The case for the return of The Luzira 7

P. O. Box 43802– 00100, Nairobi, Kenya
Tel: (020) 445445, 353 7836, 357 3644
Nelleon Place, Rhapta Road, Westlands.
Email: [email][email protected]
November 14th 2011

Hon. Moses Wetangula EGH MP

The Minister For Foreign Affairs
Government of Kenya,
Harambee Avenue,
Nairobi,
Kenya.

MEMORANDUM: THE CASE FOR THE RETURN OF THE LUZIRA 7 – THE KENYANS DETAINED IN UGANDA ON TERRORISM CHARGES

BACKGROUND

On 11 July 2010, two suicide bombings were carried out in two locations in Kampala, where large numbers of people had gathered to watch the 2010 football world cup final match. The attacks left 75 dead and 70 injured. Somalia’s Al-Shabaab militia soon publicly claimed responsibility for the attacks, stating that they were in retaliation for Ugandan support for the AMISOM mission in Somalia. In the days immediately following the attacks, the international community pledged support for the Ugandan investigation, and Ugandan and Kenyan police made several arrests. However, the security response soon appeared to grow heavy-handed, involving a range of serious human rights abuses by security forces.

Eight Kenyans were transferred from the country to Ugandan custody without any recourse to due process circumventing the laid down extradition laws. The Chairman and Executive Director of this organisation Mr. Al-Amin Kimathi and a human rights lawyer retained by us to monitor the proceedings of their trial were themselves arrested and illegally detained when they arrived in Uganda on September 15 2010. Mr. Kimathi was to remain in custody for one year charged with the same offences as his clients. The charges were eventually dropped on September 15 when he and one of his clients Mohamed Adan Abdow were set free. The lawyer Mr. Mbugua Mureithi was deported to Kenya after 5 days of incommunicado detention.

There are seven Kenyan citizens remaining in remand custody at the Luzira Upper Prison in Kampala. Six of these men were illegally rendered from Kenya to Uganda with no judicial process. One was transferred from Tanzania without being allowed to exhaust his appeal rights and in contravention of Tanzanian and international law. Despite condemnation of the renditions from a variety of sources including two Kenyan High Court judges, the British Ambassador to Kenya and the Kenyan Minister for Justice and Constitutional Affairs, no steps have yet been taken to seek a remedy for the violations and request the return of the Luzira Seven to Kenya.

IN A NUTSHELL

- There are now twelve defendants held at Luzira Upper Prison in Kampala in connection with the July 2010 Kampala Bombings.
- At an arraignment hearing on Tuesday 13 September, two of the defendants entered guilty pleas and have now been sentenced.
- Prosecution evidence has been served on the remaining defendants, and the trial is currently slated to start on Tuesday 15th November,at the High Court in Kampala before Mr. Justice Owiny Dollo.
- Seven Kenyans (Omar Awadh, Idris Magondu, Hussein Hassan Agade, Mohammed Hamid Suleiman, Yahya Suleiman Mbuthia, Habib Suleiman Njoroge, and Mohammed Ali), three Ugandans (Isa Ahmed Luyima, Hassan Harun Kuyima and Abubakari Batematyo), and one Tanzanian (Hijar Selemani Nyamandondo), have each been charged with three counts of terrorism (under ss7(1) and (2)(a) of the Anti-Terrorism Act 2002), 75 counts of murder (contrary to ss188 and 189 of the Penal Code Act Cap 120), and nine counts of attempted murder (under s204 Penal Code Act Cap 120).
- One Ugandan (Muzafar Luyima), has been charged with being an accessory after the fact, under Sections 28(1) and 29 of the Anti-Terrorism Act 2002.
- Ugandan Idris Nsubuga - charged with the above three counts of terrorism, 75 counts of murder and nine counts of attempted murder – has pleaded guilty and received a sentence of twenty-five years in prison.
- Ugandan Muhamoud Mugisha pleaded guilty to conspiracy to commit acts of terrorism contrary to Section 25 of the Anti-Terrorism Act 2002, and received a sentence of five years in prison. The remaining defendants, including all seven remaining Kenyans, have pleaded not guilty.

