Author: Kenya Insights Team

By Declassified UK,

• Britain’s Foreign Office knew Kenya’s Anti-Terrorism Police Unit (ATPU) was involved in renditions of terror suspects yet paid for its new headquarters and continues assistance programmes, along with London’s Metropolitan Police, disclosures obtained by Declassified UK show.
• Torture of terror suspects by ATPU alleged to take place at UK-funded headquarters: ‘We normally just strip them, put them upside down… We tie their private parts. Tie with rope, and then we squeeze.’

• Metropolitan Police provides operational, forensic, strategic and intelligence support to ATPU

• Kenyan officers admit responsibility for extrajudicial killings by a CIA- and MI6-backed hit team, making the ATPU criminally liable for murder

• Suspects are ‘better dead than alive’, ATPU officers tell Declassified, and admit planting evidence on their wives as well as innocents wrongly killed

• ‘There’s tacit approval [for killings]’, former Kenyan vice-president tells Declassified. ‘You in the West believe that in the war against terror it is okay to have nothing to do with accountability.’

• Revelations come two weeks after UK defence secretary signed a refreshed security cooperation agreement with Kenya 

This is the fourth part of an investigation into the US and British secret war in Kenya. Read Part 1, Part 2and Part 3.

In April last year, British terror suspect Jermaine Grant was sentenced by a Kenyan court to a further four years in prison after being found guilty of possessing improvised explosive materials in prison.

Captured in Kenya in 2011, Grant was alleged to be an associate of another Briton, Samantha Lewthwaite, dubbed the “White Widow”. Grant had sneaked back into the country after allegedly receiving paramilitary training from the militant group al-Shabaab in Somalia and was believed to be part of a cell that planned multiple terror attacks over Christmas 2011.

While the operation to capture Grant was reported as a Kenyan police coup, it was in fact quietly led by a British Secret Intelligence Service (SIS, also known as MI6) liaison cell within Kenya’s National Intelligence Service (NIS). 

That cell, known as ARCTIC, is one part of systematic cooperation among MI6, NIS and the CIA in kill-or-capture operations targeting terror suspects, a previous months-long Declassified UK investigationrevealed.

Grant was bundled into the boot of a car by a CIA- and MI6-backed paramilitary hit squad in Kenya, known as the Rapid Response Team (RRT), and handed over to the investigatory Anti-Terrorism Police Unit (ATPU) for detention and prosecution.

A day after Grant’s sentencing, Britain’s then high commissioner, Nick Hailey, flew to the coastal city of Mombasa to unveil the latest in British counter-terrorism assistance to the ATPU. 

Together with the chief of Kenya’s Directorate of Criminal Investigations, George Kinoti, Hailey dug and broke ground to mark the site of a new $600,000 regional ATPU headquarters paid for by the British public.

The news offered a rare glimpse into the UK’s support to a police unit which has been mired in allegations of human rights abuses for over a decade.

UK financial assistance to the ATPU is just one node of a secretive effort to support the controversial police unit. Britain’s multi-pronged support for it is led by the Foreign, Commonwealth & Development Office (FCDO) and the counter-terrorism unit of the Metropolitan Police Service, SO15.

The ATPU is implicated in the RRT’s clandestine night-time raids, which have gunned down not only terror suspects but also innocents, Declassified revealed. RRT commandos – backed by NIS and ATPU officers – undertake raids against terror suspects in plain clothes, using unmarked hire cars, and swapping between private or unregistered number plates, in order to avoid identification. 

“They are fully aware of their criminal culpability so they move in under the cover of darkness, or in disguise, so that their identity is not known… in essence they operate like a criminal gang,” Kenyan public interest lawyer Willis Otieno explained. “So it is difficult to pinpoint exactly which officers were in charge of that particular operation.” 

Such tactics have made it difficult for researchers and lawyers to attribute responsibility to specific police officers and their units. As such, justice has remained elusive for the families of innocents killed, or suspects summarily executed in joint RRT-NIS-ATPU operations, Otieno said.

However, while ATPU investigating officers only play a supporting role in those operations, their senior officer on-site retains technical command and overall responsibility, ATPU officers admitted.

