BY SAM ALFAN.
Two Iranians detained in Kenya under supreme court orders has accused the court of exercising illegal political powers without lawful jurisdiction over the two Iranians.
Ahmad Abolfathi Mohammed and Sayed Mansour Mousavi through their lawyer Ahmednasir Abdullahi accused the superior court of being used by the state to legitimatize the illegal and unlawful detention of the the two.
Detention without trial is back!!! CJ Maraga and 4 judges of the Supreme Court rule today that the Supreme Court has power to detain a prisoner acquited by the Court of Appeal…so 2 prisoners held now for 9 months in police cell following the order by the Maraga Court.
— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 28, 2018
They further accuse the court which is led by Chief Justice David Maraga of exercising what they term as “political justice”.
“The proceeding herein is in nature of a political show trial conducted by the court at the insistence of the state. Like all political show trials, the judgment of the Court, if the Court’s two previous rulings in the matter are anything to go by is a pre-determined and a foregone conclusion. The Respondents are reluctant participants in this political show trial,” Ahmednasir said in submissions.
The senior counsel submitted that the two are prisoners of conscience held by government of Kenya with the assistance of the supreme court and are being detained or held pursuant to orders issued by the court under powers that are essentially political and obviously extralegal.
The duo accused the court of being bias against them and lacks impartiality and the minimum ingredients of independence from the state and it agents in hearing and determine the case.
“This total lack of independence on the part of the Court has been extravagantly exhibited in the two rulings delivered by this Court in this matter. The Court had previously based its decision on extraneous political factors/considerations that are underpinned by a nationalistic affinity between the Court and the state. The two previous rulings were not based on a known statute or the Constitution of Kenya,” said Ahmednasir.
He added that there was zero chance of success appeal by look of submissions “the appeal is bogus” and term it as incompetent and frivolous appeal.
“The appellant (DPP) is not relying on the strength of the case, it is relying on this court to do it one final favor and simply continue the detention of the respondents,” submitted Ahmednasir.
Ahmednasir said the order of 23 of February this year by supreme court is the start of the problems facing Ahmad Abolfathi Mohammed and Sayed Mansour Mousavi and the author of their misfortune is the court.
He said the said order gave seal of judicial approval to the illegal and forced detention of the Respondents by the state notwithstanding their acquittal by the Court of Appeal.
He further said the court allowed the state to hold the respondents in a manner that is not regulated by a known legal regime.
“When the Inspector General of Police failed to comply with the court order, we duly filed a contempt application. Despite the state by exercising it from complying with the court order,” said Ahmednasir.
Supreme Court judges led by Chief Justice David Maraga ordered that the two be held in custody in a manner that is in accordance with the law without violation of their rights pending an application by the Director of Public Prosecutions (DPP) seeking to quash their release.
With all due respect SC, we (@ODPP_KE ) presented the best legal arguments. Its one of the best decisions ever rendered by the Supreme Court. Well detailed, well reasoned decision.
Sorry it did not go the way you would have loved. https://t.co/rPQLbPYntt— Duncan Ondimu, O.G.W (@matundura78) September 28, 2018
Ahmad and Sayed filed the contempt-of-court proceedings against Boinnet alleging that they were held in a police cell in a deplorable condition in contempt of their rights enshrined in the Constitution.
Supreme court Justice J.B Ojwang directed that Ahamad Abolfathi Mohammed, and Sayed Mansour Mousavi remain within the jurisdiction of the supreme court.
“The applicant will be contesting the release by the appellate court, of the two who were facing charges bearing claims of serious threat to the security of citizens –notable the charge under the Explosives Act,” rule justice Ojwang.
The court further certified the matter as urgent.
The DPP in its appeal say that it is dissatisfied with the judgment issued by the court of appeal adding that it erred in law by quashing the sentence and setting the two free.
He says that it is clear that legal burden of prove in criminal cases is only one and rest upon the shoulders of prosecution adding that it remains constant throughout the trial and does not shift.
Ahmednasir also claims that the evidence adduced and sought to be relied on by the prosecution in this case is very circumstantial and not direct evidence.
Supreme Court suspended decision by court of appeal that acquitted and ordered repatriated of two jailed Iranian over terror links.
“We order that pending the filing, hearing and final determination of the applicant’s intended appeal, the respondents’ acquittal by the Appellate Court is hereby stayed and the respondents shall be held in police custody”. Ruled the court.
