Haji, Kinoti headed on a collision course over terror arrests
Director of Public Prosecutions Noordin Haji (left) and Director of Criminal Investigations George Kinoti before the Senate Committee on Justice and Legal Affairs on December 5, 2018
A fresh row is looming between the Directorate of Criminal Investigations (DCI) and the Office of the Directorate of Public Prosecutions (ODPP) over the procedure to be followed before the arrest of terror suspects.
The prosecutor wants the Anti-Terrorism Police Unit (ATPU) to notify him before making any arrests, a proposal that is likely to be turned down by the DCI due to the nature of their operations.
The proposal is contained in new guidelines launched on Tuesday to guide prosecutors, financial agencies and ATPU during investigation and prosecution of terrorists and terror financiers in the country.
In the guidelines developed by the ODPP, state agencies and the civil society, the ATPU shall – save for exceptional circumstances – inform the prosecutor when the unit is building evidence against a suspect and when planning to make an arrest.
ATPU officers arrest a terror suspect in Mombasa on August 23, 2021.
It should also inform the ODPP when planning to apply for search warrants or detention orders against the suspects or their property. “Where an arrest is made without prior notification of the ODPP, the ODPP shall be notified immediately,” state the guidelines.
Speaking during their launch, Central Bank Governor Patrick Njoroge said the county’s positioning as a major transportation and communications hub and its geographic location makes it prone to terror activities.
“Given the transnational nature of terror financing, Kenya needs to adopt an inter-agency and holistic approach that is not limited to law enforcement agencies, but includes financial sector regulators, the registration services, the Financial Reporting Centre and private entities such as banks in efforts to tame terrorism financing,” he said.
Scrutiny
The ATPU is an elite unit under the Director of Criminal Investigations George Kinoti, who reports to the Inspector-General of Police. Its operations are held in secrecy owing to the sensitive nature of its functions.
The involvement of the ODPP in its investigations implies a change in the status quo and may expose its investigators to more scrutiny. DPP Noordin Haji said the guidelines are intended to seal any gaps that may be observed when the suspect is arraigned and guide on the possible offences to charge.
They are also meant to guide the ATPU on lines of enquiry, investigation techniques, bail considerations, potential need for expert evidence and how evidence should be presented in court.
The guidelines stipulate that at the point of arrest, terror suspects shall not be compelled to make any confessions or admissions that could be used in obtaining evidence against them unless as limited in law.
ATPU has been on the receiving end over claims of torturing and enforcing the disappearance of terror suspects with statistics from Missing Voices Coalition showing that last year, 36 persons were reported to have disappeared during anti-terror operations.
“Four of these were later found dead while two were alive. About 30 are still missing. Most of the cases of enforced disappearances were as a result of anti-terrorism operations,” said International Justice Mission Country Director Benson Shamala.
Multi-agency handling
Mr Haji said the guidelines seek to enhance multi-agency handling and coordination of terrorism investigations.
“Reluctance to share information is no longer tenable. No single agency can effectively or single-handedly combat terrorism and its manifestation because this is a crime that cuts across multiple jurisdictions. Uncoordinated, unilateral actions by one agency can produce only limited results in the fight against such a complex threat,” he said.
ATPU was established in 2003 as a unit based at the police headquarters to investigate all terrorism matters and apprehend suspects after attacks on the US Embassy in 1998 and on an Israeli-owned hotel in Kikambala in 2002.
Since its formation, the unit has been credited for the success of multiple anti-terror operations, including the foiling of a biological attack that was to use anthrax in 2016.
However, as terror activities evolved and increased with time, enforcement agencies changed their modes of handling of suspects and convicts. The launch of the guidelines is happening at a time when reports are showing that court officials are “facilitating terror activities” through corruption.
