Nairobi — Terrorism action cannot be invoked to justify rendition of Kenyan suspects to Uganda, a judge has ruled.
And Mr Justice Aggrey Muchelule further declared the arrest, detention and removal of Mr Mohammed Hamid Suleiman from Kenya to Uganda to face charges relating to the Kampala bombings illegal.
".....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."
The judge stated: "I find that no exceptional circumstances, whether State of war or terrorism actions, can be invoked to justify the treatment handed down to the subject herein by the respondents (Police Commissioner and Anti-Terrorism Police Unit boss)."
The ruling comes hot on heels of another decision by Mr Justice Mohammed Warsame, in which the court reprimanded the Head of State for allowing the police to rendition Kenyans to another country without following proper procedure in law.
Thursday's ruling arose out of an application made by Mr Suleiman's wife seeking his production in court after he was arrested by officers from the Anti-Terrorism Police Unit.
The woman told the court that her husband was arrested on August 13 from their home in Akiba Estate, Nairobi.
The man, who is said to be a businessman specialising in arranging trips to Mecca for Muslim pilgrims, was handed over to Ugandan authorities the following day, the court heard.
The State wanted the case dismissed because it had been overtaken by events given that the man in question was no longer within its jurisdiction.
In his ruling, the judge noted that since the 1998 and 2002 bombings in Kenya, terrorism has been a challenge and nightmare to law enforcement agencies.
"Many countries, Kenya included, do not want to try terrorism suspects for fear of attacks.
This is the environment the ATPU may have found itself in when, following Kampala bombings, they arrested the subjects." The judge also held that Mr Suleiman was a Kenyan citizen who had immunity against expulsion and there was no formal request by Ugandan authorities for him.
And as a result, he said, all extradition procedures were disobeyed in the case.
Mr Justice Muchelule further said whether one was a terror suspect or an ordinary suspect he or she was not exempted from the ordinary protection of the law.
Meanwhile, a different court extended temporary order stopping the arrest and rendition of Mr Mohamed Aktar Kana.