NAIROBI August 23 – For over sixteen months now, a Kenyan has been confined in the US Naval station at Guantanamo Bay in Cuba. He was arrested in Mombasa by Kenyan Police on suspicion of involvement in the 2002 bombing on Israeli interests in Kenya, better known as the Kikambala bombing.
He is 37 year-old Mohammed Abdulmalik.
Abdul, as his family fondly calls him, was a Madrassa (Islamic class) teacher at Majengo ya Ropa in Mombasa and was a cross-border trader dealing in assorted merchandise between Mombasa and Somalia
His eldest sister, Mwajuma Rajab Abdalla, describes him as a humble young boy who could not harm a fly.
To her, the arrest, detention and eventual extradition of her brother came as a surprise and still linger in her memories as ‘a lifetime nightmare’.
Mwajuma’s biggest worry remains the fate of her brother whom she is not sure of ever meeting again.
“I don’t know if I will ever meet Abdul. What will happen if he dies in Guantanamo Bay? What will the government tell us…that he was not Kenyan?” She posed during a phone interview.
Mwajuma, like her step siblings Miriam Mohammed and Salim Khamis, says she cannot comprehend why Abdulmalik was extradited to Cuba, because he was not charged in Kenya.
Unlawful detention
Mariam and Khamis have for the second time lodged a bid to secure his repatriation citing legal issues which have been overlooked by the State.
They are aggrieved that despite the Kenyan law providing for an opportunity to be heard before being condemned, their brother was not accorded one.
“This is against the rules of natural justice,” their lawyer Mureithi Mbugua said when asked why he accepted to file the case which had previously been filed by human rights lawyer, Harun Ndubi.
The advocate, with the elder sisters’ authority, filed the suit at the High Court against Police Commissioner, Major General Hussein Ali and Attorney General (AG) Amos Wako for Abdulmalik’s unlawful detention.
They claim that since the arrest of their brother in February last year, and subsequent transfer to Guantanamo in March the same year, he has neither been charged nor arraigned in a court of law, and is still in pre-trial custody.
They now want the court to declare that his arrest was unlawful and unconstitutional, having violated his rights.
They also want the government to secure his immediate release from the secluded, hard-core penitentiary, besides according him ‘general, exemplary and punitive damages’.
A previous bid to secure his release flopped in mid-November last year, after High Court Judge Jackton Ojwang threw out their suit, saying the matter was out of Kenya’s jurisdiction.
"The high court’s possible redress orders would probably fall short of restoring the subject (Abdulmalik) to the Kenyan jurisdiction, as there are no unfailing instruments for retrieving him from those now having his physical custody," he ruled.
The judge suggested that it was essential to regulate the exercise of executive discretion when handing over Kenyans to foreign jurisdictions.
In the fresh suit, the family has reiterated the gross violations of their brother’s constitutional rights.
Government blamed for laxity
They blame the police for the ‘unsanctioned arrest and the government for its alleged laxity in ensuring justice for one of its own citizens’.
“The Government of Kenya has tacitly and/or actively connived with the US government in the continued indefinite, unlawful, illegal and unconstitutional detention without trial of the subject (Abdulmalik), in violation of the Kenyan constitution, the constitution of the USA and numerous international human rights conventions that the two countries are party to,” a paragraph of the complaint papers read.
The evidently disturbed siblings hold that ‘Abdulmalik had not committed any crime before his arrest’, and has arbitrarily been alienated from his family.
“The Kenya Police held the subject incommunicado and denied him his fundamental right to be visited by his family, with express instructions at every police station he was held at that he should not be seen by anybody,” they stated in their application.
As the only Kenyan being held in Guantanamo Bay, a prison whose mere presence has drawn wide condemnation from various international humanitarian organizations, human rights activists in Kenya have not taken it lightly.
Al Amin Kimathi, a Muslim Human Rights activist, describes the Abdulmalik case as an ‘apt abdication on the part of the government, to ensure the safety of its citizens.’
Kimathi, who has been vocal on various issues afflicting the Muslim community, insists that the onus to restore Abdulmalik’s safety rests with the Kenyan government to redeem its citizen from the high security penitentiary.
The Muslim Human Rights Forum (MHF) has written to President Mwai Kibaki over the issue and is looking forward to a favorable response.
“Abdulmalik is held in Cuba for an offence allegedly committed in Kenya. It is therefore his right for him to be tried under Kenya’s jurisdiction,” Kimathi said.
Improved life
In the meantime, the family believes Abdulmalik’s living conditions have improved, after they received information that their brother had been moved to a different cluster of prisoners at the hard-core penitentiary.
Mariam says late July this year, a human rights lawyer who spoke to Abdulmalik conveyed information that he was safe.
She says the lawyer confirmed that Abdulmalik has been allowed to mingle with other prisoners.
“We have been told that he has been moved to group four. I hear in this status, he can watch TV and socialise with other prisoners,” Mariam said.
When contacted, Government Spokesman, Dr. Alfred Mutua said his office was not ready to comment on the matter.
Police Spokesman also declined to comment on the matter. He said: “I do not wish to comment on that matter, please”. Capital News had asked him to comment on the extradition and why he was never charged.
Police have been accused of having violated his rights as a Kenyan citizen; beside allegations of torture on the suspect admit to involvement in Kikamabala bombings.
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