[2017] KEHC 9197 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL REVISION NO. 200 OF 2017

WAISS ABDULAZIZ MOHAMMED.………..….….....APPLICANT

VERSUS

REPUBLIC……………………….....................……RESPONDENT

RULING

Background.

The brief background to this application is that the Applicant was arrested on 1st July, 2017 and brought before Hon. Mugure on 3rd July, 2017 pursuant to Article 49(f). At that appearance the Respondent made an application for the extension of the Applicant’s detention for 30 days to enable the investigations in the matter to be concluded. The application was made in Misc. Criminal Application No.2117 of 2017-A.T.P.U v. No. 88892 Waiss Abdulazia Mohammed(hereafter that application). The Applicant contends that the application was unconstitutional given the fact that that Applicant was not charged or released during that hearing. That application before the lower court was brought under Articles 49(1)(f), (g) & (h) of the Constitution, Section 33 of the Prevention of Terrorism Act and all enabling provisions of the law. The learned magistrate gave an order directing the detention of the Applicant for thirty days which order is the culmination of the instant application.

The application

The instant application which is brought by way of a Chamber Summons brought under a Certificate of Urgency dated 13th July, 2017 majorly seeks an order to review by setting aside the afore stated order of the learned magistrate. Consequently, the court is urged to either direct that the Applicant be charged or set free or any other order be granted as the court may deem fair and just.

The application is premised on grounds, inter alia, that the Applicant who is a police officer was presented before the Chief Magistrate’s Court on 3rd July, 2017 vide Misc. Cr. App. No. 2117 of 2017 and an order for his detention for thirty (30) days issued pending completion of investigations on his connection to terrorism activities. No charge was preferred at the time the Applicant was presented before the court. It is contended that the continued detention of the Applicant is unconstitutional and in gross violation of the Applicant’s right of presumption of innocence as provided under Article 50 of the Constitution. In addition, it is advanced that the Applicant was ordered detained in an undisclosed location which again violated his constitutional right of access to an advocate or his family in contravention of Article 50(1)(a) and (c) of the Constitution. Further, it is the Applicant’s contention that pending a formal charge he should be released on bail on such terms as the court may deem fit.

The application is supported by the affidavit of Agnes Muthoni Wanjiku, the wife of the Applicant sworn on 6th July, 2017. The gist of the affidavit is that it was unconstitutional to detain the Applicant for 30 days without a charge. She deposes that since his detention, the Applicant has not been accorded an opportunity to access his family, changing clothes or his advocate thus violating his constitutional right to liberty. The same also violated Article 28 of the Constitution which protects the inherent dignity of a human being. It amounts to torture both physical and psychological. She deponed that she has known the Applicant for the last seven years and to the best of her knowledge the Applicant has never been involved in any terrorist activities. To the contrary, he suffers a psychiatric problem which has exhibited itself with suicidal tendencies. For that reason, what the Applicant requires is medical attention rather than detention. She further states that the use of extreme vulgar and abusive language by the Applicant on the face book posts are a manifestation of expressing himself to relief his psychological problems. In that regard, she requests that the Applicant be either brought before the court to take plea or be granted bond pending further investigations. She concludes by stating that the application made by the Respondents for the detention of the Applicant was vexatious and an abuse of the court process. She urges that the current application be allowed in the circumstances.

Learned counsel Mr. Onyango argued the application on behalf of the Applicant. While reiterating the grounds on which the application is premised and the averments of the supporting affidavit, he added that Section 33 of POTA does not permit the detention of a suspect without a charge. Further that even if the provision permits the detention, it contravenes Article 2(2) of the Constitution which provides that: “no person may claim or exercise State authority except as authorized under this constitution.” That is to say that under Section 33(2) of POTA, the investigating officer did not satisfy the conditions set therein to warrant the detention of the Applicant for 30 days. Simply stated, it was not demonstrated that there were compelling reasons to warrant the continued detention of the Applicant in police custody.