“After the briefing by the NIS, if we have got a senior officer from our side, like the OC [officer commanding] of Mombasa, even the Rec [RRT] will come under him”, an ATPU officer with over a decade’s experience said. Noting that the RRT would enter the building alone in order to neutralise – kill or capture – the suspects, he added: “But the person who will be responsible is our [ATPU] officer, the senior officer.”

While RRT officers are the only ones to breach the building and kill or capture a high-value or high-risk terror target, the presence of ATPU officers is essential to make arrests, secure the crime scene, and recover evidence for prosecutions.

“When an operation of that nature is being done, it is an ATPU operation,” Otieno said. “All the other officers of all the other units – that are seconded to this operation – they go in as part of the ATPU.”

Such responsibility makes the British-backed ATPU criminally liable for acts of murder or manslaughter by the RRT, Otieno said. 

Such instances include the murder of Omar Faraj, an innocent family man killed in a mistaken RRT-NIS-ATPU raid on his home in October 2012, and the alleged summary execution of five other terror suspects in separate cases, which Declassified revealed were operations undertaken by the RRT.

Illegal renditions

Much of the ATPU’s infrastructure and technical ability to prosecute terror suspects relies on years of support from Britain’s Metropolitan Police and Foreign Office. Despite multiple reports condemning abuses by the ATPU, the FCDO’s self-described “close working relationship” with the unit has grown over the past decade.

Yet excerpts from internal FCDO human rights risk assessments released to Declassified following a freedom of information request show that, as far back as 2011, it knew the ATPU had been involved in gross violations of human rights for which it has not been held accountable.

In a series of email exchanges between FCDO officials evaluating a project proposal for working with the ATPU, one email on 23 August 2011 concerning human rights violations by the ATPU noted, “There have been allegations, but no specific evidence despite us asking. Our real concern is renditions.”

An email on 1 December 2011 from an unnamed official told colleagues: “We are also aware that the ATPU was involved in unlawfully rendering as many as 12 people to Uganda on suspicion of involvement in the July 2010 Kampala bombings”. 

The reference was to the al-Shabaab-inspired terror bombings of a rugby club and restaurant in the Ugandan capital, which killed 74 people.

The Human Rights and Democracy Department of the Foreign Office also “flagged up a risk that Kenya Police could carry out operations in an unlawful manner or treat detainees in a manner inconsistent with international law”.

Human rights reports and testimony from RRT and ATPU officers to Declassified also show the unit’s involvement in the capture of terror suspects and renditions from Kenya to Uganda.

In the aftermath of the Kampala attacks, an ATPU officer familiar with the operations confirmed their police unit captured suspects Issa Luyima and Habib Njoroge on Kenya’s coast, and rendered them to Uganda. 

Njoroge later accused the British government and its intelligence agencies of being involved in his abduction, unlawful rendition and torture. However, the UK High Court rejected a legal challenge to disclose what the British agencies knew about their treatment.

Within days of the FCDO official acknowledging the ATPU’s role in illegal renditions, on 22 December 2011 another FCDO official inexplicably contradicted evidence already shared in FCDO internal memos. 

“There are concerns about the Kenyan authorities’ human rights record, including renditions and extra-judicial killings. But these concerns do not focus on ATPU,” the FCDO official said.

A year later, the FCDO funded a UK College of Policing project to train strategic leaders within the ATPU, a British police officer with knowledge of UK support to the ATPU told Declassified.

A further six months on, the UK fully funded and equipped a bigger ATPU headquarters in the Kenyan capital, Nairobi, to the sum of £381,716, disclosuresmade to Declassified show. The new headquarters includes holding cells, interrogation rooms, and the latest technology for conducting surveillance operations and forensic analysis. 

The FCDO refused to say which surveillance equipment it had procured for the new headquarters. However, internal ATPU documents obtained by Declassified show that ATPU capabilities include data extraction hardware (Universal Forensic Extraction Device, or UFED) supplied by the Israeli company Cellebrite. 

Declassified did not establish a specific case of abusive or illegal use of Cellebrite’s technology by the ATPU. Other recent investigations show that Cellebrite’s UFED hardware has been used by governments to aid repression in Bahrain and Indonesia. 

