Kenya has been accused by various non-state and state actors of supporting extraordinary rendition, which refers to the secret transfer of people from one country to another without due process of law and against their will. The most recent case of extraordinary rendition was the removal of Ugandan opposition politician Kizza Besigye in November 2024 from Kenya to a military jail in Uganda. Oscar Gakuo Mwangi, who studies regional security and governance, explains.
What is extraordinary rendition?
Extraordinary rendition refers to the illegal transfer of a detainee to the custody of a foreign government for purposes of detention and interrogation.
It’s basically the secret transfer of people from one country to another against their will. It is linked to various human rights abuses. These include torture, degrading treatment and protracted detention without trial.
Under extraordinary rendition, an individual is transferred without the benefit of a legal proceeding to challenge the transfer. It’s a breach of criminal and international law.
Extraordinary rendition is not the same as extradition. Extradition is a legal process. It is the official transfer of suspects in custody between foreign governments. Extraordinary renditions, on the other hand, are extrajudicial transfers.
Read more: Kenya's spy chief leads the national intelligence service – what the job is all about
Extraordinary rendition is also different from the principle of non-refoulement, which bars states from the forced return of refugees to a country where their life or freedom would be threatened. Kenya forcibly returned four refugees to Turkey after they were abducted by masked men in Nairobi in October 2024. Kenya said it did this on the request of the Turkish government, making it a breach of the non-refoulement principle – as well as an extraordinary rendition.
Kenya doesn’t have an official policy supporting extraordinary renditions. However, the practice can be carried out under covert operations as provided by law.
Following the enactment of the Security Laws Amendment Act of 2014, the National Intelligence Service Act was amended to allow security agencies to undertake covert operations to neutralise national security threats. The National Intelligence Service Act determines security threats and limitations of the right to access to information for such special operations.
Extraordinary renditions can be classified as special operations. This limits the right to access information on them.
What is Kenya’s record with extraordinary renditions?
There have been several instances of extraordinary renditions in Kenya.
In 1999, for instance, Kenya announced that Abdullah Ocalan, founding leader of the militant Kurdistan Workers Party in Turkey, entered the country without declaring his identity. Kenya accused Greece’s ambassador of concealing Ocalan’s identity. Greece arranged for Ocalan’s departure from Kenya. On 15 February, Kenyan officials took Ocalan from the Greek embassy and drove him to the airport. The vehicle transporting Ocalan took him to an aircraft that had Turkish officials and special forces. He was flown to Turkey and imprisoned. He’s still in jail.
In 2021, Kenyan security officers arrested Nnamdi Kanu, the leader of the Indigenous People of Biafra, a separatist movement in Nigeria. Kanu was arrested at the Jomo Kenyatta International Airport. On 29 June, Kanu was extraordinarily renditioned to Nigeria. This was done with the cooperation of Nigerian intelligence officials and the International Criminal Police Organization (Interpol). Kanu was charged with offences related to conspiracy to commit treason, defamation and improper importation of goods. He remains in custody.
In October 2024, seven Turkish asylum seekers were abducted in Nairobi. Three were released, while four were renditioned to Turkey. The asylum seekers were allegedly abducted by Turkey’s National Intelligence Agency in Nairobi. The Kenyan government confirmed the deportations.
Besigye was abducted in Nairobi on 16 November 2024. A few days later, he was arraigned in a military court in Uganda. He is a civilian. He was charged with offences relating to security and unlawful possession of firearms and ammunition. Besigye’s lawyers claim that the abduction was the result of collusion between Kenyan and Ugandan authorities. The Kenyan government has denied any involvement.
These incidences have the characteristics of extraordinary renditions.
What calculations and trade-offs are involved in extraordinary renditions?
Extraordinary renditions are not possible without international cooperation. This cooperation is based on government views on the trade-off between security and civil liberties.
Countries with similar values, for example on human rights, require less persuasion to cooperate.
Unlike other forms of covert cooperation, extraordinary rendition is observable. Therefore, participation in extraordinary renditions carries far greater public costs than other forms of cooperation due to the human rights abuses involved in such operations.
Kenya has cooperated with countries like Turkey and the US in extraordinary renditions. The calculations and trade-offs with such states are arguably evident.
Military relations between Kenya and Turkey have been strengthened over the years through various agreements. In 2023, for instance, the two nations signed a Defense Industry Cooperation Agreement highlighting their mutual commitment to collaborating on defence and security.
And in May 2024, the US designated Kenya as a major non-Nato ally, the first such designation for a sub-Saharan African country. This symbolises the close relationship the two countries share on security.
What are the legal implications?
Kenyan laws and international legal frameworks address violations committed by extraordinary renditions.
The rights and fundamental freedoms of persons in Kenya are stipulated in the country’s constitution. These include the rights of those detained, held in custody or imprisoned.
Kenya’s laws don’t overtly support extraordinary renditions. They do, however, provide legal processes for extradition.
These laws include the Extradition (Contiguous and Foreign Counties) Act Revised 2012 and the Extradition (Commonwealth Counties) Act Revised 2012. Both laws outline the legal procedures required for the extradition of individuals. For instance, people shall not be extradited for political offences committed in the requesting state.
International frameworks also provide legal processes for extradition.
These include the International Covenant on Civil and Political Rights that came into force in 1976, and the 1951 Refugee Convention and its 1967 Protocol. These frameworks stipulate the right to liberty and security of persons, and lay out extradition procedures.
Read more: Kenya terror alerts: political scientist unpacks the intelligence behind them
The principle of non-refoulement is in the 1951 Refugee Convention. It prohibits states from extraditing, deporting or returning a person to a country where his or her life or freedom would be threatened.
Kenya is a signatory to these international frameworks.
Extraordinary renditions are extrajudicial and transnational. Hence countries participating in extrajudicial processes are disregarding the rule of law.
International law is clear about what are known as peremptory norms. Peremptory norms have universal character which no state may deviate from.
Peremptory norms supersede any conflicting local norms, principles of international law or treaty provisions.
Non-refoulement, for example, has attained the status of a peremptory norm. There are, however, exceptions to non-refoulement on grounds of security. These exceptions render refugees vulnerable to human rights violations.
States like Kenya take advantage of such exceptions to extradite, deport or expel asylum seekers and refugees. Further, Kenya hasn’t yet ratified the 2010 International Convention for the Protection of all Persons from Enforced Disappearance, which seeks to address such gaps.
Oscar Gakuo Mwangi does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
This article was originally published on The Conversation. Read the original article.
