[1999] KEHC 2 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA

Misc. Crim. Appli. 6 of 1999

THE REPUBLIC EXPARTE

ALI MAHFOUDH SALIM . . ............................................................ ...... APPLICANT

AND

1. THE FEDERAL BUREAU OF INVESTIGATIONS (FBI)'

2. THE COMMISSIONER OF POLICE THROUGH

3. THE HONOURABLE THE ATTORNEY GENERAL………. RESPONDENTS

RULING

It is a matter of common notoriety, and I can therefore takeJudicial Notice of it, that on 7th August 1998, the entire Nationof Kenya was stunned. It was stunned by a devastating blast in thecentre of its Capital City, Nairobi, believed to have been a Bombblast. Hundreds of people died while thousands of others wereinjured and maimed. Property was destroyed extensively. It isalso a matter of common notoriety, and I take Judicial Notice ofit, that some persons suspected to have been involved in thatdastardly crime are facing trial in the United Estates of America.How or why they ended up there would however be a matter ofconjecture and beyond the scope of the matter now before me forconsideration.

The circumstances surrounding the application relate to thatmomentous event.

The Applicant, ALI MAHFOUDH SALIM (Ali) is a Kenya Citizenordinarily resident and carrying on business in Mombasa.Helawfully operates a small workshop at Majengo wherein he builds, andassembles bodies for motor vehicles and carries on welding repairs.1He employs several workers.

On 2. 2.1999 Ali was at his workshop when some six people -three white men, one white woman and 2 Africans-went there. Theysaid, without identifying themselves by production of ID Cards,that they were officers of the American Federal Bureau, ofInvestigations (FBI) and were conducting investigations relating, tothe Nairobi Bomb,blast. They questioned workers and generallystayed in the .premises from 9 a.m. to 5 p.m. ^The following day3. 2.99 they.returned with other three white women, making in all9 persons and continued to question Ali and his workers. They alsotook various photographs. At the end of the.day, at 5 p.m. Aliwas ordered to report to Makupa Police Station the followingmorning 4. 2.99 at 9 a.m. He complied and went with his brother;FAIZ MAHFOUDH SALIM (FAIZ). Ali was taken inside the PoliceStation but 'Faiz was asked to stay outside. He waited until lunchhour when his brother, accompanied by the FBI Agents, left thestation and headed for Ali's home. Faiz assumed that he would belet free there and did not therefore; accompany them. In theevening however he was informed by Ali's son that the FBI Agents

had indeed been home but they took Ali's passport and left with him

to an unknown destination.

Faiz immediately went to Makupa Police Station to makeenquiries about the whereabouts of his brother. The Officers theresaid they did not know him or his whereabouts. Faiz then visitedall the other Police Stations in Mombasa who similarly deniedknowledge of his brother or the involvement of the American FBIAgents. There were no entries made in any Daily Occurrence Book inany of the Police Stations to confirm that his brother was inlawful custody and if so, for what reason. Faiz was alarmed.

Fortunately, whilst he pondered what to do next outside NyaliPolice Station, a young man at the station who seemed to be in theknow, confided in Faiz that his brother was being held in thatStation and had been tortured. The Police themselves at the ReportDesk would not confirm Ali's presence there although they refusedto deny it. His brother had been missing for more than 24 hoursafter being taken away by persons who said they were FBI Agents andKenyan Police Officers,

Faiz therefore took the next logical and legal step and cameto this court under Certificate of Urgency on 5. 2.1999. He tookout this Application and named the FBI and the Commissioner ofPolice through the Attorney General of Kenya, as the Respondents.Various Sections of the law were invoked:-

(i) Section 389(1) & (2) Criminal Procedure Code

(ii) Section 123 Criminal Procedure Code

(iii) Section 81, 82 and 84 of the Constitution of

Kenya.The prayers sought in the Application were these:-

"1, THAT directions in the nature of Habeas Corpusdo issue directed to the Federal Bureau ofInvestigations and/or its agents and/or its

employees present in the Republic of Kenya,Officers Commanding Makupa Police Station,Port Police Station and or any other PoliceStation in the Republic of Kenya or any otherauthority . or any of them including theiragents and, or representatives in the CoastProvince and/or the Republic of Kenya to havethe body of the said Applicant, Ali MahfudhSalim, produced before the Honourable Court atsuch time as the Judge may direct.

2. THAT the Respondents Commissioner of Policeand the Federal Bureau of Investigations (FBI)through its Commanding Officer or person ofsimilar capacity do appear before thisHonourable Court together with the original ofany Warrant or Order for the detention of theApplicant and show cause why the Applicantshould not be produced and released .forthwith.

