Court held that since ‘the applicant was deported within a week of the High Court’s judgment and issuance of the Notice of Prohibited immigrant’, ‘[h]e … lacked the proximity that was necessary to follow up on his requests to the domestic authorities’.119 Finally, he could argue that he lacked legal representation. There is evidence for this. For example, he self-represented when he was being tried in South Sudan in 2018.120

In short, Dak could argue that his case comes within a reasonable period of delay, and is compelling by all accounts. A relevant consideration here also is the fact that he needed time to recover after he was released from jail as he may have been traumatised (South Sudan’s Blue Prison where Dak was kept arguably is among the worst prisons in the world). On the other hand, he may have moved on in his life and, thus, may not be keen to file an application with the African Commission. This possibility renders highly unlikely the prospects for holding the Kenyan government accountable for serious violations of international and regional refugee laws. For Dak, it may mean that he will have to live with the injustices he had suffered for the rest of his life.

6 Conclusion

It has been said that ‘the refugee law remains the unwanted child of states’.121 This to a degree is true. States have signed up to the 1951 Refugee Convention and its 1967 Refugee Protocol, yet in too many cases they have violated refugee protection rights these conventions provide. In some cases, this is done in the most blatant way. Such was the case with James Gatdet Dak, who was deported from Kenya to South Sudan in 2016 where he was charged and convicted of offences that arguably were politically motivated.

This article has sought to comment on Dak’s deportation. It found that the Kenyatta government carried out the deportation in violation of international and regional refugee laws, namely, the Refugee Convention and its Refugee Protocol, the OAU Refugee Convention and the African Charter. Particularly, it found that the deportation violated the principle of non-refoulement, which is now believed to have become a peremptory norm of international law from which no derogation is permitted.

The article also argued that Dak had suffered persecution at the hands of South Sudan’s authorities in at least two ways: (a) he was imprisoned for two years without having been formally convicted by a court of law; (b) his imprisonment was likely politically motivated because he is affiliated with the SPLM-IO – an armed opposition movement.

Finally, the article looked at the question of what recourse Dak may have against the Kenyan government for violating his refugee protection right. It is argued that Dak could seek a review of his deportation within Kenya’s immigration bodies and courts and/or bring a complaint before the African Commission. However, the prospects for this are uncertain for two principal reasons. First, the time (30 days) for seeking a review of a cancellation of visa under Kenya’s Refugees Act had long expired.

Second, the African Charter requires complaints to be filed within a reasonable period, which the Commission has determined to be a period of six months. This had also long expired. However, the African Commission allows complainants to invoke exceptional circumstances. Dak’s circumstances are exceptional given that he was jailed for two years and needed some recovery after being released from jail as he may have been traumatised.

However, it may be the case that Dak has moved on in his life and does not wish to revisit the matter. This would mean impunity for the Kenyan government. However, the point in writing this commentary is less about seeking justice for Dak, but more about providing an analytical understanding of the contentious issues that led to deportation, and perhaps to create a wider awareness about violations of refugees’ protection rights that go unpunished.