Asylum Denied

By David Ngaruri Kenney and Philip G. Schrag
University of California Press, 352 Pages
$24.95, hardcover

Reviwed by Jayne Fleming

Three men blindfold the prisoner and order him to strip. When he is naked, they push him through a doorway, and he falls into a tank. The men fill the tank with water. It rises to the prisoner's knees, his waist, and then his chest. He fears drowning. The water recedes, but only to rise again. The jailers subject the prisoner to this water torture, continuously, for a week. He cannot sleep. He cannot eat. To stay alive, he drinks water into which he has urinated and defecated. Eventually, the prisoner has the experience of leaving his body. His mind seems to separate from his physical being. Once, he walks over to his body on the floor and kicks it to see if it is alive. He then sees his own death, and he attends his funeral. He is only about 20 years old, but his life seems to have ended.

Which Kafka or Sartre story is this? Actually, it's neither--and it's not even fiction. It is Kenya in 1993. Are the torturers members of some radical terrorist group? No, they are members of the state security police. And the victim is David Ngaruri Kenney, a political activist and the leader of a boycott that unified 30,000 tea farmers in their opposition to the unfair policies of President Daniel arap Moi. Unlike thousands of other dissidents who did not survive the Moi dictatorship, Kenney managed to live. And now he has achieved a sort of immortality by writing, along with coauthor and legal legend Philip Schrag, an extraordinary book about his experiences. The richness and engaging complexity of this book are difficult to convey. What it condemns is blindness to inhuman suffering. What it celebrates is the resilience of the human spirit.

In its opening pages, the book describes the barbaric torture Kenney suffered in his native country. We also hear of ordinary individuals doing extraordinary things: The day after Kenney's arrest, roughly 5,000 Kenyan tea farmers marched to the prison and demanded his release. This type of collective action made the government take them seriously. Kenney was not released, but the government increased tea payments to the farmers for the first time in years. After Kenney languished for months in solitary confinement, a judge conditioned his release on an outrageous and prohibitively priced "peace bond." Nevertheless, when the farmers got wind of this, they pooled their tea earnings and secured Kenney's freedom.

Of course, Kenney's "freedom" did not come without additional strings attached, including police surveillance, a ban on political activities, and the threat of re-imprisonment if he associated with more than three Kenyans at a time. Kenney then decided to seek asylum in the United States.

Law students at Georgetown University put together a brilliant case for Kenney. They conducted countless interviews, drafted legal briefs and declarations, gathered evidence, and built what seemed like a bulletproof case. On the day of the asylum hearing, the students were geared up and ready to go. Kenney told his story of past persecution and torture in the greatest detail. A doctor who had expertise working with torture survivors testified that Kenney's description was the most convincing she'd heard in all of her years as a clinician.

But despite all of this, Kenney had a bad feeling as the hearing progressed. The judge would not make eye contact with him, and she seemed to have made up her mind even before he testified. This was devastating to Kenney: "I felt demeaned and dehumanized because I was trying to tell the story of my life--which had cost me so much pain to reconstruct--to someone who treated me as if I were not in the room."

Kenney lost his case, but not because the immigration judge doubted his story. She found that he had indeed suffered persecution on account of his political opinions. What doomed his claim was this: Before the hearing Kenney had returned to Kenya for two months to save his brother, who had been imprisoned on false charges. During his asylum hearing, Kenney explained to the judge that he knew returning to Kenya meant risking his life. Security forces had even warned him upon his arrival at the airport that they were watching him. Kenney was willing to put his own life at risk, however, because he had raised his younger brother and deeply loved him. He could not imagine abandoning his brother to the security police, even though in returning he was terrified for his own safety. Despite this testimony, the immigration judge concluded that if Kenney really was afraid for his life, he would not have returned to Kenya. The judge ordered him deported.

One cannot read this book without experiencing rage, disbelief, and an overwhelming sense of sadness over the inhumanity Kenney suffered, both in Kenya and in this country. Still, it is also an inspiring story of human courage, heartfelt friendships, and unrelenting devotion to fighting the good fight. One is left with a sense of awe at Kenney's strength. Not only did he persevere in his battle to stay in the United States despite roadblocks at every turn, he finished college and graduated from law school while engaged in that battle. There's much more to tell about the book, including a love story. But it is enough to say that this account should be required reading for anyone who has any contact with immigrants in America. It should also be on the reading list of anyone who cares about the preservation of human rights and human dignity in our world.

Pro bono counsel Jayne Fleming leads the Human Rights Team at Reed Smith. This year she received the American Bar Association's John Minor Wisdom Award for her team's asylum work.

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