Counsel urged the court to be persuaded by a ruling of Hon. Justice Kimaru in the case of Michael Rotich vs Republic [2016] eKLR in which the judge held that it was in contravention of the Constitution and in particular Article 49(1)(a) of the Constitution to detain an arrested person without a charge. Counsel urged the court to be persuaded by the finding that where the police had not completed investigations, the best approach was to bring the arrested person on a holding charge and request for time to complete investigation. Counsel submitted that the police were using the machinery of the Judiciary to violate the right to liberty of the Applicant. He went on to submit that pursuant to his detention, the Applicant had been subjected to torture as he had been denied his right of access to his family, clothing and advocate.

Respondent’s reply

In opposing the application, learned Principal Prosecution Counsel Mr. Duncan Ondimu relied on an Affidavit in Reply sworn on 17th July, 2017 by PC Geofrey Busolo, the investigating officer in the case. In a nutshell, learned counsel submitted that the detention of the Applicant for 30 days was warranted and conforms to Article 49(1) (g) of the Constitution. Furthermore, he was informed of the reason for his detention. In addition, pursuant to Section 33(2) of POTA, the learned magistrate was satisfied as to the nature of the offence for which the Applicant was arrested, the general nature of the evidence on which the Applicant was arrested, the inquiries that had been made in relation to the offence and any further inquiries proposed to be made by the police and the reasons necessitating the continued detention of the suspect in custody.

In his oral submission and in support of Section 33(2), counsel heavily relied on the affidavit sworn (hereafter the said affidavit) by the investigating officer P.C. Geoffrey Busolo on 3rd July, 2017 in support of the application in Misc. Cr. App. No. 2117 of 2017 in which the order for detention was granted. Counsel submitted that the Applicant is suspected to be linked to terrorism vide his posts on his face book page which were annexed to the current application. He added that the posts are meant to encourage and radicalize other persons to commit acts of terrorism. Specific reference was made to posts made on 28th June, 2017 and 5th July, 2017 which I will refer to here after. These, according to the Respondent, have accorded the Applicant an opportunity of links to the Al Shabab terrorist group in Somalia. Counsel specified the offences exhibited by the posts on face book as radicalization contrary to Section 12(D) of POTA, membership of a terrorist group contrary to Section 24 of POTA, soliciting for a commission of a terrorist act contrary to Section 9(1) of POTA, promoting terrorists act contrary to Section 9(A) of POTA and possession of articles connected to terrorism contrary to Section 30 of POTA. Counsel submitted that it was believed that the Applicant had other associates including online pasonas and therefore if he were released before the investigations were completed, he was likely to continue committing the offences or interfere with the investigations. These, according to the counsel, were serious offences which warranted the detention of the Applicant for the thirty (30) days.

Referring to the case of Michael Rotich vs Republic (Supra), counsel submitted that it was distinguishable from the instant case. He submitted that in that case, the application before the court was made under Article 49(1)(b) of the Constitution as opposed to POTA. Further that the court did not consider the import of Article 49(1)(g) of the Constitution. He specified that in that case, the Applicant was being investigated for undisclosed offences whereas in the instant case, the Applicant is being investigated for offences disclosed under paragraph 11 of the said affidavit. In any case, Article 24 of the Constitution provides for limitation of rights as may be provided by any written law. POTA is one such law that has provided for the limitation. Article 24 on the other hand must be read together with Article 25 which outlines non-derogable rights.

