The High Court in Mombasa has ordered Inspector-General of Police Hillary Mutyambai to investigate the abduction and disappearance of Mohamed Abubakar Said, who has a Sh10 million bounty on his head.
Resident Judge John Mativo found that the police had failed, refused and or neglected to investigate the alleged kidnapping when the matter was reported to them.
“An order of mandamus be and is hereby issued compelling the IG to immediately investigate the alleged abduction and disappearance of Mr Said and forward the investigation docket to the Director of Public Prosecutions Noordin Haji,” the judge said.
The IG was given 21 days to do this.
Mr Said was picked up at gunpoint from a mosque in the Seven Up area of Majengo, Mombasa, October 14 last year after Ishaa prayers. He has not been seen since.
Days after the Umma University student disappeared, the Director of Criminal Investigations George Kinoti published a list of wanted terror suspects with a Sh10 million bounty on each of them, describing them as armed and dangerous.
They were Mr Said, Salim Rashid Mohammed, Trevor Ndwiga, Elgiva Bwire, and Barigi Haila.
The five are wanted over terrorism allegations and for joining the Al-Shabaab terrorist group.
Mr Rashid, alias Chotara, was arrested earlier this year in the Democratic Republic of Congo (DRC), where he is still being held.
However, Justice Mativo noted that Mr Said’s inclusion on this list was to cover up the police’s failure to investigate his disappearance.
The judge also said the facts presented in this case demonstrate all the elements of an enforced disappearance, adding that serious claims of abduction by persons claiming to be police officers must be investigated and appropriate action taken as the law permits.
“The attempt by the DCI to publish a notice describing the victim as armed and dangerous, coming as it did weeks after a report was made to the police on the alleged abduction, suggests that the said notice was issued in bad faith to cover the failure to investigate,” said the judge
Abdulrahman Said filed the case on behalf of the suspect. He sued Attorney-General Kariuki Kihara, DPP Noordin Haji, AG Mutyambai and Safaricom Ltd.
Haki Africa, which joined the case as an interested party, told the court that it had forwarded to the police video and audio files to assist them in investigating the case but they did not do so.
Executive Director Hussein Khalid described the case as an example of enforced disappearance, noting that between January and October 2021, the group recorded 42 such cases and 18 in 2020.
“All were arrested on alleged anti-terror operations. From available evidence, this is not normal kidnapping. Phone call data placed the subject within the abduction area,” Mr Khalid said.
He said the student had been picked up by individuals who were armed and identified themselves as police officers and bundled into a motor vehicle with the registration number KCM 697N.
But Inspector Leonard Namutali told the court that a search of the National Transport and Safety Authority (NTSA) records did not find information on the motor vehicles KCM 694N, KCM 697N and KCF 659U that were said to have been used in the abduction.
The AG and the IG acknowledged that a report was made at the police station but argued that a signal was transmitted to all police stations notifying them of a missing person.
“The subject is not in police custody and a search at the NTSA revealed that the alleged vehicles were not registered and that investigations are still ongoing,” they said in court documents.
But the court noted that the state’s explanation was full of contradictions and inconsistencies.
“To me, the cited inconsistencies are not trivial, but they are substantial and material in that they go deep into the heart of the dispute, they point to untruthfulness on the part of the police,” the judge said.
He also faulted the police for failing to investigate why the vehicles implicated were not registered with the NTSA.