The ghosts of a rushed investigation and bungled prosecution, which crippled Kenya’s chance of putting behind bars for good one of its most-wanted terror suspects, have come back to haunt the state after a Sh10 million bounty was placed for the capture of Elgiva Bwire.
“Elgiva vowed to carry out retaliatory attacks in the country against civilians and security personnel. He has gone underground and is believed to be planning to carry out attacks,” said the DCI.
Prof Nandwa, who is believed to have been abducted by security agents 11 days ago, moments after his client went missing in Nairobi, was released at 1am on Monday in the bush in Mwingi, Kitui County.
Inspector General of Police Hillary Mutyambai and Attorney General Kihara Kariuki are expected to appear at the Constitutional Court tomorrow to explain where Prof Nandwa was, and where his client is.
“I hereby order that the Attorney General and the Inspector General of Police appear in person in open court on November 11, 2021,” Justice Anthony Mrima ordered on Monday in a case where the Law Society of Kenya had sued them over the disappearance of Prof Nandwa and his client.
Prof Nandwa, a Sudan-educated scholar of Shariah law has, in his published scholarly articles, criticised Kenya’s war on terror, saying it is framed by the state to unfairly target individuals along religious lines by emulating how the United States of America fights terrorism.
“However, before making a decision to emulate these experiences, it is worth asking ourselves whether they have been successful or failed?” asked Prof Nandwa in the paper ‘The impact of criminalizing radicalization on the freedom of thought, conscience and religion in Kenya.
“Many questions unanswered, such as who shoulders the duty to define what is radical, radicalism and radicalisation? Where do we draw the line between freedom of thought, conscience and the prohibited radicalisation?” he asked.
Mr Bwire is a self-confessed terrorist who pleaded guilty to masterminding two terror attacks; one at the Gikomba market and another at the once popular Mwaura’s bar in downtown Nairobi.
The last time Mr Bwire was seen in public was on October 27, 2011 as he smiled and posed for the cameras after Senior Principal Magistrate Grace Macharia sentenced him to life in what could be the fastest trial of a terrorism suspect in Kenya’s history. It took less than 72 hours from his arrest to sentencing.
“I am just happy. A sad man is a remorseful man,” Bwire, who was then 28, told the press before being whisked away to start his sentence.
The hurried investigation and trial, which sent Mr Bwire to prison has now come back to haunt the state, as it emerges that crucial elements of the investigation and prosecution were missed in the rush to put Kenya’s most prized suspect at that time in prison.
The state, which had charged Mr Bwire with, among other counts, causing grievous harm to Mr Patrick Ndolo Kanyingi and Mr Justus Makau Mulwa in a grenade attack on Racecourse road in Nairobi, did not produce P3 forms in court to show the injuries they sustained.
Under the Evidence Act, an allegation must be proved by evidence, otherwise it is proven inadmissible. In the case of injuries sustained during an assault or attack, the prosecution must provide a P3 form, which acts as medical evidence to assist the court to make a decision on the nature of injury.
“The investigating officer was unable to obtain P3 forms to confirm the extent of their injuries. But the officer observed that the first complainant had suffered fractures of the knee cap, rib, ruptured pelvis, and soft tissue injury to the head; that the second complainant suffered abdomen injury and broken arm,” argued the prosecution when Mr Bwire appealed.
“The degree of injury of the complainants could only be classified by a medical practitioner after physically examining the victims, the court retaining the discretion to form its own independent opinion; and that a police officer cannot purport to assess the extent of injury,” responded Prof Nandwa on behalf of Mr Bwire.
With that, Mr Bwire, who, despite pleading guilty on all nine counts of terrorism and handling of weapons, successfully appealed his life imprisonment that was reduced to 10 years, is out of prison and has seemingly vanished, if the state is to be believed.
Additionally, he is protected by the Constitution and cannot be charged for the same offence due to the double jeopardy rule.
“Every accused person has the right to a fair trial, which includes the right not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted,” says Section 50 (2)(a) of the constitution.
