Kenya: The rendition reflex

Human rights groups and critics say the absence of an effective law to bring terrorism suspects to book has forced Kenyan security agencies to resort to secret renditions to neighboring states.
 
Lawmakers' efforts to enact an anti-terrorism bill have been fruitless over the last six years, with MPs joining lobby groups to defeat the most recent proposal, which was declared unconstitutional in court.

The draft Suppression of Terrorism Bill, first put forward in 2003, was withdrawn by the government in 2004 following widespread criticism by Muslims, human rights groups and some MPs including lawyers who argued that the law encompassed a "vague and broad definition" of terrorism and terrorist acts. 

Opponents also criticized the wide-ranging powers it gave authorities to search and detain people in connection with terrorist activities. Attempts to introduce a revised bill were again thwarted in 2006.
 
The proposed anti-terrorism law gave police sweeping powers, including the authority to arrest and confiscate property belonging to people suspected of involvement in terrorism. It also suggested that anybody found with cash exceeding US$10,000 without any convincing reason could be forced to surrender the money on suspicion that the funds could be used to finance terrorism.
 
The law also gave express powers to the attorney-general and the police to pass on any information about a terrorism case to foreign intelligence agencies.

Politicians have also criticized the authorities for rushing the anti-terrorism legislation through at the behest of the US and other western capitals at the expense of national priorities.

"The bill is very good in addressing our national security, which includes protecting Kenyans against terrorism, but at the same time we don’t want to be seen as a tool for western powers …," Ababu Namwamba, Orange Democratic Party secretary, told ISN Security Watch.
 
While Kenya and Tanzania have been the target of attacks, concerns have been expressed about the extent to which Somalia, another neighbor, could serve as a base for international terrorists. But opposition politicians accuse the government of dragging its feet in tabling the bill in parliament for debate.

"There is lack of goodwill from the government, having withdrawn the bill twice before reaching the parliament. The government has never brought this bill up for debate in parliament. The need for a bill to address terrorism in this country and in the whole world is something that is long overdue," Dr Bony Khalwale, who heads a parliamentary committee and supported the passing of the proposed bill, told ISN Security Watch.
 
"I don't think by passing this bill, the country will be giving in to foreign pressure. Terrorism is not a preserve of Britain or America," he said.

Plans to re-introduce the legislation have been underway for several months, but the political will to proceed has been feeble.

Rendition under scrutiny

As a result of the lack of an effective law to handle terrorism, Nairobi is accused of sending suspects to countries whose governments are under no particular pressure to produce the suspects in court or free them.

Recent cases have highlighted the extent of this legal crisis.
 
Eight Kenyan nationals, arrested as they fled fighting in Somalia in December 2006 and held in various police stations before being secretly flown to Ethiopia, have returned home after a cat-and-mouse game between human rights groups and the government that lasted 18 months, according to the BBC.
 
Human rights groups accuse the Kenyan authorities of circumventing judicial proceedings and sending the suspects out of the court's jurisdiction in full disregard of the law. Lawyers filed more than 30 habeas petitions on behalf of the suspects. However, the authorities disregarded the court orders, moving the detainees to Somalia and later to Ethiopia.

The plight of the detainees was publicized on 2 October in a external pagereportcall_made by New York-based Human Rights Watch.
 
Kenyan authorities originally denied the existence of eight prisoners in detention facilities in Ethiopia and Somalia despite mounting evidence and international pressure for their release abroad.
 
Government spokesman Alfred Mutua told ISN Security Watch that the eight were repatriated to Kenya after a year in detention camps in Ethiopia, following extensive investigations and "screening" to prove that they were indeed Kenyan nationals.
 
"It is, however, necessary to understand the circumstances under which these individuals were arrested and taken to Ethiopia," he added.
 
Kenyan anti-terrorism police officers who made the arrests say the eight were deported to Somalia after being detained in Kiunga, near Kenya's southeast border with Somalia, because they denied being Kenyan nationals. The police said the suspects were Kenyans of Somali origin, held during the Somalia insurgency.
 
A ninth Kenyan arrested separately but held in the same prison in Ethiopia has not returned to Kenya. Police have not said whether the man had links to the al-Qaida network.
 
Sources told ISN Security Watch that in addition to confessing to being trained by Somali mujahideen, one suspect also stated that he was the driver for Abudul Mohammad Fazul, who is suspected of masterminding the 1998 US embassy attacks in Nairobi and Dar-Salaam.

The road to rendition

In December 2006, the Ethiopian government launched an offensive against the powerful Islamic Courts Union (ICU) alliance in Somalia, which had driven away the weak transitional federal government in parts of the country, resulting in a short period of relative calm and peace until Somali troops, backed by Ethiopian forces, retook control.
 
Further southward, Salim Awadh Salim, a telecommunication expert who claims he was visiting Somalia at around the same time to repair telephones, and his wife, were attempting to cross into Kenya from Somalia when they were arrested along with Fazul's family. Kenyan authorities contend that Awadh - one of the group of eight - had terrorist links and had received specialized training in Somalia.
 
Counterterrorism police sources claim Awadh was a senior member of the al-Qaida terror network and had been instructed to help Fazul's family to cross over to Kenya. According to reports, Awadh and his wife were sent to detention facilities in Somalia and then to Ethiopia.

Kenya's involvement in the secret rendition of nationals suspected of terrorism links have fueled speculation that the authorities are avoiding the law by using the rendition as a cover to allow foreign intelligence agencies to question the terrorism suspects illegally.
 
Government spokesman Mutua said Nairobi was still willing to pursue the suspects to court. In the meantime, their release from Ethiopian detention would remain temporary while the government keeps track of their activities.
 
"Since none of these individuals offers any plausible reason for taking part in terrorist training in Somalia or indeed for their links with international terrorists, the government will determine the appropriate action against them," Mutua told ISN Security Watch.