Successful Terrorism Trials

 “It is the duty of the Director of Public Prosecution (DPP) to make necessary

innovative applications to ensure successful investigations and prosecution

without infringing on suspect(s) constitutional rights.” Mr. Wakahiu

Kenya is party to several international human rights treaties. The treaties include the

Universal Declaration of Human Rights, The International Convention on Civil and Political Rights and The African Charter on Human and People’s among others. Chapter Four of the Kenya Constitution deals with the Bill of Rights.

Investigating, prosecuting and trying terrorists’ cases invariably involve matters of the Bill of Rights. The court has to strike a balance between national security policy and the protection of the suspect’s fundamental rights. The doctrine of the Equal Protection of the Law demands that terrorist suspects be treated like any other suspects with the respect and dignity afforded to all other suspects.

Constitutional Hurdles

The bombing of the American Embassy in Nairobi, Kikambala bombing in Mombasa, Westgate massacre, Mpeketoni raid and the Garissa University attack indicate that Kenya should have a policy on National Security as a top agenda. Courts acknowledged this need in the case of Salim Awadh Salim & 10 others Vs Commissioner of Police & three others and Zuhura Suleiman v The Commissioner of Police & three others [2010] eKLR).

The Government has made frantic efforts to track and arrest terrorists but their efforts in investigations and prosecution of the cases have met tough constitutional hurdles in the nature of Bill of Rights. Recently, Parliament passed the Security Laws (Amendment) Act, No 19 of 2014 (“SLAA’), the compressive legislation dealing with security. In Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10; others [2015] eKLR the court declared some of its provisions unconstitutional.

In the case of US v. Abu Ali, 528 F.3d 210 (4th Cir. 2008), the suspect, an American went to study abroad in Saudi Arabia. Saudi authorities suspected that he had affiliations with a terrorist cell called al-Fq’asi. He was arrested in Medina by the Saudi Special Counter terrorism forces, the Mabahith and transported to Riyadh and questioned by the Mabahith whereby some Federal Bureau of Investigations (FBI) agents observed the interrogation upon a request by the US Government.

Abu Ali made several incriminating statements before he was taken to the US to stand a terrorism trial and charged with terrorism- counts. The Judge introduced a deposition procedure, which enabled the US government to take the Mabahith’s statements without infringing on Abu Ali’s constitutional rights. The Judge gave directions that two attorneys, lead by Abu Ali’s leading attorney attends the deposition in Saudi Arabia, the third attorney was sitting with Abu Ali in Virginia while two Government attorneys and an interpreter sat in Saudi Arabia.

A live two-way video link was used to transmit the proceedings to the courtroom in Virginia where the Judge was sitting. A transcription by a court reported in real-time and separate cameras recoding the Mabahith on one side and Abu Ali on the other was accorded. The Judge found that Abu Ali’s statements to the Saudi Mabahith were voluntary and not as a result of “gross abuse” or “inherently coercive conditions”. The Judge eventually convicted him noting that the alleged defects in the searches and indictments “did not violate Abu Ali’s rights under the Fourth or the Sixth Amendments

Successful Prosecution

In Kenya, Article 49 of the Constitution deals with the right of an arrested person. There are also four important stages in a criminal trial that includes initial investigations, arrest, further investigations while the suspect is in police custody and formal charging. The Director of Public Prosecution (DPP) and the police are fully involved in the first stage of the initial investigations.

The Court comes in the second, third and fourth stages. The second and third stages are critical. It is when the investigator can get first-hand information from the suspect personally. However, there lacks self-supervision methods to monitor the police and control cases of abuse of the suspects’ rights by the police. The implementation of Article 49 is entirely in the hands of the investigators.

Developed countries have devised ways of handling this dilemma of police self-supervision. There is increased need to get information from suspects without infringing on their constitutional rights to information, privacy and many others. Technology has come in as the answer. It is the duty of the Director of Public Prosecution (DPP) to make necessary innovative applications to ensure successful investigations and prosecution without infringing on suspect(s) constitutional rights.

The successful prosecution of terrorist cases will depend largely on the DPP’s (and the police’s) input in investigations and prosecution. This is therefore a wake –up call for the DPP to come up with more innovative methods. Prosecuting Abu Ali’s case was successful because of the availability of technology, which enabled deposition and instantaneous transmission. It is for the Judiciary in Kenya to figure how adopts technological developments and innovations in the war against terrorism.

-Mr. Wakahiu is an Advocate of the

High Court of Kenya