A Cellebrite spokesperson told Declassified “It is Cellebrite’s protocol and policy to not comment on specific customers or uses of our technology. We have strong licensing policies in place that govern how our integrated suite of solutions may be utilised.”

The spokesperson continued, “To ensure that the highest standards are followed, we also work to implement controls in line with the Wassenaar Arrangement. We sell our digital intelligence solutions to government agencies, law enforcement and enterprises around the globe for their use to lawfully access and analyse legally obtained data to bring resolution to investigations, create a safer world and preserve privacy.”

The FCDO did not answer Declassified’s query whether the British High Commission in Nairobi had bought or otherwise acquired the hardware for the ATPU. 

Edin Omanovic, advocacy director at Privacy International, told Declassified: “Not only does such tech provide security units full access to the contents of digital devices, it also reveals a huge amount of information that a lot of people don’t even know exists, including deleted messages, metadata contained within pictures and others apps, and data stored in the cloud.” 

He continued, “The secrecy surrounding the use of this tech makes it incredibly hard to know how it is being used. Without adequate legal protections and in the hands of authoritarian units, it is inevitable that this highly intrusive surveillance tech will be abused. 

“The idea that countries which lack basic adherence to rule of law or where security units regularly target people arbitrarily will use this tech in lawful ways is incredibly naive, at best.”

By 2013, Cressida Dick – then Metropolitan Police assistant commissioner and now its most senior officer – described the relationship between SO15 and the ATPU as “extremely good”. 

The comment came after the Met conducted its first joint operation with the ATPU, in response to the terror attack on the Westgate shopping mall in Nairobi in September 2013, which killed over 70 people. Following the attack an SO15 officer mentored the ATPU’s intelligence fusion centre, a collaborative effort between the two agencies to share resources, expertise and information.

Attempts to learn more about the Met Police’s counter-terrorism assistance through freedom of information requests in the UK were all rejected, spurring an investigation in Kenya.

In interviews conducted there, ATPU officers expressed pride in their training by British counter-terrorism police. They shared evidence they were trained in computer forensics by senior investigators working for SO15’s Hi-Tech Unit. 

With FCDO sponsorship, ATPU officers were also trained in casework management, covert human intelligence source handling and intelligence analysis by the National Policing Improvement Agency at Bramshill, southern England, which supports police forces by providing technical expertise. 

Torture

When terror suspects, particularly high value targets, are captured alive in Kenya, they are often flown or driven to the British-funded ATPU headquarters in Nairobi.

Reports of cruel, inhuman and degrading treatment and torture surround the ATPU’s handling of terror suspects during capture or interrogation. 

“At times some of them would not cooperate,” said one current officer. “So when they would not cooperate they would be taken to ATPU cells where they would be denied water and food for a day. When you deny a Muslim water, he won’t go for long. Actually, he will talk,” the officer said, referring to the need for water to perform ablution before prayer.

For the detainees deemed unwilling to talk, an ATPU officer said: “We normally just strip them, put them upside down. That’s the way we normally do… We tie their private parts. Tie with rope, and then we squeeze… We don’t leave scars. We’re professionals.”

A report in 2015 by the quasi-governmental Kenyan National Commission on Human Rights details extensive allegations of suspects’ testicles being pulled, twisted and pressed with pliers, including by the ATPU, in holding cells funded by the UK government.

Declassified asked the Metropolitan Police whether it was aware of the FCDO’s internal admission that ATPU officers were involved in illegal renditions or had ever investigated allegations that the ATPU tortured terror suspects.

The Met’s spokesperson, Laura Godman, said that, “Such allegations would not be a matter for the Met Police to investigate. Not prepared to discuss further.”

She added: “We do not discuss UK police deployments overseas; however, all such deployments are vetted by the Home Office. Police adhere rigorously to national and international human rights obligations and act in accordance with the FCDO Overseas Security and Justice Assistance Assessment for the relevant country, in order to ensure their overseas security and justice assistance work meets UK human rights obligations and values.”

