At the end of a sensational trial of three women suspected of being Al Shabaab members, a Mombasa court last Thursday acquitted them due to lack of evidence.
Ummulkheir Sadri, Khadija Abubakar and Halima Ali just like Haniya Sagar, the wife of slain Islamic preacher Aboud Rogo, walked to freedom after a trial which started on May 6, 2015.
But for Ms Sagar, still being held because the State wants to appeal, has a case different from the three who have been out on a Sh500,000 bond.
After their acquittal, the State sought an order for their bond not to be released after the magistrate rejected an application by principle prosecutor Eugene Wangila.
“As far as I am concerned, I have no jurisdiction in this case after delivering my judgment,” said Mombasa Chief Magistrate Evans Makori who ordered the release of the bond to the suspects. “Your honour I am applying for certified copies of the proceedings to enable appeal against this decision. I’m also appealing to have the release of bond to the acquitted persons until after I have filed the appeal,” said Wangila.
The acquittal comes barely a week after Rogo’s wife, who had been sentenced to 10 years imprisonment was acquitted by the High Court for lack of evidence.
Sagar was acquitted by Justice Dora Chepkwony after the prosecution failed to link the widow to a terror attack at Central Police Station in Mombasa.
Nassir Abdalla Skanda, who was acquitted of terror-related charges last December, disappeared without a trace after being out for nine months.
According to Skanda’s mother Jawiry Nassir, her daughter was abducted from a building last month at Nyali where he was working as a construction worker
For Sadri Khadijah and Maryan Said (now deceased) first appeared before Mombasa Senior Principal Magistrate Richard Odenyo on May 6, 2015, and pleaded not guilty to the offence.
Halima Adan was was jointly charged with the trio of being members of Al Shabaab.
Khadija and Ummulkeir were charged with instigating the commission of terrorism by being in possession of communication gadgets including mobile phones.
Khadija faced another charge that on February 2, 2014, she organised a meeting at Masjid Musa mosque to further terrorism activities.
But after hearing nine witnesses which were called by the Director of Public Prosecutions, the magistrate faulted the police for bungling the investigation by failing to bring evidence to incriminate the accused persons.
The magistrate said the prosecution witnesses did not connect the accused with the communication gadgets and literature they were found with.
The literature found must be connected to the targeted operation or sympathy group they are accused of joining. In this case, other than proposing that the suspects were on a journey to join a terror group after being arrested at Elwak and Kyumvi in Machakos, there was no evidence to link them to the group.
The magistrate observed that the police did not lay the basis that they were destined to join Al Shabaab, saying the police premised their case on travel alone. “The terror group they were to join was initially unknown and still remain unapproved,” said Mr Makori.
The magistrate observed that the police failure to follow the right procedures in collecting evidence was their undoing.
Acquittal in terror cases is not localised in Mombasa only but all stations where terrorism matters are being handled in Kenya. Reasons for acquittal are the same. Even Makori himself admitted that prosecution of terror matters is a complex affair. He said there was need to check on the personnel handling terror cases to ensure they tie up their cases well.
He cited a case where police say a a mobile phone was used by the suspects but during the evidence, they fail to call experts.
The acquittal of the three women who had been branded ‘Jihadi brides’ have sent the police to the drawing board as they agonise over why most of the terrorism cases have collapsed at the end of trial.
However, Vincent Monda, a senior State lawyer insists the prosecution of terror cases also depend on the understanding of the judicial officer presiding over it and the prosecutor.
Criminal lawyer Jared Magolo supports the magistrate’s stand that it was the police to blame. The police arrest suspects without establishing if the offence had been committed.
He cited a Mtwapa case where his clients were arrested allegedly while heading to Garisa to meet terrorists.
“If the police knew they were going to meet the terrorists, why didn’t they follow them up to Garissa and arrest them together with the terrorist?” asked Magolo.
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