Two found guilty of 2013 Westgate attack, one freed

Thursday, October 8th, 2020 00:00 |
Westgate Mall terror attack suspect Liban Omar leaves a Milimani Law court after he was acquitted yesterday Photo/PD/CHARLES MATHAI

Two men have been found guilty of conspiracy to commit the terror attack that killed 67 people at Westgate Mall in 2013.

Ahmed Abdi and Hussein Mustafa were convicted of conspiracy to commit a terrorism act and knowingly supporting the commission of a terrorism act.

Chief Magistrate Francis Andayi, however, acquitted Liban Omar of all charges.

“The two accused persons knew of the plot and were acting in contact with the four attackers who were murdered in the attack,” ruled Andayi.

According to the magistrate, there is a strong link that the two were involved in the conspiracy to commit the terrorism act and that their defences and denials that they had nothing to do with the attackers were dismissed

“The pattern and frequency betrays the allegations that they were only friends with the attackers.

Therefore, their defence and denials are without substance and I dismiss,” said Andayi.

According to the magistrate, it was not necessary for the prosecution to show a formal agreement among the conspirators for the conspiracy charge to stand.

“What is required is evidence that each of them committed themselves to a common intent.

The four conspirators may not know each other but it is no dispute that the prosecution evidence is depended on communication,” he ruled.

The magistrate noted that although there was no evidence that they gave support financially to the attackers, their communication with them was a form of giving support.

“The prosecution has proved its case and I find them guilty and convict them accordingly,” he ruled.

The magistrate further convicted Abdi of being in possession of terrorism material found in a laptop in his possession when he was arrested.

Abdi was found in possession of videos titled “Training series in Swahili” and “Ambush at Bardale” which the prosecution said can be used in the instigation and facilitation of acts of terror.

He had denied he was in possession of the said laptop and had declined to sign an inventory because it included the laptop.

Found with laptop 

The magistrate, however, ruled that he was satisfied that the suspect was found with the laptop.

“I find it presposterous that out of the blues the investigators planted the laptop.

I’m satisfied the information contained in the laptop was for use in instigating a terrorism act.

The several videos showed a pattern that this was someone who so much interested in committing a terrorism act,” he said.

While acquitting Omar, the magistrate noted that he was communicating with his step-brother who was one of the attackers and his brother used his phone to communicate with other attackers.

In January last year, the magistrate acquitted one Adan Dheq who was charged alongside the three for lack of evidence.

Dheq faced charges of being a member of al Shabaab and harbouring one of the terrorists, Abidikadir Mohammed alias Mohammed Hussein, whom he knew had committed a terrorist attack.

“I have considered the evidence on record and the submissions by the defence and hereby put Ahmed Abdi, Liban Omar and Hussein Mustafa on their defence.

I acquit the third accused, Adan Dheq under section 201 of the Criminal Procedure Code (CPC),” the magistrate had ruled.

Intention to appeal

Yesterday, lawyer Chacha Mwita stated that his clients were not satisfied with the ruling and intended to appeal.

“They, however, appreciate that the case had been fast-tracked with the current magistrate as the matter had been handled by four magistrate since 2014,” the lawyer said.

State prosecutor Edwin Okello also said he will appeal the release of Omar.

“It has been a long journey, we know how this affected our country and the number of those who perished.

We want to put more emphasis on how the victims have been affected. The maximum sentence of those counts they have been convicted on is 20 years each,” he said.

The Al Shabaab terror group is linked to international terrorism group al Qaeda.

It has been waging terrorist attacks on Kenya, more so after former President Mwai Kibaki sent troops to Somalia to fight the militants in 2011.

Kenya invaded Somalia after a series of cross-border raids by the militant group. Some of the reasons cited by Kenya include abductions of tourists along the Coast.

Four of the suspects who carried out the Westgate attack were killed in the four-day standoff foloowing the raid.

They were identified as Abu Baara al-Sudani, Omar Nabhan, Khattab al-Kene and Umayr.  They were identified through CCTV footage.

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