3. THAT pending the hearing of this Summonsinter-partes, the Commissioner of Police and

' the Provincial Police Officer (PPO) or anyofficer in '"charge of the police , in the areawithin whose jurisdiction the Applicant isdetained, the Officers in-Charge, MakupaPolice Station and Nyali Police Station or anyother Police Station'in the Republic of Kenya

holding the Applicant or any of them beordered to; release the Applicant on bail onsuch terms and conditions as the Court deemsfit to make.

4. THAT the Court do declare that the Applicant'srights under the constitution have or areabout to be infringed.,r

5. THAT pending the determination of theapplication, the Commissioner of Police and-the Federal Bureau of Investigations (FBI),either through themselves or their agents,officers and/or subordinates be restrainedfrom deporting or removing the Applicant fromthe territory of the Republic of Kenya.

6. THAT for the purpose of giving effect to order5 applied for hereinabove, a further order doissue to the Principal Immigration Officer toensure that no one or any entity shall beallowed to remove the Applicant or his bodyfrom the territory of the Republic of Kenyathrough any of the exit points of theRepublic".

I heard the Applicant's Counsel on 5. 2.99 and I was satisfiedthat prayers 1, 2,5 and 6 ought,to be dealt with immediately andorders were issued and served forthwith pending the hearing of theApplication interpartes after service.

Learned Senior State Counsel, Mrs. Mwangi, and learned Counselfor the Applicant, Mr. Taib, appeared before me on 9. 2.99. BothCounsel confirmed that the Applicant had been set free at 2 p.m. onSaturday 6. 2.99. As far as Mrs. Mwangi was concerned, the releaseof the Applicant answered fully the application for Habeas Corpus

and the application had been overtaken by events. Not so; for Mr.Taib.

It was crucial, in his submission, to determine the legalityor Constitutionality of the activities of the Agents of theAmerican Federal Bureau of Investigations who appeared to haveinvaded the Sovereign' State of Kenya to harass, intimidate andtorture its citizens without following the laws of this country.It was also crucial for the Respondents to make a formal return onthe Habeas Corpus application instead of merely making casualremarks that the Applicant was a free man.

Ali himself swore and filed an Affidavit on 9. 2.99 in supportof the averments made earlier by his brother Faiz, and did, at somelength, encapsulate his fears on the activities of the FBI. Thosefacts are best reproduced verbatim:-

"7. That at this point in time I was terrified andalmost out of my wits with fear because ofseveral reasons some of which are enumeratedhereinbelow:-(a) On Wednesday 3rd February 1999 in the morning,a group of about nine (9) FBI agents descendedon me and my premises and swarmed all over theplace and began arresting my employees,including Mr. Abdalla (welder) Mr. Ambrose(painter) and Mr. Kazungu (welder). The sightof all these police officers descending on my

premises terrified me and my employees.

(b) On the same Wednesday evening the 3rd of

February 1999, three (3) FBI agents and a CID

officer returned and threatened that they

would lock me up in the cells because I was

not giving them the information they wanted.

This alarmed me as it meant that I would have

to admit to falsehoods and admit knowledge of

matters I am not privy to if I was to keep out

of jail.

(c)The FBI agents also. told me that they would

ensure that my business would be closed down

unless I co-operate and gave them the

information they wanted. This was also on

Wednesday evening.

(d)On Thursday the 4th February 1999 the FBI

agents again told me that they would lock me

up unless I cooperate. I told them I did not

have knowledge of the matters they queried me

on and the FBI agents told me to think

carefully of my family who will surely suffer

if they locked me up and I should begin to

cooperate if I did not want my family to

suffer.

(e)On the same Thursday the 4th February 1999,

the agents further threatened to disrupt andruin my business unless I gave them and/oradmitted knowledge of the information theywanted. The said agents specifically told methat .they would cause the relevant taxdepartments and in particular the Income Taxand Value Added Tax (VAT) departments todescend down on my business and to ensure theythoroughly crippled my business byinvestigating my books in detail with the soleaim of thereafter imposing, crippling anddebilitating taxes to ensure the closure of mybusiness as a punishment to me unless Icooperate.

(f) On the same Thursday sitting the said agentsshoved me, roughed me up, kicked and beat me,always harshy telling me to speak the thingsthey wanted. The kicking was particularlyvicious and was meted out by the officer whowas seated opposite me.