THE LUZIRA SEVEN

The Seven Kenyans are:

Omar Awadh Omar,
Idris Magondu (also known as Christopher Magondu)
Hussein Hassan Agade,
Mohamed Hamid Suleiman,
Yahya Suleiman Mbuthia,
Habib Suleiman Njoroge and
Mohamed Ali Mohamed

They all allege a range of serious abuses:

- They were all rendered with no judicial process from Kenya to Uganda.
- All of the above allege excessive use force during arrest in Kenya, and incommunicado detention and denial of access to lawyers and family members whilst detained in Kenya.
- All of the above allege incommunicado detention in Uganda, denial of access to lawyers during initial detention, abusive interrogations, conditions of confinement amounting to cruel, inhuman and degrading treatment, and some allege torture.
- Mohammed Ali Mohamed was arrested and detained incommunicado in Tanzania prior to his transfer to Uganda.
- Mohammed Ali was denied access to a lawyer and denied consular assistance during his initial detention in Tanzania.
- Mohammed Ali Mohamed alleges that he was tortured, and that some of his family members were tortured, in Tanzania.
- Mohammed Ali Mohamed was transferred to Uganda before being allowed to exhaust his appeal rights in Tanzania, in contravention of Tanzanian and international law.

The purpose of an extradition process is for states to ensure their citizens will be given due process and have their human rights respected if they are to be transferred to another jurisdiction for prosecution. Most justifications of rendition involve examples where it is impractical or impossible to go through an extradition process, for example where a suspect is in a “failed state”, or a state with no extradition agreement with the state seeking extradition. This is not the case with Kenya and Uganda, which are neighbouring states with an extradition agreement and friendly relationships. Thus, the choice of rendition rather than extradition of Kenyan nationals to Uganda raises many questions about the credibility of the case against them. In addition, the range of violations alleged by the Kampala Seven casts serious doubt upon the credibility of the Ugandan case.

WHAT THE KENYA GOVERNMENT CAN DO:

Participating in the detention in Kenya, and rendition of Kenyan citizens from Kenya to a foreign state is a violation of Kenyan constitutional law, the International Covenant on Civil and Political Rights to which Kenya acceded in 23 March 1976 (ICCPR), the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment which Kenya ratified on 23 March 1997 (CAT), and the African Charter on Human and Peoples’ Rights which Kenya ratified on 23 January 1992 (African Charter).

- The Kenyan government must immediately make representations to the Ugandan government to seek the return of all Kenyans held in Kampala in connection with the July 2010 bombings.
- The Kenya government can open up charges in Kenya for its citizens for the alleged offenses perpetrated on Kenyan soil and even those allegedly committed in Uganda or anywhere else within the East African Community as Kenya domestic law, the constitution of the Republic of Kenya and International laws provide for such trial.

SPECIAL PLEA FROM THE MUSLIM HUMAN RIGHTS FORUM (MHRF).

It is the considered view of MHRF that as the governments in the region combat the growing threat of terrorism they need to clearly demonstrate a commitment to the upholding of the human rights of the citizenry, the rule of law and humane practices and tamper their fight against terrorism with justice. Clearly Kenya needs allies in its current campaign against the Al-Shabab militia in the entire Muslim community. It therefore needs to disabuse the community of the strong notion that it is being targeted unfairly and being discriminated against in counter-terrorism efforts. Undoing the injustices and wrongs committed in the current and past campaigns will send a clear message and win the government the support it requires in its anti-terrorism campaign from both within the Muslim community and without. Returning the Kenyan detainees from Uganda, freeing them or arraigning them in Kenyan courts will certainly have that positive effect. It will also inspire hope and confidence in the government’s ability to protect its citizens from injustices and deliver justice without discrimination along religious, ethnic, racial or class differentiations.

MHRF therefore urges the government of Kenya to urgently petition the Ugandan government to return the Kenyans held at the Luzira Upper Prison awaiting trial for the July 7, 2010 Kampala Bombings.

Thank you

For Muslim Human Rights Forum

Al-Amin Kimathi
Chair

Mob: 0754 238 772
0721 324 186
Email: [email][email protected]

cc. Minister for Internal Security and Provincial Administration
Office of The President,
The Attorney General
Minister for Defence
Minister for Justice and Constitutional Affairs
Minister for Immigration and Registration of Persons
The Director of Public Prosecutions
The Commissioner of Police
The Permanent Secretary, Internal Security and Provincial Administration
The Permanent Secretary, Ministry of Foreign Affairs
The Chairperson, Kenya National Commission on Human Rights