In response to a freedom of information request by Declassified, the Met Police said that since January 2015 it has undertaken 11 separate human rights risks assessments for providing assistance to the ATPU, in line with Overseas Security and Justice Assistance (OSJA) guidance. In the past six years, the Met Police has sought to provide new assistance, or extensions of existing assistance, to the ATPU on almost a dozen occasions.

In March last year, the FCDO’s East Africa Crime and Justice Programme concluded a three-year, £6.7-million assistance programme to Kenyan and Tanzanian police and prosecuting authorities, delivered by the UK’s National Crime Agency, Crown Prosecution Service and College of Policing.

UK support to the ATPU is taking place at a time of worsening abuses, for which Kenyan forces remain unaccountable. In 2019 alone, Kenya’s Independent Policing Oversight Authority said 3,200 people reported cases of police abuse, which is six times the number who reported such cases in 2013.

In response to investigations published by the press and human rights groups, the FCDO has often expressed concern or willingness to investigate, should evidence of abuses be presented. In response to Al-Jazeera Investigates’ 2014 documentary on extrajudicial killings in Kenya, the Foreign Officesaid: “We take such allegations extremely seriously and raise concerns with the Kenyan authorities.”

In a report on UK security agencies’ role in handling a terror suspect arrested in Kenya, the UK Parliament’s Intelligence and Security Committee stated that, “Where HM [Her Majesty’s] Government has a close working relationship with counterterrorist units, they will share responsibility for those units’ actions.”

Yet British officials appear unwilling to seriously tackle the abuses. Former Kenyan vice-president Kalonzo Musyoka could not recall serious admonishment from US or British diplomats over Kenya’s abuses in the war on terror. “I cannot remember any serious reprimand… Absolutely not,” he said.

He continued, “The West is acting selectively. We have a government that has been involved in extrajudicial killings and they are treated with ‘kid gloves’ by the West… when it comes to the war on terror there is absolutely no accountability.”

However, Musyoka laughed off the FCDO’s boilerplate response to reports of human rights abuses by the ATPU. “It’s a diplomatic way of inaction,” he said.

Hear no evil

During its investigations in Kenya, Declassified found no evidence that British diplomatic, intelligence or police advisers reproached or held their Kenyan counterparts to account for abuses that have spanned a decade.

According to a security force officer, British officials do not want to hear complaints about the UK’s relationship to abuses by the ATPU, even in private meetings.

Asked how the West, particularly the US and UK, should push for accountability in the Kenyan security forces, Musyoka – who also twice served as Kenyan foreign minister – said: “You have to believe in accountability in the first place. It looks to me, you in the West believe that in the war against terror it is okay to have nothing to do with accountability.”

While the British High Commission in Nairobi continues to hold dialogues with Muslim civil society organisations, and partake in Islamic celebrations such as Eid festivities, Musyoka saw them as a “PR exercise”.

“There’s tacit approval [for killings] on the one hand, and this outreach on the other. Outreach looks good. It’s like, ‘alright, you guys go ahead and kill, we’ll do outreach’.”

Planting evidence

For ATPU officers interviewed by Declassified, operating under the shadow of Kenya’s National Intelligence Service (NIS) is their biggest frustration in investigating terror cases.

“ATPU doesn’t have the capacity to collect and gather intelligence about terror,” a former officer said. “We just work under their [NIS] shadow. In local terms, the ATPU calls NIS ‘big brothers’. Every terror case here originates from NIS, not the ATPU.” 

With NIS calling the shots, two ATPU officers independently recalled NIS instructing ATPU senior officers to plant weapons and extremist literature on suspects. 

For suspects killed in raids, planting evidence is easy, and justified, another ATPU officer said. “Those human rights people argue: if he was not armed, if he was not dangerous, you [ATPU] could have arrested him,” the officer said. “But you could not have arrested him because at that particular time, you don’t have evidence… So you have to plant evidence to say he was going to commit a crime.”

The officer continued: “At times we argue it is better to do a case with a dead person. Because what we say [about the dead suspect] is what we say. There is nobody to counter it.”

ATPU officers would also plant evidence on suspects killed in botched raids, intended to “calm the public”, an officer explained.

