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War on Terror Has To Be Within The Law

Wednesday, February 16, 2011 - 00:00 -- BY PHEROZE NOWROJEE

The 17th Commonwealth Law Conference took place last week in Hyderabad, India. 16 Chief Justices from various jurisdictions were present. The Chief Justice of India gave the opening remarks. The Chief Justice of Pakistan gave the keynote address. The Prime Minister of India opened the conference. Several hundred other judges and counsel attended the high-level four day deliberations.

The Rule of Law, constitutionalism and torture were among the matters discussed. Another session dealt with the dangers to advocates and other human rights defenders in the front line. In considering this, the recent conduct of the Governments of Kenya and Uganda came up for discussion.

In July 2010, bombs exploded at two different sites in Kampala, Uganda. The police concluded that it was the work of individuals in Kenya. Uganda requested Kenya to arrest the suspected persons and send them over to Uganda. The Kenya Government complied.  

 The families engaged Mr. Mbogua Mureithi, Advocate, who flew to Kampala accompanied by the human rights defender, Mr. Al-Amin Kimathi of the Nairobi-based NGO Muslim Human Rights Forum (MHRF). On arrival at Entebbe Airport, Mr. Mureithi and Mr. Kimathi were both arrested and detained. No charges were preferred. Three days later, Mr. Mureithi was released without any charges having been lodged against him, and allowed to leave Uganda.

The arrest of an advocate on professional duties is not the action of a government that respects due process. Nor was it within the spirit of the Constitution of Uganda, or of constitutionalism and the principles of the Commonwealth.

Mr. Kimathi was then charged alongside the original suspects on terrorism charges and remanded in custody in Kampala, where he is being held in solitary confinement with a single hour of exercise a day.

The London-based human rights body, Reprieve, sent one of its senior workers, Clara Gutteridge, to attend the bail application. Upon arrival at Entebbe Airport Gutteridge herself was detained by the Ugandan authorities and deported. Gutteridge thus became the third human rights defender working on the case to be detained by the Ugandan Government.  

Meanwhile, actions had been brought in Kenya challenging the legality of the renditions by the Kenya Government. Mr. Justice Warsame held : “This application is a clear indication that the new security arms of this country have not tried to understand and appreciate the provisions of this new Bill of Rights. It also shows the yester years of impunity are still thriving in our executive arm of the government.” The Judge made orders ensuring that the Applicant was not to be handed over or transferred to Uganda or any other country without further orders from the Court.

This halted further illegal renditions.  The second case strengthened this. It came before Mr. Justice Muchelule, who held : “He is a Kenyan citizen who had immunity against expulsion. There was no formal request by the Ugandan authorities for him. There was no warrant issued by a court in Uganda seeking his arrest. All extradition provisions were disobeyed in his connection. In short, all the evidence indicates he was illegally arrested, detained and removed from Kenya. Whether one is a terror suspect or an ordinary suspect, he is not exempted from the ordinary protection of the law. I find that no exceptional circumstances whether state of war or terrorist actions, can be invoked to justify the treatment handed down to the subject.”

The judgments are of enormous value because the danger of rendition of ‘suspects’ from either Kenya or Uganda, to the UK or to Guantanamo Bay or to other states co-operating in torture has resurfaced. Recently, the Kenya National Commission for Human Rights and MHR Forum appeared before the Parliamentary Defence and Foreign Relations Committee in Nairobi. The media reported: “Human rights organizations claim Ugandan authorities are plotting to send eight Kenyans held in Kampala on terrorism charges to UK and Guantanamo Bay in Cuba.” (The Standard, 26 January 2011).

 Muchelule J. also held : “Police must have the capacity to battle terrorism and enforce human rights at the same time, as the two are not, and should not, be incompatible.” 

 This is also what the US President had stated in his Inaugural Address in January 2009. If this is an ‘enduring conviction’, (as President Obama defined it), if it is to be a reality for persons within Kenya and Uganda, then the danger must be publicly repudiated by the United States.    

Commonwealth lawyers at the Conference expressed concern over these actions of the two governments.


The writer is a lawyer






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