Moments after Chief Magistrate Francis Andayi convicted two individuals for their role in the 2013 Westgate Mall terror attack, prosecutors felt that the acquitted Liban Abdulle Omar was the one that got away.
Mr Andayi delivered his judgment minutes after 8am on October 7, 2020 based on circumstantial evidence largely based on call records submitted to the court by prosecutors and obtained from investigators from the Anti-Terrorism Police Unit (ATPU).
In cases involving covert law violations such as terrorism, courts often allow the use of circumstantial evidence. More so when parties show that direct evidence is unlikely to be uncovered.
Kenyan security personnel evacuate shoppers from Nakumatt Supermarket at Westgate Mall in Nairobi during the terrorists attack of September 21, 2013.
Photo credit: File | Nation Media Group
Mohamed Ahmed Abdi and Hussein Hassan Mustafa were found guilty of helping plot and execute the September 21, 2013 attack, which claimed the lives of at least 67 people of different nationalities.
Omar, a Somali refugee and a brother to one of the four gunmen who executed the terror attack, was acquitted.
Prosecutors had alleged that Omar used a Nokia 305 mobile phone to contact his brother Ahmed Hassan Abukar and two other gunmen – Mohamed Abdinur Said and Hassan Mohamed Dhuhullow. The phone belonged to Mr Abukar.
Mr Andayi ruled that the communication cited between the Nokia phone and other handsets could have been made by Mr Abukar, hence his decision to acquit Mr Omar.
To Omar and his family, he had been vindicated and would no longer be referred to as the second accused, a tag he had carried for the seven years of trial. But then Director of Public Prosecutions Noordin Haji challenged the decision at the High Court.
But the fate of the appeal is in limbo as nobody has laid eyes on Omar since October 8, 2020, just over 24 hours after his acquittal. On Friday, Omar’s lawyer Mbugua Mureithi confirmed that nobody has seen or heard from Mr Omar since his abduction by hooded men who identified themselves as State security officers.
On that day, officers at Kamiti Maximum Prison, which Omar had called home for the better part of the decade, let the acquitted man out. Within the hour, Omar had arrived at the ATPU headquarters in Upper Hill, Nairobi. Anyone that catches the ATPU’s attention, including those acquitted of terror charges, are required to seek clearance from the unit before returning to normal life.
A screen grab released on October 5, 2013 and taken from closed circuit television shows the gunmen who raided the Westgate Mall in Nairobi on September 21, 2013.
Photo credit: File
Omar’s sister Sahra, an aunt and two other relatives accompanied him to Upper Hill. At the ATPU headquarters, he filled out paperwork as officers completed his clearance. The process lasted two-and-a-half hours. After obtaining clearance, Omar and his family hailed a taxi and set off for Eastleigh where he was to live with his sister.
The taxi driver planned to go past Don Bosco church, down Bunyala road into the city centre before crossing into Eastleigh. Approximately 1.8 kilometres from the ATPU headquarters and just near KCB towers, a black Subaru station wagon sped past them before blocking the taxi.
At least five hooded men, each armed with an AK-47 assault rifle, jumped out of the Subaru and identified themselves as security officers. In under 10 minutes they identified Omar, pulled him out of the taxi and bundled him into their car before speeding off.
“We asked them who they were and they said they were security officers who were just doing their job. They went straight for Omar and threw him into the boot of the black Subaru. They drove off with our taxi driver’s keys and left us stranded,” Omar’s sister Sahra told the Nation at the time.
An elite unit of Kenyan security personnel disembark from a vehicle during the sentencing of Westgate terrorists in Nairobi.
Photo credit: File | Nation Media Group
For Mr Mureithi, it was a case of déjà vu. Barely four months after the Westgate attack, an explosive device went off inside a Java restaurant near an international departure terminal at the Jomo Kenyatta International Airport. Four men were implicated in the January 16, 2014 incident that was labelled a terror attack.
Hassan Abdi Mohammed, Mohammed Osman Ali, Yusuf Warsame and Garad Hassan Fer were hit with terrorism-related charges on February 4, 2014 and Mr Mureithi represented them.
On January 22, 2018, all four men were acquitted. Their script is the same as Omar’s, save for having an additional chapter.
After leaving Kamiti Maximum prison, they went to the ATPU headquarters for clearance. Shortly after leaving the offices, they were abducted by masked gunmen. The four men only made contact with their Kenya-based relatives and legal representatives several months later, claiming to have been abducted and dumped in Somalia.
“They only resurfaced eight months later and called from Somalia saying they had been abducted. We don’t know what will happen next (with Omar) but he may be deported in similar fashion,” Mr Mureithi said after Omar’s disappearance.
At least 175 people were injured in the four-day Westgate attack which also claimed the lives of 62 civilians, five Kenyan soldiers and four gunmen. Al-Shabaab claimed responsibility for the act that saw security agencies in Kenya and abroad become determined to bring justice to anyone who planned or aided the gunmen.
Nearly two months later, Mr Abdi, Mr Mustafa, Mr Omar and an individual whose true identity remains a mystery but is identified in court papers as Adan Mohamed Ibrahim alias Adan Abdikadir and Ada Dheq were charged and a seven-year-long trial started.
This screen grab released on October 18, 2013 and taken from closed circuit television shows one of the gunmen during the attack at the Westgate mall in Nairobi on September 21, 2013.
Photo credit: File | AFP
The four were jointly charged with committing a terrorist act and conspiracy to commit a terrorist act. Additionally, Mr Abdi was individually charged with giving support to a terrorist organisation, being a member of a terrorist organisation and being in possession of terror-linked content.
Mr Omar was charged individually with giving support to a terrorist group and making a false statement in relation to the Nokia 305 mobile phone. The mystery man was charged individually with obtaining Kenyan registration by false pretence and being in Kenya illegally. Mr Mustafa was charged individually with giving support to a terrorist group.
On January 14, 2019 Mr Andayi found that the mystery man had no case to answer as no evidence had been presented against him.
The mystery man owns a school in Eastleigh and had employed Abdikadir Hared, one of the attackers, as a Madrassa teacher. Investigations had found that Mr Hared had purchased the car that ferried the four gunmen to Westgate Mall.
