The Judiciary and the Executive is caught up in a tricky legal, diplomatic and security dilemma over two Iranians — described by intelligence to be members of Iran's secretive Quds corps tasked to revenge the killing of the country’s nuclear scientists by Israel.
Kenya is now embroiled in an international drama that involves Israel, US and Iran — and it is not ending soon.
The two men in Kenya’s custody — Ahmad Abolfathi Mohammad and Sayed Mansour Mousavi — were arrested in Mombasa and jailed for 15 years for illegal possession of 15kg of hexogen (RDX), a chemical used in the 2006 Mumbai train bombings, which left 186 people dead.
The Mumbai explosives had been packed into pressure cookers and placed on trains.
A similar chemical was also used in the 2010 Moscow metro attacks where two female suicide bombers detonated explosives in Moscow's subway system, killing 40.
Last month, the powerful commander of Quds Force dared US President Donald Trump to a fight:
“As a soldier,” he said, “it is my duty to respond to your threats... If you wants to use the language of threat ... talk to me, not to the president (Hassan Rouhani).”
Major-general Qasem Soleimani was warning the United States to stop threatening Iran with war.
“We are ready... If you begin the war, we will end the war,” Soleimani warned. “You know that this war will destroy all that you possess.”
To which Trump said: “Never, ever threaten the United States again or you will suffer consequences the likes of which few throughout history have ever suffered before. We are no longer a country that will stand for your demented words of violence and death. Be cautious!”
Kenya is now sharing a slice of this drama. While the Court of Appeal has ordered the release of the two Iranians, the government has appealed and continues to hold them in custody, fearing that they might escape.
CONTEMPT OF COURT
That matter is currently undetermined by the Supreme Court which, four months ago, determined that the Inspector General of Police Joseph Boinett was not in contempt of court for continuing to hold the suspects.
“This court did not order that (the Iranians) be released, but rather, that their rights be not infringed; we note that, indeed, they are not in prison, but in a situation more elevated than that of prisoners,” the Supreme Court said.
On January 26, Supreme Court judges, led by Chief Justice David Maraga, ordered that the two should be held in a manner that is in accordance with the law, pending the application by the Director of Public Prosecutions who wants to have the release quashed.
But the two Iranians later told the Supreme Court that they were still being held in police custody and had lodged contempt proceedings against Mr Boinett.
During their trial, the government chemist had told the court that the chemical found in Mombasa was capable of bringing down Times Tower, the second tallest building in Kenya, and that it “is considered as one of the most powerful military explosives”.
Other Kenyan security sources say the two were plotting to bomb the Israeli embassy, although the issue was not canvased in court.
The security officers who testified during the trial told the court that Ahmad Abolfathi Mohammad took them to the spot where the bomb-making material was buried.
The case has gained diplomatic interest and the Iranian embassy has been tracking its progress ever since the two were arrested.
Again, whichever way the case goes, Kenya is caught up between two traditional enemies — Iran and Israel.
How the case will affect trade relations remains to be seen but it is of significant interest in the diplomatic circles.
On one hand, Kenya had been targeting Iran as one of the major buyers of its tea after the lifting of the sanctions in 2016. But the resumption of sanctions now complicates the issue.
Again, Kenya has built strong diplomatic and intelligence relations with Israel and when he was being sworn in for the second term, President Uhuru Kenyatta invited Israeli Prime Minister Benjamin Netanyahu as the key speaker.
Actually, the arrests of the two Iranians in June 2012 came four months after two Israeli diplomatic missions in New Delhi and Tbilisi were targeted by terrorists.
Mr Netanyahu blamed Iran and its proxy Hezbollah for the attacks which occurred in February 2012, and described Iran as “the world's greatest exporter of terror". Both Iran and Hezbollah have historically considered Israel their arch-enemy.
A senior ranking Intelligence source told the Sunday Nation that an Iranian operative had tried to recruit two more Kenyans to become its agents and that they had plotted to have the Iranian prisoners escape.
Shortly after the arrest of the two Iranians, investigators in Nairobi told the British Independent newspaper that the Iranian-imported chemicals “could have been broken up into smaller batches and then used in a series of attacks that would not necessarily have been blamed on Iran”.
While ordering their release on January 26, Appellate Judges Paul Kihara Kariuki (now Attorney General), Kathurima M’inoti and Agnes Murgor held that the circumstantial evidence relied on by both the High Court and Magistrate Court was weak and that the two Iranians were not the only people who could have placed the bomb-making material, RDX, at the unfenced Mombasa Golf Course where it was found.
But the Director of Public Prosecutions has now gone to the Supreme Court seeking to have the duo remain in custody, pending its appeal.
