US embassy cable - 05NAIROBI2409

C O N F I D E N T I A L SECTION 01 OF 02 NAIROBI 002409 
 
SIPDIS 
 
TERREP 
 
E.O. 12958: DECL: 06/09/2025 
TAGS: PTER, ASEC, CASC, PHUM, PGOV, KISL, KE, IS 
SUBJECT: TERRORISM TRIALS: MURDER SUSPECTS RELEASED 
 
REF: A) NAIROBI 2071 B) NAIROBI 1947 C) NAIROBI 1700 
 
Classified By: POL/C Michael J. Fitzpatrick, reasons 1.4 (b,d) 
 
1.  (C)  SUMMARY:  A Kenyan judge ordered June 9 the 
immediate release of four al Qaida suspects who had been on 
trial for murder.  He ruled the prosecution failed to provide 
any evidence connecting the accused to the November 2002 
suicide-bombing against the Israeli-owned Paradise Hotel in 
Kikambala, Kenya. Prosecutors immediately slapped new 
criminal charges against one of the defendants, thus keeping 
Omar Said Omar off the streets; the other three defendants, 
however, left prison several hours after the judge's 
decision. CDA has expressed our concerns to both the Acting 
Foreign Minister and to the Deputy Permanent Secretary for 
Security.  END SUMMARY. 
 
2.  (U) In a major setback, the presiding judge in the murder 
trial against suspected al Qaida terrorists responsible for 
the November 2002 twin terrorist attacks in Mombasa and 
Kikambala ruled June 9 that the prosecution did not present 
sufficient evidence to continue the trial and has ordered all 
four suspects be released immediately.  Omar Said Omar, Aboud 
Rogo, Mohammed Seif Kubwa and Ali Saleh Nabhan were cleared 
of all 15 counts of murder and returned to the prison to be 
out-processed and released today.  Part of the judge's 
11-page statement read, "there is no evidence direct or 
circumstantial which connects the accused to the Al Qaida 
network and their involvement in the preparation, planning 
and the bombing of Paradise Hotel... Where is the evidence 
that connects the accused to the murder of the deceased at 
Paradise Hotel?  None, none at all." 
 
3.  (C)  Prosecutor Edwin Okello and Department of Public 
Prosecution (DPP) Director Keriako Tobiko both separately 
confirmed new charges would be filed today against Omar Said 
Omar. Okello's exact words were "No way I'm letting him walk 
out of prison today."  Omar has since been charged with new 
offenses and denied permission to leave the prison today 
because of the new charges. The three other suspects, 
however, have been released from prison. (NOTE: The new 
charges could not legally be filed against Omar while he was 
still on trial for a capital offense. END NOTE.) Okello told 
Resident Legal Advisor new charges may include possession of 
firearms (maximum punishment 5 years), possession of 
ammunition (5 years), possession of forged national i.d. (7 
years) and providing false information to a public official 
(3 years).  Omar may now be held for up to 14 days on these 
charges before a judge must rule on bail.  Tobiko told 
PolCouns the new charges are technically bailable offenses 
but that, given the serious nature of the bombing and 
presumed flight risk, it is "highly unlikely" that any 
magistrate would grant bail.  Tobiko has also asked Okello to 
review the judge's decision -- a copy of which the Embassy 
obtained from court -- for possible grounds for appeal. 
 
4.  (SBU)  POL/FSN attended the trial and reported large 
crowds of supporters in conservative Muslim garb filled the 
courtroom and corridors.  He noted that a sizable group of 
young Muslim men donned black hats, as opposed to the 
traditional white.  Spectators chanted "God is Great" in 
Arabic immediately following the ruling and followed the four 
men to the truck that transported them back to the prison. 
One of the suspects' children spoke to local media, stating 
in front of television cameras that justice has been served 
and asking for Allah to take revenge on those who persecuted 
his father and persecute Islam.  Two on-lookers told POL/FSN, 
whom they mistook for a journalist, that although "America 
controls the media", today justice was served. 
 
5.  (U)  The magistrate in the separate but related 
conspiracy trial against suspected Kikambala terrorists Kubwa 
Mohamed Seif, Said Saggar Ahmed and Salmin Mohamed Khamis is 
set to rule on June 21.  The defense has rested its case in 
that trial; only a final ruling remains. 
 
6.  (C)  CDA privately expressed Embassy's concerns to Acting 
Foreign Minister Wetangula at an event midday June 9. 
Wetangula, who had not heard the news, expressed surprise and 
chagrin, and invited CDA to meet at his office early June 10 
to discuss the matter.  Given the foreign travel of Security 
Minister Michuki, CDA also telephoned Deputy Security 
Permanent Secretary Musasia June 9 to express our concerns 
and inquire as to the Government's next steps.  Musasia 
acknowledged our concerns over the potential security 
ramifications of the release of the suspects. 
 
7.  (C) COMMENT: While not unexpected, today's ruling 
demonstrates a serious failure of the Kenyan government to 
confront terrorism and to investigate and prosecute suspected 
terrorists. In the coming days, we expect to see much public 
outcry from elements within the Muslim community, 
particularly on the Coast, against the government and "those 
who persecute Islam" (which we read to mean the U.S. and 
Israel) for holding these men for 27 months despite their 
"innocence".  Rumors already circulated outside the prison 
following Omar's re-arrest that he is now being held for 
extradition to the U.S.  Certain vocal Muslim leaders, such 
as the Council of Imams and Preachers of Kenya, will use this 
as a rally point both to accuse the government of 
discriminating against Muslims and to fight any future 
legislation or amendments that address terrorism issues. 
Omar's re-arrest will likely cause the biggest outcry in the 
Muslim community and could re-ignite accusations that the GOK 
is acting at the U.S. and Israel's behest and is being paid 
for the arrest and trial of terror suspects. RSO is in close 
contact with GOK police authorities in the event 
anti-American rhetoric heightens.  END COMMENT. 
ROWE