Tuesday, August 20, 2013
The High Court has awarded more than
Sh40 million in damages to 10 men and a woman, eight of them Kenyan
citizens, who were renditioned to other countries against their will as
security agents cracked down on terrorism.
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.