Kenyans can now back their reason for travel on a judgment by the court that it is not an offence to ignore the immigration officer as internal security minister Joseph Nkaiserry has not gazzeted the horn of Africa nation as a terrorism country.
The National Assembly passed Prevention of Terrorism Act in 2012 and the State has been using that law to arrest people on presumption that they are leaving the country into Somalia for training by the al-Shabaab. When those arrested are arraigned before a Magistrates Court, they receive 10 years jail term.
The Government has suffered a major blow in its bid to control travel to Somalia through the boarder point as High Court Judge George Dulu said it was wrong to arrest individuals as the prevention of terror law does not create an offence termed as ‘traveling to a terrorist designated country’ without going through a designated immigration exit point. “I still hold that the above is the position. The Cabinet Secretary has to designate Somalia as a terrorist country before such an offence can arise. The prosecution has neither referred to nor produced a copy of the Notice in the Kenya Gazette published by the Cabinet Secretary designating Somalia to be a terrorist country,” ruled judge Dulu. “Therefore in my view, the charge sheet is defective as it does not disclose an offence known in law.” Director of Prosecution for a second time conceded to the appeal filed by Pius Wambua, John Odhiambo, Nicholas Mukahoma, David Mburu and Peter Wainaina noting that there were gaps that were not considered while passing the sentence on the accused persons. The five had already admitted committing the non-existent offence but as they pleaded for leniency, the magistrate recorded that they had pleaded not guilty. The judge found: “Consequently, the appellants herein were wrongly convicted and sentenced by the trial court. I agree with the prosecuting counsel. I allow the appeals and quash the convictions of all the appellants herein and set aside the sentences imposed.” Justice Dulu was faced with a similar case late last year in which one Richard Baraza was slapped with the same sentence but appealed saying that he had no intention to cross Somalia for terrorism training.