Mr. Ondimu emphasized that terrorism is a threat to the country. That the Applicant being a police officer posed a great danger not only to his colleagues but also to the public as he was well versed with the security mechanisms of the security agencies. He gave reference to an incident in which a radicalized police officer at Kapenguria Police Station attacked other police officers within the station. While asserting that the investigations were not complete, counsel submitted that as late as 13th July, 2017, the investigating officer had called the wife of the Applicant to go and record a statement but had not cooperated. He also denied that the Applicant had been subjected to torture. The non-disclosure of the actual Police Station in which he was detained was for purposes of security. Furthermore, he had been provided with all basic facilities that he required. It was therefore in the interest of justice that the Applicant continues in detention until the investigations were complete. He submitted that the application lacked merit and the same ought to be dismissed. Counsel referred the court to a ruling in High Court (Nairobi) Misc. Cr. App. No. 411 of 2016 as consolidated with Misc. Cr. App. No. 102 of 2017 - Mohamed Abdi Ali and Another vs Republic and a judgment of the Supreme Court of India beingCr. Appeal No. 2587 of 2014 -Neeru Yadav vs State of U.P and another.

Determination

This application is hinged on Section 33 (1), (2), (3), (4) and (5) of POTA which provisions I will give regard to where necessary. Under sub-section (4) where a similar application is made, the court may release the suspect unconditionally, release him conditionally or order for his continued detention. For a court to order a prisoner’s continued detention it must satisfy itself of the compelling reasons for the continued detention as set out in Subsection (5) that;

“A Court shall not make an order for the remand custody of suspect under subsection (4)(c) unless-

(a) there are compelling reasons for believing that the suspect shall not appear for trial, interfere with witnesses or the conduct of investigations, or commit an offence while on release;

(b) it is necessary to keep the suspect in custody for the protection of the suspect or where the suspect is a minor, for the welfare of the suspect;

(c) the suspect is serving a custodial sentence; or

(d) the suspect, having been arrested in relation to the commission of an offence under this Act, has breached a condition for his release.”

The Applicant contends that such an action is unconstitutional under Article 49(1)(g) which provides that:

49. (1) An accused person has the right –

(g) at the first court appearance, to be charged or informed of the reasons for the detention continuing, or to be released:

The above provision sets out three scenarios that play out on first presentation of a suspect before a court. That is to say,

1. He may be charged,

2. He may be informed of the reason for request of his continued detention, or

3. He may be released altogether.

Subsection (4) of POTA is couched in such a way that it conforms and gives effect to Article 49(1)(g). I thus disagree with the Applicant’s submission that the failure to charge him at his first appearance in court contravened his right under Article 49(1)(g).The Applicant also misapprehended the import of the decision arrived at in the case of Michael Rotich(Supra).The circumstances in that case were considerably different and are distinguishable from the instant case. The judge in part delivered himself as follows;

“…, contrary to Article 49(g) of the Constitution, the Applicant was neither charged nor informed of the reason for his continued detention.”

What that implies is that when the Applicant was presented before the magistrate he was not made aware of the offences the police were investigating. The court accordingly observed that it was unconstitutional as it derived the Applicant of his right to be informed of the reasons for his detention pursuant to Article 49(1) (g). The judge also noted that such an action by the police was tantamount to denying an arrested person his right to liberty which in effect eroded the gains made by our progressive Constitution as enshrined in the Bill of Rights.

In the present case, oral submissions were made before the trial court in the Applicant’s presence and reasons set out why the Respondent wanted the detention period of the Applicant extended. My understanding of both Article 49(1)(g) as well as Section 33(3) of POTA is that the application for continued detention should be made in the presence of the Respondent ( suspect/accused). Section 33(3) further stipulates that the Respondent ought to be served with the application well before it is made. In the present case, there is no evidence that the latter requirement was complied with. However, the Respondent was asked by the court if he had any objection to the application being made to which he responded he had none. Therefore, it is safe to conclude that he understood the application itself; specifically the reasons advanced by the prosecution for his continued detention. I also hold that Article 49(1)(g) allows the detention of an arrested person without trial as long as, first, he is informed of the reason for the continued detention and second, the continued detention is made with the leave of the court. Accordingly, there was nothing unconstitutional or illegal in the order made for the detention of the Applicant without charge.

