Hiiraan Online

Tuesday, August 20, 2013

High Court Judge Mumbi Ngungi directed the government to foot the cost of the petition as well as the interest on damages since the time the eight Kenyans, two Tanzanians and a Rwandese were renditioned to Ethiopia and Somalia.

The July 31 judgement is precedent-setting in Kenya’s fight against terrorism as it could open the way for more legal action, especially by the suspects in the 2010 bombing of an entertainment spot in Uganda in which dozens died.

Salim Awadh Salim, Saidi Hamisi Mohammed, Bashir Hussein Sader, Hassan Shabani Mwazume, Swaleh Ali Tunza, Abdallah Halfan Tondwe, Kasim Musa Mwarusi and Ali Musa Mwarusi, all Kenyan nationals, had sued the government for arrest, detention and rendition on diverse dates between January and February 2007 without following the due process of the law.

The other petitioners in the case were Tanzanians Fatma Ahmed Chande and Mohamed Abushir Salim, and Muhitabo Clement Ibrahim, a Rwanda national. The petitioners, who described themselves as “devout and practicing Muslims” further alleged that they were targeted because of their faith.

At the time of their arrest, the petitioners claimed they had just crossed into Kenya from Somalia to escape a raging war. As such, they argued, they ought to have been treated as persons seeking refuge, particularly for the Tanzanians and the Rwandese. The operation to arrest them was led by Nicholas Kamwende, then the head of the anti-terrorism police unit (ATPU), who linked the petitioners to Islamic Courts Union militia whose leaders were wanted terrorists Fazul Mohammed, Swalleh Nabhan, Shikh Ahmed Salim and Fahid Mslam, all now deceased.

During their time in custody, they claimed they were tortured by Kenyan, Somali and Ethiopian security forces. They also claimed to have been interrogated by the FBI who accused them of supporting the Islamic Courts Union which was then engaged in a war with Ethiopian and Somali Transitional Federal Government forces.

The former office of the commissioner of police and the Attorney-General were cited as the first and second respondents while the two airlines involved in their rendition, African Air Express Airways Ltd and Blue Bird Aviation Ltd were the third and fourth respondents.

The petitioners were represented by advocate Mbugua Mureithi while the State was represented by a Mr Opondo from the State Law Office. Mr Onindo and Mr Mwenesi of Musalia Mwenesi and Company Advoctes acted for African Air Express Airways Ltd. The fourth respondent was represented by a Ms Serem of Archer & Wilcock Advocates.

The judge said in her ruling that there was no evidence presented in court pointing to discrimination based on the petitioners’ faith. But she found the first and second respondents “liable for violation of the petitioners’ rights under Sections 72 and 74 of the Constitution.”

The State was also found to have “violated the petitioners’ right to due process.”
“The arrest of the petitioners was, in the circumstances, arbitrary, unlawful and unconstitutional and in violation of their fundamental right against arbitrary arrest guaranteed by Sections 70 and 72 of the Constitution,” Lady Justice Ngungi said in her judgement.

She also faulted the government for detaining the petitioners in Kenya for a period longer than 24 hours without being arraigned in the court of law, which she said denied them their fundamental rights to personal liberty and protection of law guaranteed by Sections70 and 72 of the Constitution.

“The holding of the petitioners in incommunicado detention for a period longer than 24 hours was arbitrary, unlawful and unconstitutional and in violation of their fundamental rights to the integrity, dignity and security of the person and freedom against torture, cruel, inhuman and degrading treatment or punishment guaranteed by Sections 70 and 74 of the Constitution,” the judge ruled.