, NAIROBI, Kenya, Sep 28 – President Mwai Kibaki on Monday came under a scathing attack from a High Court judge over the rendition of Kenyans to other countries on suspicion of terrorism.
Justice Mohammed Warsame questioned why President Kibaki – who recently swore oath of allegiance to the new Constitution – allowed State agents to infringe on the rights of Kenyans contrary to the new Bill of Rights.
“That kind of behaviour, act or omission is likely to have far and serious ramifications on the citizens of this country and the rulers. It also raises basic issue of whether a President who has just sworn and agreed to be guided by the provisions of the Constitution can allow his agents to breach with a remarkable arrogance or ignorance,” ruled Justice Warsame in a case in which Mohammed Aktar Kana, moved to court to block his arrest and transfer to Uganda over suspicion of involvement in the July 11 Kampala terror attacks where 70 people were killed.
“Prima facie the allegation contained in this application is a serious indictment on the institution of the President and whether he is protecting, preserving and safeguarding the interests, rights and obligations of all citizens as contained in the new Constitution.”
Already thirteen Kenyans are facing terror related charges before a Ugandan Court. Mr Kana says in his affidavit that six of those Kenyans are personally known to him as they worship with him at Jamia Mosque and elsewhere in Nairobi where they socialise in coffee houses.
“Invariably I have interacted with some of the victims in the course of my business as aforesaid. An affinity has therefore evolved in the course of time particularly through religious worship. This interaction is therefore a fertile ground by the said officers for inference of ‘guilty by association’,” he said in his affidavit.
Mr Kana through his lawyer Muturi Kigano has told the court that Ugandan authorities have variously sought to ‘abduct’ him and at one time had even arrested his cousin in a case of mistaken identity.
In blocking Mr Kana’s extradition from the country, Justice Warsame said the action by the Kenyan authorities showed “yesteryears’ impunity is still thriving in our Executive arm of the government.”
He then ordered: “I direct the Attorney General, Police Commissioner and Internal Security Minister to ensure that the applicant is not surrendered, handed over, transported and or transferred to Uganda or any other country without further orders from this court.”
“If the applicant is arrested, he shall be brought to this court without fail or subjected to the due process as enshrined in our Constitution.”
Mr Kana says that lawyer Mbugua Mureithi who was arrested and later released as he went to represent the Kenyans in Ugandan custody had told him that he and Muslim human right activists Al Amin Kimathi who is also in custody were interrogated about him generally.
In his affidavit Mr Kana also claims that he is a frequent visitor to Yemen.
“I occasionally travel to Yemen where my first wife Salima Antonio Fernandes and five of my children reside, work and study respectively. Yemen is categorised by American Government as a terrorist/ Al-Qaeda main cell.”
The court has directed that its orders be also served on the office of the President through Francis Muthaura who is the Permanent Secretary in the Office of the President and Secretary to the Cabinet.
The matter is due in court on Thursday for a hearing of all parties.