Their arrest was characterised by the kind of drama witnessed in Hollywood movies.
Ummulkheir Sadri, Maryam Said and Khadija Abubakar were arrested on March 2015 in Elwak, Mandera county, an area bordering Somali.
During their arrest, the police claimed they had received intelligence reports that the three girls were on their way to joining Somalia-based terror group al Shabaab.
Police claimed the three women were allegedly recruited by another accused person, Halima Adan, who was later arrested on the Mombasa-Nairobi highway.
They were detained for several days before they were charged with several counts, including being members of al Shabaab.
After two years of incarceration, senior principal magistrate Henry Nyakweba released them on bail.
The case dragged on for two more years and several months, with theatrics along the way.
On October 10, chief magistrate Evans Makori acquitted the girls on what he termed lack of sufficient evidence to warrant a conviction.
BURDEN OF PROOF
Speaking to the Star, the
Mombasa Law Courts head of station
said the burden to prove charges that the accused belong to a terror group has always been hard, as the terror group's members do not have identification cards or have their membership christened on their foreheads.
“The investigators in this matter ought to have used the intelligence report to get good evidence linking the accused to the terror group, since such reports cannot be produced in court,” Makori said.
Makori, one of the few well-trained magistrates in handling terror cases, said the acquittal of terror matters does not only affect Mombasa but also all stations that handle such cases.
He said the reasons for acquittals are always the same, as terror matters are a complex web and expensive to handle not only to Kenya but the entire world.
“We need to amend the anti-terror Acts and effect some laws that have remained on papers. We need reforms on the investigators, prosecutors, Judiciary and the procedures in order to have successful cases in future,”
he said.
Makori said terror cases are not ordinary matters to be subjected to the same criminal process as other cases, such as chicken thief.
He said the legal safeguards of criminal cases might be the same but a process on how to handle terror matters need to be different.
In the procedural aspect of terror matters, the chief magistrate recommends such cases be handled by well-trained and experienced magistrates only.
Currently, the subordinate courts have jurisdiction to try the offences committed under the Prevention of Terrorism Act, 2012.
This means any magistrate of whatever class can handle the cases.
Makori said these cases should be handled the same way corruption matters are handled.
The Hague Memorandum on good practices for the Judiciary in adjudicating terrorism offences encourages states to consider the use of specialised trained judges and magistrates.
Such judges should be assigned to the case as from the beginning of the trials, and will be responsible for the entire process until its conclusion.
The judge or magistrate will be mandated with ensuring efficiency and consistency of the trial process.
The Judiciary Training Institute is already striving to achieve this goal of ensuring cases are allocated to specialised divisions of the courts.
In 2012, the Judicial Services Commission recommended the activation of International Crimes Act, which will deal with crime committed internationally or crimes that involve investigations in other countries.
EVIDENCE GATHERING
Makori further pointed out the need to have world-class trained investigators who are highly knowledgeable on how to gather and piece together evidence before adducing it in court.
“These cases are delicate and have even drained Kenya’s resources, but they end up being dismissed due to loopholes in the evidence presented before court,”
he said.
The chief magistrate called for preservation of the scenes of crimes and guidelines on who should access the scene whenever there is an attack.
He said the presence of everyone at the scene results in compromising of evidence gathered and contamination of exhibits.
“The officers often fail to preserve the evidence for forensic analysis, which ends up with contaminated results,”
Makori said.
He also discouraged the charging of suspects in “instalments”, where suspects are charged with new counts whenever new evidence comes up.
In the case of the three girls, 20 new charges were preferred a year after they had been charged.
Investigators cited new evidence recovered due to cyber analysis on phones and a laptop that were recovered from the accused persons.
The chief magistrate said the prosecution needs to sift evidence before making a decision on whether to prefer charges or not to, and even whether to enter a plea bargain or not.
Makori further wants the Security Law Amendments of 2014 —
which addressed the criminalisation of travelling to designated terrorists zones, incitement to commit terror and preparatory offences —
to be implemented.