Having made the above observations, the onerous duty of this court is to satisfy itself as to whether the requirements of Section of Section 33(5) of POTA were satisfied before the learned magistrate allowed the application for the continued detention of the Respondent.

Was section 33(5) of the POTA complied with?

I have already set out the provisions of Section 33(5) of POTA. For purposes of clarity, for a court to make a detention order under the provision it must be satisfied that;

1. There are compelling reasons for believing the suspect will either not appear for trial, will interfere with witnesses, will interfere with investigations or will commit another offence.

2. It is necessary to detain the suspect for his own protection.

3. The suspect is serving a custodial sentence.

4. The suspect has breached a condition of his release after being charged of committing an offence under the act.

This being a revision application, the court must satisfy itself that the threshold set out under Section 362 of the Criminal Procedure Code is met. The same provides thus;

“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”

Further, under Article 165 (6) and (7) of the Constitution;

(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

The Constitution does therefore crystalize the purpose of the revisionary jurisdiction of the High Court over the subordinate courts. Section 362 of the Criminal Procedure Code is clear that the duty of the High Court in a revision is restricted to re-examining the record of the subordinate court. Therefore, at this point the High Court cannot call for, or purport to admit, fresh evidence in satisfying the provision unless for extremely good reason it is otherwise persuaded. Effectively, this court would only re-look at whether the Respondent satisfactorily argued sufficient reasons warranting the continued detention of the Applicant.

The application in the lower court seems to be premised on the fact that the Applicant was a flight risk and that he posed a “great risk to the National security and security of the entire peace loving human race in the world”. Thus, the application falls under the first limb of Sub-section (5) which requires the party making the application to set out compelling reasons why it believes so.

The reasons for the Respondent’s belief that the Applicant was a great risk were set out in the affidavit sworn by No. 86401 PC Geofrey Busolo, one of the investigating officers and was annexed to the said application. The affidavit conformed to Section 33(1)(2) of POTA which provides that the police officer shall specify:

1. The nature of the offences for which the suspect was arrested;

2. The general nature of the evidence on which the suspect has been arrested;

3. The inquiries that have been made by the police in relation to the offence and any further inquiries proposed to be made by the police; and

4. The reasons necessitating the continued holding of the suspect in custody.

Under paragraph 11 of the said affidavit, the Applicant was being investigated for the following offences;

a) Radicalization contrary to Section 12D of the Prevention of Terrorism Act (as amended) which attracts a sentence of a term not exceeding thirty (30) years;

b) Membership of a terrorist group contrary to Section 24 of the Prevention of Terrorism Act, 2012 which attracts a sentence of a term not exceeding thirty (30) years;

c) Soliciting for the commission of a terrorist act contrary to Section 9(1) Prevention of Terrorism Act, 2012 which attracts a sentence of a term not exceeding twenty (20) years;

d) Promoting terrorist act contrary to Section 9(A) of the Prevention of Terrorism Act, 2012 which attracts a sentence of a term not exceeding twenty (20) years.

All these are offences provided under POTA. This drives me into the next question;

Did the Respondent satisfy the magistrate that the Applicant was a suspect of any of the specified offences?

The evidence as per the said affidavit was that the Applicant was an active social media user and was relying on that medium to commit the offences in question. It sets out his Facebook posts from 28th June, 2017 and 5th July, 2017 as indicative of his actions. Only the posts of 28th June, 2017 were exhibited in this application. I duplicate them as under;

1. It was made at 3. 56 pm and states:

“Death is calling me yani kifo ina ni ita am not afraid of yu grim ripper I know am a mortal. R.I.P WAISS ABDULAZIZ, lets see if I get through Sunday.”