“If you take out a wrong target, there’s nothing to do now. You won’t let the public know that you’ve taken out the wrong target. You try to convince them that it was the right target. So you just try, you just plant evidence,” an ATPU officer said.

Two ATPU officers interviewed separately for this investigation said that officers would plant assault rifles – often an AK-47 – along with 7.62x39mm rounds, grenades or improvised explosive device components.

Declassified has been told ATPU officers would also plant extremist literature about holy war (jihad). The material planted on the suspects is often the same weapons and literature captured from other suspects, one ATPU officer explained. “We are the ones who are investigating so we can say anything,” the officer said.

In some cases, the planted evidence was intended to show intent to prepare or commission terrorist acts, a Kenyan criminal defence lawyer said, speaking on condition of anonymity for fear of reprisals. 

However, public interest lawyer Willis Otieno said that the ATPU would often not enter the planted weapons or literature as evidence in the prosecution, since it was unable to convincingly defend the provenance of the alleged captured material when subjected to thorough cross-examination. 

Instead, their alleged capture by the ATPU was a stunt designed “to sell a public narrative, and try to control the public conversation”, Otieno claimed. In doing so, the ATPU would also preempt challenges from the deceased’s relatives and deter scrutiny of the ATPU’s illegal actions, he added.

At times ATPU officers are instructed by their superiors to plant evidence on suspects’ wives so that the police can claim a prosecution. “In case of terror suspects, you go there and kill the husband, you count the exhibits on him and then you use the same exhibits to prosecute the woman.”

In an October 2012 raid on the home of Mariam Musadiki Kisanya in Changamwe, Mombasa, the ATPU failed to arrest Kisanya’s husband, Hassan Omondi Owiti, but found weapons allegedly belonging to him.

The ATPU officer recalled their interrogation of Kisanya about the weapons, in which she explained that she had confronted her husband after finding them while cleaning the house. Her husband dismissed her concerns, she said.

Having failed to capture Owiti, NIS and ATPU senior officers insisted that the investigating officers plant his weapons on then pregnant Kisanya, and claim they were hers.

“The husband has escaped and we failed to arrest [him],” an ATPU officer said. “Now we take this weapon and prosecute the woman for possession of those arms. A pregnant woman. Is that justice?”

The same officer explained that protesting against such cases to senior officers made little difference. “Sometimes we protest but it goes nowhere,” he said.

The CIA-backed RRT and NIS eventually caught up with Kisanya’s husband, Owiti. In May 2013, RRT commandos raided his flat, gunning him and his female companion down. 

While Kenyan police claimed that the pair had violently resisted arrest, four witnesses told Human Rights Watch that the police did not encounter armed resistance. ATPU officers were present on the operation, the human rights group reported, rendering the police unit responsible for the operation and killing of Owiti and his companion.

In another October 2012 RRT-NIS-ATPU raid that killed Omar Faraj in Mombasa, a Kenyan police spokesperson subsequently claimed that two hand grenades and ammunition had been recovered. However, a whistle-blower ATPU officer familiar with the operation told Declassified that the munitions were planted after realising that RRT paramilitaries had murdered Faraj in a case of mistaken identity.

In another case, this time in June 2016, unidentified officers – likely to be from the RRT but backed by ATPU officers – raided a house in Junda, Mombasa county, killing two men police claim were wanted: Salim Hanjary Bedzimba, a local civil servant, and Kibwana Ahmed Abdalla. 

Police subsequently claimed to have recovered three hand grenades at their home. Their families deny the men ever kept weapons, and claim the police planted them.

An FCDO spokesperson declined to comment on Declassified’s findings, citing a policy of not commenting on intelligence matters. In response, Declassified informed the FCDO that none of its findings related to the UK’s intelligence services but to the FCDO itself and the Met Police and, as such, the policy did not apply. The FCDO replied, “we have nothing further to add” and ignored all further emails on the matter.

On the allegations of ATPU torture at the UK-funded headquarters and planting evidence, and whether the Met Police had knowledge of, and had investigated, them, its spokesperson, Laura Godman, said “[We’re] [n]ot prepared to discuss allegations which would not be a matter for the Met Police to investigate.”

