A terror suspect whom police claimed was found in possession of video clips of Al-Shabaab warning of an impending attack in the country has been acquitted for lack of evidence linking him to the militants.
Yasir Azam Abdulakhan who police have also claimed is linked to Islamic State of Iraq and Syria (ISIS) was discharged of ten terror related charges after the court found that there was no sufficient evidence linking him to any terror group.
The Mombasa Senior Principal Magistrate (SPM), Henry Nyakweba dismissed the charges terming the prosecution evidence ‘fatally insufficient’ to sustain the charges against the accused.
“In the upshot, I find that the evidence adduced is not sufficient to sustain a conviction in the event that the accused opts to remain silent in his defense. Accordingly, I dismiss all the counts facing the accused person, acquit him and order that he be set at liberty forthwith,” the magistrate ruled.
The prosecution had told the court that the suspect was found in possession of a mini glog pistol loaded with three bullets without firearm certificate at his residence in Majengo mapya, Likoni Sub-county on September 20, 2016.
The suspect was also accused of being in possession of video clips and documents that had pictures and wordings that were intended for the use of instigating the commission of a terrorist act.
The court was told that the video clips had men dressed in jungle uniform and they were singing confirming that they are members of Al-Shabaab and were coming from Mpeketoni to Mombasa to slaughter people.
The suspect, who had the Muslim holy book of Koran in his hands, kept on smiling for the better part of the judgment as the magistrate dismissed the offences he had denied committing one after the other.
The police claimed that they had recovered the items in the accused bedroom under a mattress.
The SPM noted that the prosecution case was punctured when the items especially the firearms was not dusted for fingerprints to link it to the accused person.
“Failure by the police to dust this pistol was dereliction of duty. I wonder how the decision that he was in possession of these items was arrived at yet his bedroom was occupied by two persons. He is not charged as having been in possession of these items with the other person,” he said
He further stated,” The evidence available is not in my view sufficient to establish possession. Further, upon recovery none of the items was marked for identification. The investigating officer only prepared exhibit memo and forwarded them to experts, who were not called to testify, for examination.”
The magistrate said the court could not reasonably tell whether the items produced in court are the same ones recovered by the arresting officers.
Nyakweba also noted that the experts at the Anti-Terror Police Unit headquarters in Nairobi, who conducted forensic investigations on the video clips and the accused mobile phone, were not called to testify thus created lacuna in the prosecution’s case.
The court maintained that police constable, Bernard Gitonga , an expert who analyzed the items conceded that he did not analyze data from the accused mobile phone because it was not compatible with the machine he used as well as the two sim cards since their pin numbers were not given to him.
“Only SD Card was analyzed, videos retrieved from it could not link them to having been played using the accused cell phone. This was not exploited. Failure to exploit this phone was in my view fatal as one cannot reasonably tell that the SD Card was being used and whether the phone belonged to the accused,” the magistrate said
The Investigating officer, Bernard Nudavadi had during cross-examination admitted that he had no evidence to connect the accused person to any terrorist group not even ISIS.
“This statement in itself summed the fate of all these counts which are all offences related to terrorism as it exonerates the accused from knowing that the articles belonged to him and was intended for use in the preparation or commission of a terrorist act,” Nyakweba said.
The court also noted that police did not bother to confirm from the telecommunication company Safaricom whether the accused was the owner of the sim cards recovered in the phone and also whether he had communicated with persons linked to terror groups.
The investigators said they had received intelligence that the suspect was to receive an assault rifle A K 47 from Somalia and that he had links with terrorists.
By Hussein Abdullahi