2. At 4. 20 pm“So if I die before Sunday all of you bitchez will like enyewe alisema atakufa before Sunday

3. At 5. 19 pm“I predict all die on Sunday evening

4. At 5. 25 pm”Hata Saitoti alikuwa mwizi mkubwa sana ana alikufa kama umbwa

5. At 11. 20 pm“Huyu Mike ni nani? Where do I know you 4rm.

6. At 10. 39 pm “If you wount recognize the Palestine state, I will denie that the lollacaust ever happened, and there was never an aushwitz concentration camp#freegazza#electronicintifada.”

7. At 10. 23 pm“Ap hawana tabia. how dare they assault striking health workers, whereas industrial picketing is protected by law. Ap ni ap tu nawajua mulikataa masomo, if yu don’t change, then change will change you machokoraa nyini pamoja na huyo admin wenyu wa Digital Kenyan Corps-COPS ama ni vile hamkupata unknown, na wewe admin keep of muslim agenda.

8. At 9. 34 pm “…all of you with your birthday wishes did I ask you to wish me shit….(unprintable word)nyinyi as far as am concerned am a clone, I was never born and al die on Sunday.”

A scrutiny of the posts does clearly show that they do not constitute evidence pointing to the Applicant committing the offences set out in the said affidavit. I will not discuss the propriety of most of the posts in question as they are in vulgar language. However, it is clear that they did not constitute elements that disclosed any of the alleged offences. They are posts indicative of a person who is in conflict with either persons known to him or colleagues. They discuss issues of a personal nature, a struggle with some personal issues and extend to discussing political matters. In one of the posts, a friend of the Applicant is querying his mental stability wondering whether he is struggling with a personal issue to which he can respond. As deponed in the affidavit of one Agnes Muthoni Wanjiku, the Applicant’s wife, the posts point to nothing more than a man wrestling with a mental disturbance.

The other aspect is that enquiries are being made by the police in relation to the offence and any further inquiries proposed to be made by the police. The court was referred to Paragraph 6,7 and 8 of the Affidavit of PC Busolo. The gist of the content in the affidavit is that the Applicant is collaborating with other security agencies within the country, that the Applicant is an active social media user (especially face book) and on several occasions has posted messages in support of terrorism activities in the country and the world on his face book page and that the messages posted and disseminated by the Respondent are meant to encourage and radicalize other persons to commit acts of terrorism. At paragraph 9, the dates of the posts are specified. I have already duplicated the posts for 28th June, 2017. However, the post for 5th July, 2017 is not part of the annexure to the instant application. Likewise, the affidavit in reply to the present application also sworn by PC Busolo does not annex any posts from the Applicant’s instagram, twitter or Gmail accounts. As such, I conclude that the court is not persuaded that there are inquiries made on the Applicant’s involvement in terrorism that would warrant his further detention. If the inquiries do exist, police can request for time to complete them after the plea.

Finally, is the question as to whether there are any reasons necessitating the continued holding of the Applicant in custody. Learned Counsel Mr. Ondimu for the Respondent emphasized that should the Applicant be released before the investigations are complete, he was likely to commit terrorist acts which include but are not limited to the physical attacks or radicalizing other persons. He urged the court to note that the Applicant was a police officer who was well versed with security matters and use of fire arms. That since he was based at the Police Headquarters, he was well placed and positioned at an advantage point to either kill his fellow officers or attack the building itself. Reference was made to a well-known incident at Kapenguria Police Station where a police officer attacked fellow police officers. Mr Ondimu added that propagating terrorist ideologies on social media was an extremely dangerous thing. I reiterate my earlier submissions that if the face book posts are anything to go by, it is difficult to make a conclusion that they constitute the offences specified under Paragraph 11 of the said Affidavit. Even if they do, additional evidence must be tendered to support them. The other issue advanced on the dangers of use of social media to propagate terrorism was vindicated by an article titled ‘Reasons why ISIS is more dangerous than AL QAEDA’ by Goaka Briefing. Whereas I agree on the content of the article, the same does not constitute evidence as it is based on a personal opinion and approach of an issue. The issues discussed in such an article can only be admissible if they are transformed into evidence capable of admission in a court of law. The contrary is the position and for the reasons I have aforestated, the face book posts attached to this application fall far short in satisfying Section 33 (2)(a)-(d) of POTA.