(g) .On the same Thursday sitting, one of the FBI

agents, whom I don't know by name but whom Ican identify physically, threatened me clearlyand specifically, that unless I gave them theinformation they wanted, they will hand me

over to the local CID police who would tortureme thoroughly for them until I admitted tothem matters of their interest and gave themthe information they wanted. The insinuationwas that the CID were well known for this kindof thing and it was intended to frighten me,which it did.

(h) The FBI agents described me as callous andinsensitive and asked me why it did not botherme that over 200 people died. If I cared atall I would tell them what they wanted toknow.

(i) As I was being shoved around and kicked, I wasreminded constantly that I was a killer, (eventhough I denied this most stringently andcontinued to do so), and that I had killedover 200 people and I had better speak thetruth for my own sake. It did not matter thatI denied all their allegations and protestedmy innocence. My pleas fell on deaf ears.

(j) The FBI agents told me that they would alsoextradite me to the United States of Americaunless I spoke the truth and gave them theinformation they required. They infact statedto me the flight number of the actual plane.

they would put me on for this purpose.(k) The FBI agents fortified their above threat ofextradition by actually taking me home fromthe Police Station and there picking up andconfiscating my passport whereupon they madeit abundantly clear that unless I cooperatedwith them I was going to be on the next-flightto the US where I would be at their mercy andfar away from my family and from any help.(i)The FBI agents upon inspection of my passportsaid it would suffice as proof that I went toYemen for terrorist training and they wouldcharge me with that offence, even though thatwe all knew there was :no substance to the saidintended charge.

(m) The said FBI agents "did actually carry outtheir threat to lock me up and I was terrifiedthat they would do all the other things theyhad threatned to do, including extraditing me.(n) On Friday 5th February 1999, the FBI agentsagain came to Nyali Police Station and took meout of the cells. They asked me on theverandah outside the cells to tell them thetruth on the identity of the person involvedin the bombing or they would lock me again in the cells. True to their word, they returnedme to the cell and locked me up when I toldthem I knew nothing of what they queried.They went away.

(o) They gave instructions that I should not beseen by anyone, not even my family. This alsoterrified and isolated me andI feltabsolutely alone, fearful, abandoned andforsaken.

(p) The FBI agents also said that I should not beseen by any lawyer and indeed, none of myfamily members or my lawyer ever had access tome at all throughout my period ofincarceration.

(q) The FBI agents told me on Saturday 6thFebruary 1999 that I should not think they areafraid of any court orders and that the courtorders I had brought to them would not be ofany help to me. I was not sure what was goingon as I had no contact with the outside worldand did not ^know what court orders they weretalking about or referring to. I came laterto find out that they were the court ordersissued by the Honourable Justice Waki on 5thFebruary 1999, They told me that in spite of the court orders, they could take me away andmake me disappear without a trace as they havedone to others already.

(r) The FBI agents told: me on the same day thatthis was my last chance to talk or they wouldtake me to Nairobi, 'when I did not volunteerany of the information they sought, primarilybecause I knew nothing about the issues, theyremoved me from Nyali Police Station and saidthey were taking me to Nairobi. I feltthunderstruck. Who would I turn to for helpin Nairobi? What would be my fate? Thesewere some of the questions that gnawed on mymind and tormented me as I felt so helplessand alone.

(s) They constantly kept up their threats anddemanded to know even how much money I hadpaid my lawyer, saying that this proves I am aterrorist with financiers who had hired alawyer for me.

(t) They forced me to write a statement on thatSaturday at the Provincial Police Headquartersand made me know that they were toying withthe idea of releasing me, but would only do soif I signed a document confirming that I was not beaten or tortured. I agreed to sign

because I was frightened if I did not do so I

would not be released and I desperately, wanted

a chance to see any one of my family to

arrange to help me and get .a lawyer to act for

me as I was now nearing the end of the road in

terms of my ability to keep my sanity with me.

I signed the document under duress and whilst

under threat of pain and of further

imprisonment and without my consent at all. I

had by this time spent six (6) days under

intense interrogation and three (3) days in

the cells and I had had enough".

In view of those submissions and averments, Mrs. Mwangi

assured the court and the Applicant that the FBI Agents were

legally in this country pursuant to an existing Treaty between the

two countries catering for hot pursuit of suspected criminals and

their extradition for trial. The State would shortly produce a

copy of such Treaty and also file an Affidavit in reply to (the

matters deponed to; by the Applicant in his Affidavit filed on

9. 2.99. '

I made an order that a copy of the Treaty be filed and that aresponse be made by way of Replying Affidavits to the variousaverments made in the Application. It seemed to me, and l sofound, that the matter before me went beyond a mere application for Habeas Corpus and it involved human and constitutional; rights of acitizen of this country which he alleged had been violated byforeign agents and the Kenya Police. Intertwined with that was thewider aspect of State Security. On any view, it is a matter ofcolossal magnitude.