The Kenya Police Service did not respond to Declassified’s request for comment. DM

This is the fourth part of an investigation into the US and British secret war in Kenya. Read Part 1, Part 2and Part 3.

Declassified UK is an investigative journalism organisation that covers the UK’s role in the world.

After the latest round of talks in Rome in October, the next stage in the peace process between the South Sudanese government and the South Sudan Opposition Movements Alliance (SSOMA) keeps getting pushed further and further back. As proposed by the mediating Sant’Egidio Community, the talks were to resume in Nairobi in January to make it easier for the various delegations to attend under Covid-19 travel restrictions.

A source familiar with the talks told Kenya Insights on the favoring factors that would’ve made it suitable for Nairobi to host the talks, “Considering the fact that many South Sudanese live in Kenya, they would be involved in the process hence giving it much legitimacy. Secondly, President Uhuru has been so neutral in the crisis to a point he is hosting politicians exiled from South Sudan. This then makes it very easy to reach an everlasting deal in Kenya more than in any other place in Africa.”

He continued, “Kenya stand to get the credits if a peace deal is reached in Nairobi.”

But the Kenyan authorities have still not approved this change of location and it is understood they will not give their decision before the end of February.

Our source fears that the process has been hijacked by middlemen both in Kenya and South Sudan and are hell bent to ensure the talks which were favored to be moved to Nairobi by mediators due to proximity doesn’t happen. “Some politicians here have conspired to rob Kenya of the accolades it stand to add to its image from the success of this talks.” Our source said.

He alleged that there has been spirited effort by the middlemen to ensure the letter sent to the Foreign Affairs Office requesting for the transfer didn’t get to Uhuru’s attention, “the transfer from Rome to Nairobi was to be finalized on 5th Jan but the CS kept dragging without giving clear decisions. The Italian Ambassador later told Santi Egi’dio that in fact the request has never reached to President Uhuru.” He told Kenya Insights.

These planning hiccups are compounded by political complications: during the negotiations, SSOMA split into two factions. On one side is the leader of the Real Sudan People’s Liberation Movement, Pagan Amum Okiech, joined by the head of the South Sudan United Front, Paul Malong Awan, both of whom have agreed to moving the mediation process to Nairobi. One other side is the leader of the National Salvation Front, Thomas Cirillo Swaka, who has categorically refused to travel to Kenya and accuses Nairobi of playing favourites in the conflict.

The Special Envoy on South Sudan Hon. Kalonzo Musyoka paid a courtesy call on Foreign Affairs C.S Amb. Raychelle Omamo. They discussed the status of implementation of the peace agreement in South Sudan. pic.twitter.com/7jbmDOmt4W

— State Department for Foreign Affairs | Kenya (@ForeignOfficeKE) January 7, 2021

Our source goes further to question why Hon. Kalonzo Musyoka who’s the special envoy appointed by the president to negotiate the peace and South Sudan Intelligence Chief Akol Koor didn’t fight hard to see the talks transferred to Nairobi knowing well all the factors would work best for the interests of South Sudan.

Lifting of US sanctions

On account of these opposing views, the mediators are considering moving forward in two stages. This would involve a first meeting in Nairobi – provided that this is accepted by the Kenyan authorities – attended by Amum and Malong’s groups, and then a second in Rome with Cirillo.

The government is in a hurry to move forward on the process. It wants to be able to prove itself to US President Joe Biden‘s new administration, which has been quickly restoring US relations with the new authorities in Khartoum. South Sudanese President Salva Kiir hopes that the US will lift its sanctions on the country but this decision could be conditional to the success of the talks with the SSOMA.

As mentioned earlier, a good number of South Sudan leaders including President Kiir and nationals are hosted in Nairobi and it would only make sense if the talks are held here on a neutral ground with opposing parties both available on one table for a long lasting peace. Postponing the agreements, secluding others by keeping the talks far away in Rome is only going to work on the reverse.

Hon. Kalonzo should seize the opportunity and ensure the talks are transferred to Nairobi and of at all the word has not reached Uhuru then it now should. The claims that some officials have been deliberately frustrating the transfer efforts should also be investigated.

Additional reporting by Africa Intelligence.