I have agonized with the issues advanced by the respective counsel. I am alive to the fact that terrorism has become a security danger to this country. The court cannot shut itself from this danger or work in isolation from other security agencies. It must be seen to support the security mechanisms put in place to secure our country. That is why if suspects are brought to court and concrete evidence is advanced to support a request for their continued detention, courts will not hesitate to act accordingly. However, I must emphasize that courts must resist to be used as conduits to trample on suspects’ constitutional right to their fundamental freedoms. That is why the Bill of Rights as enshrined in our Constitution safeguards the right to liberty of its citizens. Courts must jealously guard them. One of the cases in which the example must be set is the instant one. In as much as the Applicant was informed of the reasons for his continued detention, the evidence disclosed and the purported enquires being made on the investigations do not warrant a detention for thirty (30) days. Any further continued detention of the Applicant would gravely breach his fundamental right to freedom and liberty as provided under Article 29(a) of the Constitution. And as Hon. Kimaru J. observed in Michael Rotich vs Republic case (Supra), a detention of a suspect without a charge erodes the gains made in the advancement of human rights and fundamental freedoms as provided in the Bill of Rights in our progressive Constitution.

It is also important that I distinguish the instant case from the authorities cited by counsel for the Respondent. In the case of Mohamed Abdi Ali and Another vs Republic (supra), the court upheld the fact that the prosecution had demonstrated that there existed sufficient evidence that the Applicants were connected to cyber space terrorist acts and that if they were released on bail they were not only likely to interfere with investigations but also continue committing similar offences. Furthermore, the Applicants were already facing terrorism charges and the issue for determination before the judge was whether they should be granted bail pending the trail. The court found there existed compelling reasons to warrant a denial of bail pursuant to Article 49(1)(h) of the Constitution. In the present case, the Applicant has not been charged. And the question before this court is whether there are compelling reasons to warrant the detention of the Applicant before a charge. I have already at length addressed myself why I am convinced that the evidence exhibited does not meet the threshold envisaged under Section 32(2) of POTA.

In Neeru Yadav vs State of U.P and another (supra), the court addressed itself on circumstances when the liberty of an individual is not absolute. This is applicable not only in our jurisdiction but world over. In our legal system, Article 49(1)(h) of the Constitution comes into play. The same conforms to Article 24 of our Constitution which provides that the rights of an individual are not absolute and can be limited by law. Further, Article 49(1)(g) confers on a court the powers to detain an arrested person without a charge. Section 33 of POTA is one piece of law that gives effect to Article 49(1)(h) and (g) of the Constitution. I reiterate that the instant case is not one of those cases that would warrant a court to curtail the liberty of the Applicant without a charge. If indeed the police are convinced that the Applicant has committed any offence under POTA he should be forthwith brought to court on a holding charge. Any extended investigations can be done with the request of the trial court.

In sum, I find that this application is merited. The learned trial magistrate misdirected herself in finding that there were sufficient grounds on which the Applicant should have been remanded for thirty (30) days. In any case, the period the Applicant has been in remand this far which is eighteen days suffices that investigations ought to be complete. I accordingly set aside the order dated 3rd July, 2017 ordering the detention of the Applicant for thirty (30) days. I substitute it with an order that the Respondent has had sufficient time to conduct investigations. The Applicant should be forthwith presented before a magistrate’s court by 4. 00 p.m. today to take plea. No orders as to costs.

Dated and Delivered at Nairobi this 21st July, 2017.

G.W. NGENYE-MACHARIA

JUDGE

In the presence of;

1. Mr Oduor h/b for Mr. Onyango for the Applicant.

2. Mr. Ondimu for the Respondent.