At Jomo Kenyatta International Airport still stands a Rwandan national, Catholic priest and ‘opposition leader’, Thomas Nahimana. He has been condemned by a number of associations in Rwanda for expressing controversial views on the 1994 genocide that happened in one of Africa’s fast developing countries.
In international law, a country (also state, nation) with a permanent population, defined physical boundaries, a government and powers to relate with another of its kind can refuse an applicant entry into its territory. It is an international right.
Foreign Diplomacy and ‘persona non grata’
In Diplomacy, the principle of ‘Persona non grata’ plays a vital role in establishing cooperation between states. Kenya, for instance has stopped Mr. Thomas Nahimana from boarding a plane at JKIA because it is honouring Rwanda’s request. Such is diplomacy and international relations when it concerns state matters.
Article 9 of the Vienna Convention on Diplomatic Relations dictates that a receiving state may ‘at any time and without having to explain its decision’ declare any member of a diplomatic mission persona non grata. Mr. Ndahimana is not a diplomat but a Rwandan national who’s lived outside his country for years. Although he’s maintained a vocal presence on matters within his country, his country reserves the right to question and caution his motives, which are not in agreement with those of the ruling government or other organisations therein. If cleared of all suspicion, he can be allowed entry.
A national or citizen who wages war against his own country may be denied entry simply because that country, out of state independence, only grants entry to peaceful nationals. It may give another reason, perhaps for the sake of immunity, amnesty, fostering reconciliation, etc. That is the essence of foreign diplomacy and state sovereignty.
The issue of recognition is important in the international law that governs independent states. Under the East African Community, member states recognize that each is an independent state with a government that decides how to run its affairs.
Foreign diplomacy therefore is complicated and delicate. If one country does not recognise another’s independence, often nationals or citizens of either country may be persona non grata to each country. However, present political and global relations limit the extent of such effects.
Freedom of movement and exchange of development policies have reduced strained diplomatic ties among countries, except in few extreme circumstances.
But at what point is one unwelcome in a country?
At any time before one enters a country, he/she can be declared ‘persona non grata’ by his/her intended country of destination. Sometimes, a person within a country may be declared persona non grata and therefore forced to leave.
Because countries enjoy authority to make and enact law, they have equal power to open or close their boundaries to any person at will.
A number of reasons justify a country’s decision to refuse anyone entry into its borders and they include;
- Wars and conflicts: Warring states usually prohibit nationals or citizens of enemy states from entering their territories. This can also apply to diplomats who are otherwise entitled to diplomatic immunity while on official duties.
- Legal proceedings and criminal activities: Where one is subject to court proceedings in another country, he/she may be denied entry into a country to bar him/her from evading trial. Also criminals like fraudsters, money launderers, terrorists, traffickers and offenders of heinous crimes may be declared unwelcome because of their criminal activities.
- Political ideology: A country may deny an applicant entry into its borders because of his/her differing political inclinations from its own. Since states have sovereignty, they have self-rule to grant or deny passage through or entry into their boundaries to any person.
- Autonomy: Some states purpose to exhibit self-rule to other states. In so doing, they refuse to allow nationals or citizens of a state they wish to express their independence to. It is a matter of decision.
- Espionage: Spies are not welcome because it’s assumed that a foreigner who gathers intelligence against another through deception is an enemy of the state. Under this category are some attaché who may be suspected of carrying out espionage activities. A number of attaché are allowed to freely operate under diplomatic missions on agreed terms between their home and host countries.
- Any other reason, as long as it can be backed by the existing laws of the country that issues a persona non grata on someone.
Was Kenya justified to effect Rwanda’s directive?
Yes. From one independent state to another, it was.
What Kenya did was merely respect another independent state’s request. It had to act accordingly because of diplomatic and regional relations both countries share.
So, what happens then?
Until Rwanda allows her national an entry route, Kenya will have to harbor the traveler or help him board a plane back to where he came from.
BY ATUHAIRWE AGRACE
This article appears in our weekly digital law magazine, The Deuteronomy, Vol 9, Issue 1 of December 2nd, 2016.
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