Prosecution of terror suspects put to question

By Standard Team

Kenya: The extradition of three Western terror suspects to Belgium last week highlights Kenya’s never ending vulnerability to the terrorist threat posed by Somalia.

It also highlights the importance of Lamu, Malindi and unpoliced parts of the Coast region in understanding al-Qaeda and al-Shabaab, and the role foreigners play in the war on terror in Kenya.

Just this month, a car bomb was discovered parked at the Mombasa County police headquarters. Last Sunday gunmen stormed a church in the town and killed six worshippers.

Both events bear the hallmarks of global terrorism with the car bomb, in particular, displaying initial evidence of the emergence of the Yemeni-based al-Qaeda in the Arabian Peninsula terror group in coastal Kenya.

Meanwhile, the matter of the extradited Western suspects also illustrates institutional weaknesses and even incompetence in investigating and prosecuting terror suspects successfully. Owing technological challenges, inadequate laws, lack of language experts and corruption, many terrorists either get away on minor charges or are simply allowed to slip away.

For instance, in 2012, judicial authorities in Mombasa terminated terrorist charges against Hassan Kafi, a most wanted terror suspect, saying there was no evidence to sustain the charges.

Then mid last year, the prosecution failed to bring up terror charges against Kafi’s three Belgian accomplices — Mustapha Bouyabaren, Ben Abdalla Ismail and Rachid Benomari — who were last week extradited to Belgium to answer 32 terror-related charges.

The three were arrested in Malindi on July 4 last year, after they crossed the Kenya-Somalia border and travelled to Lamu on July 2, 2012. Police reported that six years ago, the three had rented a flat close to where slain al-Qaeda fugitive Abdullah Fazul Mohammed lived.

Kafi was arrested in Lamu on May 1, 2012 and deported to Belgium later that year to answer the 32 charges.

Reports show that the four entered Kenya on tourist visas in April 2011 through the Jomo Kenyatta International Airport.

They were believed to have formed an al-Qaeda cell in Malindi and were linked to a separate group of jihadists arrested in Turkey as they tried to fly to Somalia from Istanbul.

The four –Kafi, Mustapha, Ismail and Rachid – are listed in an Interpol report dated July 5, 2012 as part of a terrorist cell of North African Europeans that set off from Belgium in April 2011 through Bulgaria, Turkey and other nations to join al-Qaeda and eventually al-Shabaab in Somalia.

According to the report, the four embarked on a jihadist mission that took them to the Middle East before they entered Kenya through Tanzania and Egypt.

According to an affidavit filed in court by Chief Inspector Kinoti Kithinji of the Anti-terrorism Police Unit in Malindi, Rachid, Mustapha and Ismail were charged for illegal entry into Kenya.

Phone interception

Mustapha, Ismail and Rachid first entered Kenya through JKIA on April 20, 2011 shortly after which their travel documents expired. It is not clear how much Kenyan authorities knew when the three arrived.

The Interpol report implicating Kafi, Bouyabaren, Ismail and Rachid in global terrorism is based on a court-sanctioned phone interception of Rachid’s wife Berrow Loubna’s communication. These telephone calls established that the suspects had joined al-Qaeda and al-Shabaab, fought in Somalia, posted messages on jihadist websites on the groups’ behalf and also raised money for them, including from Kenyan territory.

Whereas Kafi was arrested in Lamu on May 1, 2012 Mustapha, Rachid and Ismail appear to have escaped the dragnet of the anti-terror police until early July last year. It is not clear where Mustapha, Ismail and Rachid were hiding in Kenya, although some accounts state they were in Somalia.

Unable to charge Kafi on terrorism-related offences, even after claiming he and a Tunisian Derbali Mohamed had been arrested after entering Lamu from Somalia, police only charged them with illegal entry into Kenya and each sentenced to six months in jail. When prosecution sought direction from the Director of Public Prosecution (DPP) on Kafi’s stay in Kenya, the DPP’s representative accused police of squandering an opportunity to get actionable information to press more serious charges from the Belgian embassy.

“It may be that the convicts (Kafi and Derbali) were up to some mischief, but that is mere speculation. There is no iota of evidence as to what criminal activity they were trying to engage in,” said Jacob Ondari, the Assistant Deputy DPP, in a letter to Coast PCIO Ambrose Munyasia on June 12, 2012.

Ondari argued that the only actionable evidence available linked Kafi and Derbali to illegal entry into Kenya and accused the police of not seeking foreign help to sustain other charges. “Your officers lost the opportunity when they failed to get in touch with their embassies,” said Ondari.

Ondari did not explain why the DPP’s office could not seek this foreign help itself, instead of blaming police. “In the circumstances, I advise that nothing much can be done to the convicts,” Ondari said, adding attempts by police to charge the suspects with engaging in organised crime had “no legs on which it can stand.”

The Standard on Sunday has not established what happened to Derbali or if he was deported to Tunisia.

The Interpol report dated July 5, 2013 shows that Mustapha, who is Belgian, asserted that he was a member of al-Qaeda, according to information received through telephone intercepts.

An arrest warrant for terrorism charges for which he faces 10 years in jail in Belgium was issued on October 3, 2012. The Interpol say Mustapha, at different times, lived in Belgium, Somalia and Kenya between April 14 and October 3, last year, and that he left Belgium “in order to join the jihad in Somalia” with Kafi, Rachid and an unidentified Algerian believed to be Ismail. The group entered Somalia after flying into Kenya through Egypt.

One phone intercept shows that Rachid, who is also Belgian, had acknowledged his membership of al- Qaeda in a conversation with his wife, who was living in Belgium, and also sent pictures depicting him “equipped with weapons of war.”

In Belgium, a warrant for his arrest was issued the same day as Mustapha’s by Magistrate Isabelle Panou over his connection to al-Qaeda and al-Shabaab. Court-sanctioned wiretaps of Rachid’s phone revealed that his wife Berrou Loubna knew of her husband’s terrorist activities, including reasons for his departure to Somalia.

Black market

The phone traffic confirmed that Rachid and Mustapha were in Somalia, with Rachid declaring that they expected to die in jihad. Rachid is reported as saying he was in charge of a squad of 10 mujahideen and celebrating the February 2012 merger of al-Shabaab and al-Qaeda.

According to Interpol, Berrou received instructions from her husband to pass information around jihadist circles, websites and to raise funds.

All this happened partially and sometimes wholly on Kenyan soil.

According to intelligence sources, Rachid, Mustapha and Bouyabaren entered Kenya from Somalia through Lamu in May 2012 and travelled in a private car to Malindi, where they were received by an Arab-speaking contact. They went straight to a local black market money exchange with wads of US dollars, which they reportedly still had when police captured them.

Experts in Malindi and Mombasa believe the three suspects pleaded guilty as a tactic to delay extradition to Belgium or possibly plot to escape from poorly guarded Kenyan jails.