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A second bid to free Kenyan in Guantanamo

NAIROBI, July 16 – The family of a Kenyan being held in Guantanamo Bay, Cuba, on suspicions of involvement in attacks on Israeli interests in Kenya in 2002 lodged a second attempt to secure the man’s release on Wednesday, barely eight months after the first bid flopped.

Mariam Mohammed and Salim Khamis, a sister and half-brother to Mohammed Abdulmalik, have sued the Commissioner of Police and the Attorney General (AG) for the unlawful detention of their family member, and are now demanding his immediate release from the US Naval Station.

The two claim that since their brother’s arrest in February last year and his subsequent transfer to Guantanamo the next month, he has neither been charged nor arraigned in a court of law, and is still in pre-trial custody.

Abdulmalik, 37, was arrested on suspicion of having committed criminal offences in Mombasa and allegedly detained at various police stations in Mombasa and Nairobi before being transferred to the Cuba penitentiary.

The family now wants the High Court to declare that his arrest was unlawful and unconstitutional, claiming that his rights had been violated.

They also want the government to secure his immediate release from the secluded, hard core penitentiary, besides being accorded general, exemplary and punitive damages.

This move comes as a second attempt to free the terrorism suspect after an earlier bid flopped in mid-November last year.

High Court judge Justice Jackton Ojwang threw out the suit, saying the court had no jurisdiction to order his return even though the suspect’s basic rights might have been violated.

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"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.

They blamed the police for the unsanctioned arrest and the government for its alleged laxity in ensuring justice for one of its 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 two hold that Abdulmalik had not committed any crime before his arrest, which has arbitrarily alienated him 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.

Abdulmalik is the only Kenyan being held in Guantanamo Bay, a prison whose mere presence has drawn wide condemnation from various international humanitarian organisations.

Until his arrest, he was a Madrassa teacher at Mzee Ramadhan’s at Majengo ya Ropa in Mombasa and a petty merchant in cross-border dealing in assorted merchandise between Mombasa and Somalia.

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