The Supreme Court also ordered the two to remain within its jurisdiction and asked the DPP to ensure their rights are not infringed until their appeal is heard and determined.
The arrest of the two saw Kenya enmeshed between the political and security interests of two countries at war with each other.
A month before the two were arrested, Kenya had signed a memorandum of understanding with Iran, in May 2012, to import 80,000 tonnes of crude oil, but cancelled the deal after only two months to avert US financial sanctions against countries that buy oil from Iran.
It is now known that in Tehran, there was panic after their arrest and the Iranian government in December 2016 sent two lawyers — Sayed Nasrollah Ebrahimi and Abdolhosein Gholi — to follow up on the matter.
The two arrived in Nairobi only to be arrested by anti-terrorism police after they were caught filming the Israeli embassy in Milimani.
The prosecution led by senior state counsel Duncan Ondimu told the court the two were arrested in a car belonging to the Iranian Embassy and next to the Israeli Embassy on Bishop Road.
He told the court though the passports of the two Iranians bore entry stamps, their visit was not reflected in Immigration systems. Why, nobody seems to know.
Shortly after their arrest, Iran’s Foreign Affairs ministry managed to secure their freedom after Foreign Minister Mohammad Javad Zarif sent his deputy Hassan Qashqavi to Kenya “to initiate negotiations… and remove misunderstanding”.
The AFP reported that the Kenyan ambassador to Iran was summoned to the Tehran Foreign ministry and told the two were arrested following a “hostile intervention of a third party” — which in that case meant the state of Israel.
But the matter is deeper than that. Tehran claims Mossad, the secret intelligence service of Israel, was behind the recent wave of killings of its nuclear scientists and had vowed to hit back.
Though Israel has never admitted carrying out the car-bomb attacks, the country’s Foreign minister Moshe Ya'alon in 2015 told the German-language Der Spiegel that he bore no responsibility "for the life expectancy of Iranian scientists".
At least four scientists were killed between 2010 and 2012 in what Tehran said was a scheme to sabotage its nuclear energy programme.
Kenya now finds itself entangled between the battles between Tel Aviv and Tehran as the case of the two Iranians comes to a close.
Mr Mohammad and Mr Mousavi were arrested in June 2012, five months after the assassination of 32-year-old Mostafa Ahmadi Roshan, who held the position of a deputy director for commercial affairs at Natanz nuclear plant in central Iran.
His attackers, riding motorcycles, are reported to have attached a magnetic bomb to his Peugeot 405.
Western analysts have told various western media outlets that the assassinations are part of a covert war aimed at disrupting Iran's nuclear programme.
In turn, Iran has blamed Israel, the US and Britain for the attacks on its scientists. Whether the two Iranians are part of this large game plan will be known soon.
Iran's former vice president Mohammad Reza Rahimi, in quotes carried by the state Irna news agency, said "Iran's enemies should know they cannot prevent Iran's progress by carrying out such terrorist acts."
Mr Mohammed and Mr Mousavi had arrived at the Jomo Kenyatta International Airport on June 12, 2012 on tourist/holiday visas valid for two weeks.
They then took a domestic flight to Royal Castle Hotel, Mombasa, where they had been booked by Tehran’s Golfers Travel Agency for a period of 10 days.
Court records indicate that they checked out on June 16 and proceeded to Laico Regency, Nairobi, where they checked out on June 19.
They were arrested on their way to the airport by officers from the Anti-Terrorism Police Unit.
The substance of the prosecution case against the appellants was that while in Mombasa, they visited the local golf course twice and unlawfully hid therein the RDX, which was recovered in a bag that was buried in the ground.
The two have maintained they are innocent and their lawyer, Ahmednassir Abdullahi, told the Court of Appeal, and it agreed, that the link was “purely circumstantial because there was no direct evidence of their being in possession or armed with the RDX or placing it in the golf course”.
The Supreme Court’s ruling will come at a time when Israel has warned Iran and its "proxies" not to "put a noose of terror around our neck".
Tensions between Israel and Iran has been building of late, with Israel fearing that Tehran is trying to establish a permanent presence in Syria as part of an effort to become a greater regional power in the Middle East.
The Trump administration re-imposed sanctions on Iran this month after withdrawing from the 2015 international nuclear deal with Iran.
Trump, who will be meeting President Kenyatta today at White House, has told off Iran’s Supreme Leader Ali Khamenei after he rejected Trump's offer of unconditional talks on a new nuclear deal.
In an interview with Reuters, President Trump said: "If they want to meet, that's fine, and if they don't want to meet, I couldn't care less."
With Kenya caught between the fighting bulls, the case in Nairobi is putting the country in an awkward situation.
[email protected]; @Johnkamau