The Attorney General did not comply with the order within the14 - day period given. On application, and there being noobjection from the applicant's Counsel, I granted an indefiniteextension of time to facilitate compliance, with liberty to eitherparty to apply.

The parties returned to court on 31. 5.99 when it becameapparent that the Attorney General had no intention of complyingwith the earlier order. Learned State Counsel, Mr. Ngeno, thenappearing for the Respondents, confessed that- there was no Treatyas earlier purported between Kenya and the United States ofAmerica. He also confessed that there was no one either from theFBI or the Police Force who was willing to swear any Affidavit inreply to the matters of fact deponed to by the Applicant. Hemerely offered an explanation that the FBI Agents may have beenoperating under the auspices of the International PoliceOrganisation'(INTERPOL), but he gave no further details.

In my brief Ruling I found such confessions a shameless about-face considering the seriousness of the issues submitted fordetermination. There was a non-compliance with a court order andthe Attorney General could not be heard to make oral denials of

Facts stated on oath by the applicant . those matters of fact remain uncontroverted . I gave liberty to the attorney general to respond to any issues of law that may arise in the course of the prosecution of the application . the application was then fully argued and is the subject matter of this ruling

Section 389(1) of the criminal procedure code (cap 75) laws of Kenya as far as is relevant states

389 (1) The High Court may whenever itthinks, fit direct -

(a) that any person within the limits of Kenya bebrought up before the court to be dealt withaccording to law;

(b) that any person illegally or improperly•detained in, public or private custody withinthose limits be set at liberty;

(c)

(d)

(e) that any prisoner within those limits beremoved from one custody to another for thepurpose of trial; and

(f).... "

It is a codification of an ancient jurisdiction in common lawfor protecting the liberty of the subject by speedy and summaryinterposition by the court. An effective means of immediaterelease from unlawful or unjustifiable detention pending inquiryinto the cause of his imprisonment. That this court has thejurisdiction to issue directions in the nature of Habeas Corpus adSubjiciendum is not therefore in doubt.

As stated above l granted prayers I, 2, 5, & 6 of thisApplication ex parte on the briefs the Affidavit evidence laidbefore me. The matter was due for hearing lnter parties on 9. 2.99and the orders were in the meantime served on all affected parties.

As stated earlier the Respondet attended, court on 9,2,99through the Attorney General and stated from the bar that theAppllicant was already a free man he had been released three daysbefore the hearing of the Application,

Learned Counsel for the Applicant has however submittedvehemently that, that was not legal compliance with the directions issued by the court and served on the Respondents. There must, hesubmitted, be a Return filed showing the cause of the applicant'sdetention with sufficient particularity, The Applicant, hesubmitted, was not released due to some act of charity on the partof the Respondents but as consequence of court orders having beenserved on the Respondents. The filing of a return is thereforemandatory.

For this proposition, Mr. Taib cited Halsburys Laws of EnglandVol.11 3rd Edition at Page 43 and 44. I have perused the passagecited and I am persuaded that it is a mandatory requirement of lawthat a person against whom directions .are issued for production of)the body of the person allegedly unlawfully detained should file aReturn clearly showing the cause of the detention, for the court toexamine and decide on the Applicant's discharge or otherwise. Asstated in Halsburys para 87:-

"If it is impossible for the person to whomthe writ is directed to produce the body of the person alleged to be in his custody byreason of his having parted with the custodyof that person before the service of the writ,he must nevertheless make a return setting outthe facts unequivocally and distinctly andshowing the reason why he is unable to obeythe writ. Such a return will constitute agood and sufficient return; for the object ofthe writ is not punitive, but remedial.The fact that a prisoner whose production hasbeen ordered has been discharged from custodybefore the return should be stated on thereturn, and in that event the cause of takingand detainer need not appear on the return".

In this case the Applicant was not discharged before serviceof the writ but as a consequence of it. Failure to file a returnwould mean that the applicant was .detained for no sufficient reasonand therefore an order for his discharge must formally issue. I soorder. That would dispose of the matter of Habeas Corpus.

