Activists want the sheik released into the custody of the Muslim community until the situation is resolved. His legal team says el-Faisal – now detained in a Nairobi prison -- has committed no crime in Kenya, though the government charges he violated the terms of his tourist visa by preaching while in the country.
The cleric served time in prison in Britain for preaching violence against non-Muslims, a charge he denies.
The chairman of the Muslim Human Rights Forum in Nairobi, al-Amin Kimathi, says el-Faisal has been denied due process and intends to pursue the case to the Kenyan High Court, if necessary.
"The cleric has not been given the benefit of a hearing in any valid tribunal or a court of law," says Kimathi.
"There have been allegations bandied about in the media," he continues, "and when he was arrested he was never charged with any offense; nothing was disclosed about why he was being detained. So far, he has not been accorded the benefit of a reading of the deportation order alleged to have been signed by the minister of immigration for his removal from Kenya."
"It is the law in Kenya that he be accorded the benefit of understanding the nature of the allegations causing his deportation, and enabling him to appeal the decision of the minister."
Civil liberties vs. security
The Kenya government says it can detain anyone without explanation for 24 hours.
The government also says that recent legislation gives the immigration minister the authority to deport anyone, a view supported by the vice chair of the Party of National Unity and constitutional lawyer, George Omari Nyamweya.
He says one of the government’s mandates is to ensure national security. He says that includes deporting anyone it deems a threat to the state, even if the individual has not committed an act of violence.
"The people who blew up the US embassy [in Nairobi] in 1997 had not previously committed any offense in Kenya," says Nyamweya. [Recently] there was this person [suspected terrorist Umar Farouk Abdulmutallab], who was on an aircraft bound to [Detroit], he had not committed a previous offense prior to the attempt of blowing up the jet. So [you don’t have to] commit an offense first to be barred from a country as a suspected terrorist.
A court challenge
Kimathi says authorities are deporting the cleric because he is on an international terrorist watch list used, among other, by the United States and Britain. Kimathi dismissed the list, saying it lacks UN – and international legal -- validation.
He says the cleric’s lawyers will challenge the minister’s power to deport el-Faisal.
"The piece of legislation we are talking about is being contested in a court of law," says Kimathi.
"One thing the minister has done is remove the right to appeal his decision. Any ministerial action in Kenya should be subject to judicial review and not stand alone. Whether the minister is empowered by the Immigration Act or not this is something that is reviewable or challengeable in a court of law. "
Allegations of discrimination
He says the immigration minister is treating Muslims differently from those of other faiths, a charge the government denies.
"We have it on authority of immigration ministry officials," says Kimathi, "that preachers of other faiths coming specifically for short-term missions like preaching for a day or two or holding crusades, do not receive work permits but [three-month] tourist visas, like Faisal had. And it makes everyone wonder why the double standards, the discriminatory treatment where Muslim clergy [often has] to get work permits for short term visits while the [others do not]."
Kimathi says the sheik has not been granted visitation rights by legal counsel or by any representative of his family. And he says so far, the embassy of Jamaica, his home country, has not contacted him.
Most African airlines do not fly directly to the Caribbean nation, and several countries – including the United States, Britain, South Africa, and Tanzania -- are refusing to grant the cleric a transit visa allowing him to change planes on their soil. Kimathi says solution maybe to fly him to a neutral country, like Switzerland, where he could get a plane home.
Kimathi says the international community has an obligation to facilitate the sheik’s return.