Court: Media to cover botched Diani terror case

Mr Nusab Abdulnasir Kassim (left), Mr Mistwah Abdulnasir Kassim and Ms Aisha Abdalla Musa before Mombasa court on January 11, 2023. The court declined to bar the media from covering proceedings in which the three are are being investigated for terrorism-related offenses. 

Photo credit: Wachira Mwangi I Nation Media Group

A Mombasa court on Wednesday declined to bar the media from covering proceedings in which three people are being investigated for terrorism-related offenses. 

Senior Resident Magistrate Rita Orora declined to block the media from the case, stating that a public trial is part of a fair hearing. 

The magistrate also argued that no reason had been presented to the court for the media's exclusion, and that in a free and democratic society, such a matter of public interest should be heard in open court. 

"At the end of the day, public opinion cannot sway the court's decision. The court will rule on facts and law, not on public opinion," the magistrate stated. 

Mr Musab Abdulnasir Kassim, Mistwah Abdulnasir Kassim, and Ms Aisha Abdalla Musa had asked the court to prevent the media from covering the case. 

Their lawyers, led by Yussuf Aboubakar, argued that since their arraignment in court, the media has been covering the case, and they are concerned that the public has formed an opinion against them. 

"Such information will be used against the suspects when they apply for bond," he said. 

He further argued that the most significant impediment is perception, and that the suspects’ rights must be protected. 

“The suspects are young and are avoiding having family members judge them," the lawyer explained. 

Mr Aboubakar also stated that no charges had been filed against the suspects. 

"The press has given the public the impression that Ms Musa is involved in a serious crime, which has impacted her business," he said. 

The Director of Public Prosecutions (DPP) did not object to the application to prevent the media from covering the proceedings. 

However, the magistrate stated that just because an application has not been opposed does not mean it has merit but it must be supported by valid reasons. 

"Although the prosecution has no objection, the suspects have not provided this court with reasons why this matter of public interest should be heard in chambers. As a result, the application is dismissed ," said Ms Orora. 

At the same time, the magistrate has granted the police the right to hold the suspects for another 10 days in order to complete their investigations. 

Despite the protests of the suspects, Ms Orora ruled that there was no harm in allowing the investigators to complete their work before deciding on the next course of action. 

She noted that Section 33(10) of the Prevention of Terrorism Act allows for the detention of terror suspects for up to 365 days. 

"Due to the sensitive nature of this case and the areas yet to be covered by the investigators, as stated in his affidavit, I find no harm in allowing the 10 days sought to enable them to complete their investigations," she said.

The suspects had objected to this action and urged that a charge be filed against them because the police had determined they had committed an offense before arresting them. 

"Once the police have completed their investigations, they can prefer charges and amend the charge sheet. Detention in police cells is tantamount to imprisonment," Mr Aboubakar stated. 

The lawyers also questioned how the suspects  could be blamed for the inefficiency of state agencies, pointing out that the police had ample time to complete their investigations. 

They also wondered how the suspects would interfere with investigations and processes carried out by state agencies when they were not a part of them. 

According to the suspects, they cooperated with the police, are not a flight risk, and no evidence linking them to the alleged terror groups has been presented in court. 

"It is our humble submission that the police application does not meet the threshold for court to allow for continued detention of the suspects.Their arrest was based on mere suspicion, not on compelling evidence," the advocate explained. 

According to the police, Mr Musab and Mr Mistwah were on a mission to meet an unknown terror operative in Kwale in order to carry out a terrorist attack in Diani. 

So far, police have claimed that the Austrian-made Glock pistol, loaded with 15 bullets, was used to commit a serious crime in Kisauni and was going to be used to commit another crime during the holiday season. 

The police will use the extra 10 days to gain access to the suspects' mobile phones and explore and analyze the data stored on them. 

The cellphones were sent to the ATPU Headquarters in Nairobi for further extraction, analysis, and transmission to the Google firm. 

The officers also want to know if the respondents are members of a terrorist organization with operations in Somalia and ISIS. 

In addition, the detectives will examine their Mpesa and bank accounts to see if they have any financial ties to terrorism. 

They allegedly refused to reveal their bank accounts and provided incorrect passwords, obstructing investigations. 


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