Early this year, the Kenyan government was in a fix over the extradition of Abdullah al-Faisal, a controversial, Jamaican-born, Muslim cleric, back to his homeland. Besides the nightmare of transporting him back to Jamaica, the government was forced to react decisively to quell street riots of young Muslims using Al-Shabaab signs and symbols to protest against the deportation. Since no airline could accept al-Faisal to board their planes and no Western countries grant him a transit visa, due to being on an international terrorist watch list, the Kenyan government had to fork out $500,000 to fly him out of the country.
Currently, the government is embroiled in another controversy over its handling of three Kenyans suspected to be involved in terrorist bombings that killed over 80 people in Kampala on July 11 (now dubbed 711). Although Al-Shabaab has claimed responsibility for the 711 bombing, the three main suspects are Kenyans who were arrested in Nairobi last week and handed over to Ugandan authorities. The relatives of the Kenyan suspect, Hussein Hassan Agade and Christopher Magondu, alias Idris Magondu, have now sued Police Commissioner Mathew Iteere, the Anti Terrorism Police Unit (ATPU), and the Attorney General for illegally arresting the trio and extraditing them to Uganda.
Saida Rosemary, Magondu’s wife, is claiming in an affidavit that more than 20 officers stormed and ransacked their home in Kawangware about 1.30am, handcuffed, blindfolded and drove off with her husband. She claims further that she was denied access to him and information about his arrest. In a hearing held in a Nairobi high court on 3 August, the ATPU told Judge Mohammed Warsame that the three Kenyans are beyond the jurisdiction of the Kenyan courts, as they have been handed over to Ugandan authorities.
These revelations are a serious blow to the rule of law and could severely undermine the prosecution’s case. In the past, there has been widespread opposition to Anti-terrorism bills in the region due to fears that human rights would be violated. The Kenyan government handling of the three suspects has confirmed the worst fears of the opponents of these legislations. This is not the first time Kenya has been involved in a terrorist rendition controversy.
In fact Kenya is now on record as being one of the first countries in the world to practice rendition in early 1976, when it arrested two Palestinian suspects in the vicinity of Nairobi airport planning to down an El-Al plane on a refueling stop from South Africa. The suspects were handed over to the Israeli authorities, and this incident could have gone unnoticed had the hijackers of French airliner that was commandeered to Entebbe in July 1976 not demanded the release of “their comrades” held in Kenyan jails. Kenya’s response was that the Palestinians were not in its custody, as they had been handed over to Israel.
This provoked anger among Palestinian terrorist groups that vowed to punish Kenya. Since the early 1980s Kenya has become a regular target of transnational terrorism. On the eve of the 1981 New Year, a member of the Popular Front for the Liberation of Palestine bombed the historic and posh Norfolk Hotel. Thereafter, Kenya has been targeted by terrorist bombers, with the most tragic being the August 9, 1998, bombing of the American embassy in downtown Nairobi that claimed the lives of more than 200 Kenyans. In the aftermath of the bombing, Kenya arrested some of the suspects in the 1998 embassy bombing and handed some of them to American authorities. Some of these extraditions were challenged in Kenyan courts, which ruled that they had violated the rights of the suspects.
There is concern among human rights activists that the latest extraditions have confirmed, once again, that Kenya is a violator of the International Covenant on Civil and Political Rights (ICCPR), the African Charter on Human and Peoples' Rights (ACHPR), and other international frameworks that protect human rights. The government is particularly being criticized for violating the constitutional rights of the suspects to the due process. Besides denial of due process, the suspects were also subjected to arbitrary arrests, illegal searches and in communicado detention without access to legal representation and family members. It is not yet known whether the suspects were tortured while being held in in communicado.
It seems the police were acting under the yet to be adopted anti-terrorism law that denies suspects legal advice on the grounds that the adviser will “interfere or harm evidence connected to a terrorist offence, or alert other persons suspected of having committed such an offence but not yet arrested for it; or will hinder the tracking of, search for or seizure of terrorist property.”
Critics of the Suppression of Terrorism Bill had raised a red flag that its extradition clause had no human rights guarantees for suspects or accused persons. It is ironic that Kenya extradited the “711” suspects to Uganda, a country with death penalty, on the eve of adopting a new constitution that abolishes it. Although Kenya is under obligation to cooperate with regional partners to prevent and combat terrorism and other crimes, it is also bound by international human rights law not to extradite its citizens without due process of the law, and to countries where they might be tortured. It would be a big blow to the efforts of preventing and combating terrorism if these suspects are released due to the flawed process of bringing them to justice.
*Wafula Okumu is a senior research fellow with the African Conflict Prevention
Programme of the ISS in Pretoria.
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