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October 08, 2013

Experts Fear No Prosecutions in Kenya Mall Attack

by Mohammed Yusuf

Kenyan security forces have made dozens of arrests and intensified their search for more suspects who they believe were behind the Westgate mall terror attack on September 21. This week the government offered a bounty of up to $6,000 for information leading to the arrest of two men alleged to own a vehicle used during the attack. Legal experts fear no suspect will be convicted.

In a brief statement to the media Monday, Boniface Mwaniki, head of the police Anti-Terrorism Unit, said his unit will offer a reward to anyone who comes forward and gives information on the owner of a car which was used to transport terrorists, weapons and explosives to the Westgate Mall in Nairobi.  

During the attack at the mall, more than 60 civilians were killed, along with six soldiers and at least five gunmen.

Legal experts in Kenya expect the courts to be busy in the coming days and even months, but doubt that any suspect will be prosecuted and jailed.

Donald Rabala, an advocate at the High Court of Kenya, told VOA it will be hard for police to link suspects to the Westgate attack, since none of those arrested were actually apprehended at the mall.

“If you didn’t find these people at the scene, how then do you link them to this activity that happened at the Westgate?" he asked.  "Then that is where you come up with a trail of evidence in terms of mobile communication, e-mail communication, you can even trail money movement from one place to another.  Our police forces are not able to get this kind of links more often than not, so you end up with a weak case and a magistrate has no choice but to release these people.

Lawyers acknowledge that getting evidence needed to prove terrorism links and prosecuting it is difficult.

Dozens of arrests made in the last few weeks include people from Western countries.

Multiple sources in the security force said the investigators pick names from the immigration department and check the date that a suspect arrived.  In some cases, police look for individuals whose entry visas have expired, but most of these people have crossed to Somalia. If these individuals come back, security forces are left to deal with an immigration case instead of a terror-related case.

However, Rabala said police are partly to blame for not giving enough information to prove the suspect they are sending to court may be a terrorist.

“The first person to blame is the police," he said.  "Take, for example, myself.  If am sitting there and am looking at a case and someone presents me a suspect, you tell me this is a terrorist and you don’t give me evidence linking him to the activity that is complained of.  Obviously the constitution and the laws of the country enjoin me to release the person because there is no evidence that connects him to the event.”

Neither Police Inspector General David Kimaiyo nor other representatives of the police returned calls for comment.

Al Amin Kimathi, the head of the Muslim Human Rights Forum, said investigating terror cases is a difficult task but security forces need to be patient and very careful.

"They are frustrated at times with the law and the legal procedures at times, there is no two ways about this," he admitted. " Even where anti-terrorism has predated, counter-terrorism authorities, anti-terrorism authorities mark their patience to ensure that innocent persons are not brought to the net and are not victimized.”

So far only two convicted terrorists: Bwire Oliacha and Abdulmajid Yasin Mohamed - are serving jail terms in Kenya in connection to terror attacks since Kenyan troops crossed to Somalia to fight al-Shabab.

High Court advocate Donald Rabala said with more cases flopping due to lack of proper investigations and evidence, magistrates - instead of releasing suspects - should press the police to bring more evidence to prosecute the suspects.