The Applicant goes further and seeks a declaration underprayer 4 that his Constitutional rights have been violated. Thereis Constitutional provision under Chapter V of the Constitution ofKenya for 'the. Protection of, Fundamental Rights and freedoms of theindividual. Section 81 protects the freedom of movement throughoutKenya, the right to enter and leave Kenya and immunity fromexpulsion from Kenya. Other rights and freedoms are enumeratedunder Section 72 to 83 of the Constitution and there is provision under Section 84 for enforcement of those provisions. It is common

ground that the High Court has original jurisdiction to determine

such applications. But how does the High

such jurisdiction?

Considerable heat has been generated in the p

"the right to apply to the High Court forredress conferred by article 19(1) (thisarticle is, in all material respects, similarto Section 84(1) of the Constitution of Kenya)was expressed to be subject to paragraph (6)of that article and since neither theParliament nor the rule-making authority ofthe Supreme Court had exercised their powerunder article 19(6) to make provision withrespect to practice and procedure the methodwas unqualified and the right wide enough tocover application by any form of procedure bywhich the High Court could be approached toinvoke its power, and an originating motionwas one of the ways by which that could, bedone". (words in brackets are mine).Chesoni C.J. quoting Warrington J. In Re MEISTER, LUCIUS AND

BRINING LTD [19141 31 TLR 28 also held:

"where the Act (sic Constitution) merelyprovides for an application and does not sayin what form that application is to be made,as a matter of procedure it may he made in anyway in which the court can be approached".

and: '

" anyone who wishes to invoke the courts

jurisdiction for protection of the fundamentalrights and freedoms guaranteed under Section70 - 83 (inclusive) can do so by plaint, Order53 of the Civil Procedure Rules or OriginatingMotion".

The application before me is a Chamber Summons and not any ofthe three modes referred to in that authority. Is the application'therefore incompetent? I think not.

The reason is that the main thrust of the Application was toseek directions on Habeas Corpus and that procedure is prescribedunder the law. The Applicant has had access to the court in amanner sanctioned by the law for seeking one remedy, and he wouldnot, in my view, lose his right to address the same court onanother prayer simply because the procedure required thereunderwould be different. It is for the court to decide in such event,in exercise of it inherent powers, whether to consider thesubstance of the application or insist on a different mode oftrial Considering that the Respondents have not raised anyobjections to the procedure adopted and that on any view, themanner of making the prayer causes no prejudice to the Respondents,I shall consider the substance of the prayer, the defect inprocedure notwithstanding. All that is sought in the applicationis a Declaration, and nothing more.

I have found, in the absence of the benefit of a "Return"that the applicant was detained on insufficient grounds. The•rights and freedoms of the individual under the Constitution arequalified under the same Constitution and it is incumbent on theperson or persons against whom complaints are made to bringthemselves under those qualifications. The qualifications includeviolations for which the law provides in the interests of defence,public safety, public order, public morality, or othercircumstances spelt out in the Constitution. There is cold silencefrom the Respondents in this matter about what laws, if any, theywere operating under in seeking information and interrogating theApplicant. There is indeed a concession that the FBI has no legalbasis for operating in this country. That is in stark contrast tothe vivid chronicle of human rights violations perpetrated on theApplicant which remain uncontroverted and must therefore bepresumed to be truthful. I am not, as a court of law, entitled toimagine that the Respondents had good and valid reasons for theiractions. The Kenya Police is at liberty and has the Constitutionalmandate to investigate crime and to bring criminals to book. But 21 there are clear Laws governing this country and they must be shown to be complied with; particularly by all law enforcement agencies of whatever description. I say with the Court of Appeal for Eastern Africa in Njuguna s/o Kimani & Others V Reqinam (1954) XXI EACA 316: "The notion that the police can keep a suspectin unlawful - custody and prolong theirquestioning of him by refraining from formallycharging him is so repugnant to the traditions and practice of English Law that we finddifficulty in speaking of it with restraint.It must be recognised that once a policeofficer has made up his mind to charge anyperson, it is his duty to inform that personas soon as practicable and thereafter toproduce him before a Magistrate as required bySection 32 or Section 35 of the CriminalProcedure Code". The Constitution of Kenya does not permit the police, or anyother law enforcement agency for that matter, to break the law inorder to detect crime". , I am in no doubt in this case, and in my judgment, that acitizen's right to his personal liberty was interfered with in amanner unauthorized by law. Accordingly I grant prayer 4 of theapplication as prayed against the Respondents jointly andseverally. The Applicant shall have costs of this application on. thehigher scale.

Dated at Mombasa this 14th day of June 1999

P.N.Waki

JUDGE