Evidence that liberty and the rule of law still exist! Too bad it’s in Kenya, not America.

Summary:  Fear rules our hearts, allowing our government to slowly strip away our rights.  We revere the Founders but as cowards find their words incomprehensible.  Perhaps we can find inspiration from recent deeds, such as this ruling from a Judge who still values liberty and the rule of law.  Too bad he’s not an American.

Introduction by Glenn Greenwald, Salon, 2 October 2010:

Kenya faces a massive threat from terrorism.  Radicals bombed the U.S. embassy in Nairobi in 1998, attacked an Israeli-owned tourist resort and Israeli airliner in Mombasa in 2002, and has repeatedly been under terrorist threats for the last decade.  Nonetheless, consider this court decision that was just issued in Nairobi on Thursday.  A Kenyan Muslim, Mohamed Sulemein, was detained in August — without any charges or due process — by Kenyan anti-terrorism agents (the ATPU), accused of having participated in the horrific June World Cup bombings in Kampala, Uganda, which killed 73 innocent people.  He had his passport seized and was told he would be sent to Uganda without any opportunity to contest the accusations against him.  His wife filed a habeas corpus petition in a Kenyan court, demanding that “he be treated in accordance with the laws and Constitution of Kenya,” which, among other things, guarantees the right to be charged with a crime within 24 hours of arrest and not to be shipped outside the country without a hearing. 

Ruling by Judge A. O. Mucelule (source):

Since the terrorist attacks during 9/11, the USA Embassy attacks in Nairobi and Dar es salaam on 7/8/1998 and the Kikambala attack on 28/11/2002, all of which were blamed on AL QAEDA elements, terrorism has been both a challenge and a nightmare to law enforcement agencies in Kenya and the entire World.  Terrorism is a complex and ever-changing phenomenon that has left vicious consequences both to lives and to property.  Many countries, Kenya included, do no want to try terrorism suspects for fear of attacks.  This is the environment that the ATPU may have found themselves in when, following the Kampala bombings, they arrested the subject.  They quickly, within a few hours of arrest, handed him over to Uganda.

Inspector Ogeto’s affidavit is silent on the nature of evidence the police held regarding the subject’s connection in the bombings to be able to hand him over. …

  • There was certainly no opportunity afforded for him to apply to the Kenyan Courts for release, for instance. 
  • There was no formal communication with his family or information that he was being taken out of jurisdiction.  He is a Kenyan citizen who had immunity against expulsion.
  • There was no formal request by the Ugandan authorities for him. 
  • There was no warrant issued by a court in Uganda seeking him arrest. 
  • All extradition provisions were disobeyed in his connection. 
  • In short, all the evidence indicates he was illegally arrested, detained, and removed from Kenya.

Whether one is a terror suspect or an ordinary suspect, he is not exempted from ordinary protection of the law.  Whatever the security considerations that the Police had in this case, the recognition and preservation of the liberties of this subject was the only way to reinforce this country’s commitment to the rule of law and human rights.  Police must have the capacity to battle terrorism and enforce human rights at the same time as the two are not, and should not, be incompatible.

Mr. Mureithi referred the court to the se in Njuguna S/O Kimani and Others in which the ten Court of Appeal for Easter Africa stated:

“It is a matter of great concern if criminals go unpunished; it is a matter of equally great concern that the courts should administer justice according to law.  the implications of this case are indeed grave, suggesting as they do, the danger that the Police Force in Kenya is tending to become a law into itself.  The court will fail in their duty if they ignore or pretend not to see the danger when it is apparent on the evidence before them.”

That was said in 1954 in a case in which the appellants had been convicted for being “Mau Mau” terrorists who had brutally murdered a European and his wife, both living on an estate at which they had been arrested, and detailed without charge for nearly three months during which confessions had been extracted from them.  Their convictions were quashed.  During the State of Emergency era the court found the conduct of the Police unacceptable.

I find no exceptional circumstances, whether state of war or terrorist actions, can be invoked to justify the treatment handed down to the subject herein by the Respondents.  I find that the return made by Inspector Ogeto was not sufficient and that the arrest, detention and removal of the subject from Kenya to Uganda were illegal and transgressed his fundamental rights and liberties.  these rights and liberties cannot be given up for expedience’s sake.

A note from the Founders

“They who would give up essential liberty to purchase a little temporary safety deserve neither liberty or safety.”
— From the title page of An Historical review of the Constitution and Government of Pennsylvania (1759); written by Richard Jackson and published by Benjamin Franklin

For more about the dying American Republic

  1. Forecast: Death of the American Constitution, 4 July 2006
  2. The Constitution: wonderful, if we can keep it, 15 February 2008
  3. See the last glimmers of the Constitution’s life…, 27 June 2008
  4. Remembering what we have lost… thoughts while looking at the embers of the Constitution, 29 June 2008
  5. A report card for the Republic: are we still capable of self-government?, 3 July 2008
  6. Another step away from our Constitutional system, with applause, 19 September 2008
  7. What comes after the Constitution? Can we see the outlines of the “Mark 3″ version?, 10 November 2008
  8. Are Americans still willing to bear the burden of self-government?, 27 March 2009
  9. Another nail put in the Constitution’s coffin, but we don’t care, 9 February 2010
  10. Another step towards fascism: “Silencing the Lawyers”, 31 May 2010
  11. The Feds decide who to lock up for life (not just at Guantanamo), another nail in the Constitution’s coffin, 2 June 2010
  12. The President’s big stick (domestic): his National Emergency Powers, 12 June 2010
  13. Code red! The Constitution is burning., 5 August 2010
  14. An Appalling Threat to Civil Liberties and Democracy, 8 August 2010
  15. Every day the Constitution dies a little more, 1 September 2010 — About US government assassination programs
  16. What do our Constitution-loving conservatives say about our government’s assassination programs?, 2 September 2010
  17. Cutting down the tree of liberty, 9 September 2010 — Government secrets trump fair trials.
  18. The guilty ones responsible for the loss of our liberties, 11 September 2010

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