Police officers display an AK 47 riffle recovered after police stormed the Masjid Mussa mosque in Mombasa on February 2, 2014. The High Court has declined to compel the police to produce a man reported missing after his alleged arrest during the riots at Masjid Musa Mosque in Mombasa. PHOTO KEVIN ODIT. NATION
By Vincent Agoya & Galgalo Bocha
Saturday, February 15, 2014
Two courts on Friday issued contradictory orders regarding a man who is reportedly missing after his alleged arrest during the riots at Masjid Musa Mosque in Mombasa.
In the High Court in Nairobi, Lady Justice Mumbi Ngugi declined to compel the police to produce the man, instead directing the file seeking the production of Mr Hemed Salim Hemed be placed before a Mombasa High Court where the alleged violation of rights took place.
Mr Hemed was allegedly arrested when security forces were called in to disband a suspected radicalisation meeting at the Masjid Musa mosque in Mombasa.
He was, however, not in court when other suspects were charged and has not been seen since.
However, the High Court in Mombasa ordered police to produce the man in court.
While granting an order of habeas corpus applied by Mr Masoud Salim Hemed, Justice Edward Muriithi ordered police to bring before him Mr Hemed Salim Hemed Monday next week at 10 am.
He sued the Director of Public Prosecution, Inspector General of Police and the Kenya Police Service for wrongly detaining his brother and failing to bring him to court within 24 hours.
“In accordance with article 25 of the constitution, the right of orders of habeas corpus cannot be limited and having seen the photography of the arrest of the applicant’s brother and upon reading the affidavit of the applicant and taking note that it is now more than 24 hours since the applicant’s brother was arrested and he has not been taken to court on charges or released from custody,” said Justice Muriithi.
In his supporting affidavit, the younger Hemed told the Judge his brother was one of the people arrested on February 2 during the Masjid Musa chaos with his arrest prominently featured on two local television channels.
Through lawyer Yusuf Abubakar he told Justice Muriithi that he was arrested while in perfect physical health but he and other family members are apprehensive that police might have killed him.
“The applicant said he saw on NTV and Citizen police arresting his brother and heard them saying that he had a gun. He is apprehensive that they might have revenged and killed him,” the lawyer said.
Mr Abubakar added that the family and a human right organisation, Haki Africa, visited Makupa, Port, Urban and Railway police stations and Shimo La Tewa prison in an attempt to trace the missing man without any success.
“He was not among those who were taken to Shanzu law courts on February 3, 2014 where police were allowed to continue detaining suspect for five days,” he added.
Mr Hemed further told Justice Muriithi that he and Haki Africa officials also visited Coast General, Mombasa, Pandya, Aga Khan and Mewa Hospitals to find out him if his is admitted or his body taken to mortuaries.
The applicant also expressed his concern that his brother might have been extradited to a foreign country for interrogation and definitely tortured.
'VIOLATION OF CONSTITUTIONAL RIGHTS'
In the Nairobi suit, the Attorney General and the Inspector of Police are named as first and second respondents respectively and are accused of failing to safeguard the man’s “constitutional rights.”
“The failure to produce Mr Hemed in a court of law within 24 hours is a violation of his constitutional rights,” the petition filed at the Milimani Law Courts read in part, but Justice Mumbi Ngugi has directed it be placed before a Mombasa court.
She said: The person on whose behalf this petition is said to be brought was allegedly arrested in Mombasa on February 2, this file is therefore transferred to the High Court, Mombasa within whose jurisdiction the matter lies and declined to grant an order to compel the police to produce the man within the next 24 hours.
She directed that the file “be placed before the presiding judge at the Mombasa High court on February 18 for directions.”
TERRORISM CHARGES
More than 70 people arrested two weeks ago following chaos have been charged in court. They have denied the seven terrorism-related charges against them, including being members of the Somali militant group Al-Shabaab. (READ: 129 taken to court over Mombasa riots)
Other counts include being found with articles connected to terrorism, incitement to violence, robbery with violence preparation to commit felony, possession of a firearm and ammunitions.
33 people including three women were released from custody after the prosecution dropped charges against them after the prosecution said nothing linking them to the offences had been gathered.
The High Court judge in Mombasa ordered for unconditional release of 22 minors among the suspects netted at the mosque.