How State blew up Sh1.3b heroin case as convicts walk free after 11 years

On August 29, 2014, drug-laden MV Busheher Amin Dayrya (Al Noor) went up in smoke off the coast of Mombasa after it was blown by the Kenya Defense Forces (KDF). 

Kenya Defence Forces deployed three naval ships, tugboats, MI-17 Russian-made helicopters, and fighter jets for aerial reconnaissance. 

At 4.10 pm, a huge explosion was heard, and the ship and the suspected drug haul were reduced to ashes. President Uhuru Kenyatta, flying low in a chopper, made a thumbs-up sign. 

Although the destruction of the Iranian-flagged ship was hailed as a bold move against drug barons, legal arguments arose on whether it would affect the prosecution of the suspects arrested on board. 

Lawyers and judges said the destruction was "premature", adding that most probably the identity of the vessel owner could have been revealed, had it not been blown up. 

Others questioned if the destruction was done as outlined in the Narcotic Drugs and Psychotropic Substances Control Act of 1994 and regulations published in 2006. 

The ship was seized in Kenyan waters off the Lamu Coast on July 1, 2014, with heroin worth sh1.3 heroin. At least nine foreigners were arrested at charged at the Mombasa Court. 

Meanwhile, the captain of the ship captain died on board before being charged. The prosecution claimed that the suspects had confessed to the offense, although it was later established that the suspects could not understand English.

The defense case was also bolstered by Thomas Mwau, an expert from the Mining Ministry, who testified that none of the 10 samples taken from the vessel tested positive for narcotics. 

Mwau told the court that the samples he took randomly from 10 of the 250 bags seized on the ship in July 2014 tested positive for gypsum. 

And last week, the decision by the state to destroy the ship is one of the many controversies that came to haunt the state after High Court overturned the conviction of the seven foreigners. 

During the hearing of the case, the court rejected photographic evidence, saying there was no certificate to prove that it was taken by a forensic expert. 

The court had planned to visit and inspect before it was blown up at sea. A few days earlier, a defence lawyer had promised to identify its owners but this was not to be.  

In acquitting the foreigners, Justice Wendy Kagendo cited the destruction of the ship, terming it a glaring mistake that weakened the prosecution’s case. 

“The destruction of the evidence, in particular, the shelling and blowing up of the vessel, which had been ‘intercepted’ and unlawfully arrested while on international waters, in the middle of the sea in the full glare and witness of the whole world while the trial was still underway, on the orders of the head of state of the republic of Kenya was a clear indication that the case the accused were facing had already been determined,” said Kagendo. 

Yousuf Yaqoob, Yaqoob Ibrahim, Saleem Muhammad, BhattiAabdul Ghafoor, Bakhsh Moula, Prabhakara Nair Praveen and Pak Abdolghafar tested freedom after 11 years in Kenyan Prisons. 

The seven were sentenced to life imprisonment on March 10, 2023, after a trial spanning 10 years.

But on May 29, this year, the convicts were released. 

The judge said that the entire investigation and case were based on some intelligence whose whereabouts and source remain unknown. 

The judge said the arrest and investigations of the ship crew members were worrying because no one seemed to have followed the law, and none of the investigators produced any search warrant while boarding the foreign ship and arresting the ship crew. 

Kagendo also said the Office of Director of Public Prosecution (ODPP) also goofed by failing to ensure that foreigners had qualified interpreters who understood Farsi/Persian.

In their appeal, the seven foreigners faulted the magistrate for convicting them in proceedings that were conducted in a language that they did not understand. 

“We cannot rubbish all our procedural laws, say come what may, and damn the consequences.  I note that the appellants were elderly foreigners who could barely follow what was going on,” said Kagendo.

The judge punched holes in the admissibility of illegally acquired evidence by the investigating officer Dr Hamisi Masa. 

The judge questioned how the captain and crew of the ship confessed to having the drugs to Chief Investigating Officer Hamisi Masa yet the confessions were obtained from persons who could not understand the English language. 

She said that once the first package was recovered, the subsequent confession was also unprocedural. 

The judge said the laws and procedures as to how the searches are meant to be conducted were not followed and that many people were aboard the vessels and the searches continued even late into the night. 

“It was noted that the crew members did not speak nor understand the English language. It was only the captain who spoke a little bit with difficulty. His said confession was also obtained under very stressful conditions when his crew member died under mysterious circumstances and at night,” said Kagendo. 

She said numerous local and international authorities establish that the admission of illegally obtained evidence must be excluded in a trial if it renders the trial unfair or where admission of such evidence is detrimental to the administration of justice. 

“Notably, evidence ought to be obtained in accordance with the provisions of both the Constitution and the law. Obtaining evidence without first obtaining appropriate warrants violates Constitutional norms and infringes on the right to property as well as the right to privacy,” said Kagendo. 

In the appeal, the seven convicts said the magistrate relied on evidence whose chain of custody could not be ascertained to convict and sentence them. They said the magistrate convicted them on planted evidence whose search and collection was in their absence. 

Justice Kagendo noted that the seven foreigners were arrested, searched and traumatized with complete disregard for their status as foreigners, without a warrant, without the presence of a representative of their foreign mission or embassy staff, as well as the absence of a legal representative to witness the horror of a search from July 2, 2014, to July 18, 2014. 

“The trial was conducted without due regard to the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) 1982 which is the Mother law that governs all activities in national as well as international waters, as well as all other Conventions, Treaties and Agreements to which the Republic of Kenya is a Party and a Signatory, in furtherance of Article 2[5] of the Constitution of Kenya, 2010,” said Kagendo. 

The judge also noted that the ship’s floor was cut and the contents retrieved when the convicts were away being charged on July 9, 2014, at Mombasa law courts.   

It also faulted the ODPP on the quantity of drugs, especially the amount found in the liquids. 

“If I dissolve a solid, say 5gms sugar into a Liter of water, can the entire Liter of water be said to be a Liter of sugar? Definitely not. That exaggeration of the quantity of drugs also affected the value and consequently, the sentence that was meted out,” said Kagendo. 

She said the State did not prove that all the crew members acted with one common intention as required under sections 20 and 21 of the Penal Code. 

“The senior investigator should have considered some aspects such as where the owner may have loaded the drugs without the crew’s knowledge or involvement and that the ship’s captain, who died, may have been complicit, but it was not proved that all the crew were aware,” said Kagendo. 

She said the whole case and conviction had a hand of the big brother, the undisclosed informer that led to the rubbishing of all the procedural laws. 

Kagendo said the case started with some intelligence and it appears that someone out there was calling all the shots, the reason why all the rules of procedure were thrown out of the window. 

“As stated above, there was the hand of Big Brother, the undisclosed informer, but we do not bend all our rules to please someone. I say this because, from the proceedings, we can neither blame ignorance nor inexperience.  We had very senior and capable officers,” said Justice Kagendo. 

The court said the charge as drawn was defective and the elements thereof not proved and there were too many breaches of the law that the appellants cannot be said to have had a fair trial.  

“The conviction is quashed and the seven appellants acquitted of the charge of trafficking in narcotic drugs contrary to Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act Number 4 of 1994. The sentence is set aside and the seven appellants may be set at liberty,” said Justice Kagendo.