Kenya’s Unanswered Questions About Enforced Disappearances

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Kenya is yet to ratify the UN's International Convention for the Protection of All Persons from Enforced Disappearance. Credit: IPSby Robert Kibet (nairobi)Monday, September 02, 2024Inter Press Service

NAIROBI, Sep 02 (IPS) - As the world marked International Day of the Disappeared, Kenya grapples with a shadowy and persistent crisis—enforced disappearances. This harrowing violation of human rights has left countless families in anguish, searching for their loved ones while battling a wall of government denial and indifference.

Enforced disappearance is addressed in international law, specifically the UN's International Convention for the Protection of All Persons from Enforced Disappearance. However, Kenya has yet to ratify this crucial convention, leaving a legal void that exacerbates the problem.

According to Kevin Mwangi, a program officer with the Independent Medico-Legal Unit (IMLU), the Kenyan government lacks a definition within national legislation, meaning Kenyans and civil society rely on UN international guidelines to hold authorities accountable.

One haunting instance occurred in 2021 when Kenya's Yala River, once a peaceful and secluded area, became a site of horror. Over a few weeks, 26 bodies were discovered within a 50-meter stretch. The bodies, many male, were found far from where they had originally gone missing, most of whom were facing criminal charges.

Human rights activists were initially involved in the investigations, but they were soon pushed out by the police. Boniface Ogutu, one of the activists working on the case, told the press, "We found bodies with their hands tied with ropes. Some were wrapped in polythene bags. Many of the bodies showed signs of severe trauma, including scars similar to acid burns, and most appeared to have been tortured before being dumped into the water."

Ogutu further reported that villagers had observed a black Subaru, often associated with security forces, speeding to the riverbank with four occupants who would hurriedly dispose of the bodies before driving away.

In the early 2010s, the Kenyan government granted sweeping powers to security agencies to combat terrorism, leading to a surge in kidnappings, torture, and extrajudicial killings, even for petty crimes.

Hit squads began targeting suspects, and during election seasons, when rallies and protests were frequent, reports of disappearances and killings skyrocketed. In 2021 alone, rights groups documented at least 170 extrajudicial killings and numerous disappearances attributed to the police.

One of the victims found in the Yala River was Philemon Chepkwony, a resident of Kipkelion in Kenya's Rift Valley. He had been charged with car theft and was out on bail awaiting trial when he disappeared in December 2021.

"We are witnessing a disturbing trend of young people like Philemon disappearing without a trace, only to be found dead in rivers," lamented Hillary Kosgey, the legislator for Kipkelion West, at Chepkwony's burial. "No one has the right to take away these lives. If they are jailed, they can reform."

In Kenya's coastal counties like Mombasa, where much of the country's Muslim population resides, young men have been recruited by terrorist groups, prompting the police to carry out frequent raids and profiling of these communities.

The recent discovery of mutilated bodies wrapped in polythene bags at an open quarry in Mukuru Kwa Njenga, one of Kenya's slum residences, sparked public anger amid weeks of anti-government protests over a since-scrapped finance bill.

After assuming power, President William Ruto repeatedly stated in public rallies, there would be no cases of enforced disappearance or extrajudicial killings.

Mwangi outlines the chilling components of enforced disappearance: "It begins with the deprivation of the right to liberty, often without the victim's consent or knowledge. This act is carried out by government officials, who then conceal or deny any knowledge of the person's whereabouts."

"Enforced disappearance is not a transient issue; it can span years, even decades. It is a permanent state of limbo for the victims and their families until the person is found," Mwangi adds, stressing the long-lasting impact of such crimes.

The 2023 Missing Voices report indicated a slight reduction in extrajudicial killings between 2022 and 2023, from 130 to 118, and a decrease in enforced disappearances from 22 to 10.

"Men continue to be the primary victims, accounting for 94% of extrajudicial killings, with a notable concentration among men aged 19-35," the report states.

In Africa, enforced disappearances, particularly in politically volatile regions, often occur within the context of state repression. The Democratic Republic of Congo (DRC) is a stark example, where a massacre led to the African Court on Human and Peoples' Rights holding the government accountable for acts of enforced disappearance.

"For enforced disappearance to occur, government officials must be involved, and the state must have full knowledge of the whereabouts of the missing individuals," Mwangi clarifies.

In Kenya, the situation is dire. Mwangi recalls a case handled by IMLU where two individuals, after being released from court, were allegedly abducted by security officials. "To this day, the government denies knowing their whereabouts," he laments, highlighting the pervasive culture of impunity.

The infamous River Yala incident serves as a grim reminder of the scale of the problem. Mwangi points to the systemic failure of the judiciary, where a revolving door of bail releases perpetuates the cycle of crime and violence.

"There is a growing narrative that the courts are not doing their work, leading police to take matters into their own hands," he notes.

Despite the gravity of the situation, Kenya lacks specific legislation on enforced disappearance. The country has not ratified the international convention, leaving victims and their families without a clear path to justice.

"One life is one too many," Mwangi says, referencing the 32 cases documented by the Missing Voices coalition. "We are currently developing guidelines to ensure that each African country has a policy on enforced disappearance. The numbers may be higher than reported, but only a few cases come to light."

After Kenya's 2007-2008 general elections, there were significant human rights violations, leading to the formation of the Ransley Taskforce to address police reforms. The task force made strong recommendations, including the need to separate these entities, as at the time, the police were the perpetrators, prosecutors, and investigators. This flawed system prevented justice from being realized and emphasized the need for mechanisms to ensure justice and accountability.

In 2017, Kenya enacted the Coroner Service Act, which provided a framework for forensic documentation at crime scenes. However, implementation has been problematic. For instance, in a 2018 case in Eldoret, a police officer handled a murder weapon with bare hands, compromising the evidence.

Currently, forensic evidence collection in Kenya is substandard, failing to meet the requirements necessary to hold up in court. Although the Coroner Law was assented to by the President in 2017, it has not been operationalized, largely due to a lack of political will.

"Kenya has a history of passing laws that are then shelved. When questioned, the government claims that the delay is due to funding issues, stating that funds need to be allocated to create the Coroner's office," Mwangi says.

Moreover, the Independent Policing Oversight Authority (IPOA) lacks its forensic lab and must rely on the Directorate of Criminal Investigations (DCI), which is part of the security forces. There is a pressing need for an independent forensic lab under IPOA to carry out forensic audits.

Despite these challenges, IPOA has succeeded in securing eight convictions in extrajudicial cases over the past 11 years. This entity was established to ensure accountability in such cases.

Roselyn Odede, chairperson of the Kenya National Commission on Human Rights, reported in 2023 that the commission received reports of 22 extrajudicial killings and nine cases of enforced disappearance between January 2022 and June 2023.

Peninah Koome, chairperson of Kenyan Champions for Justice, a community-based organization, recounted her harrowing experience. Her husband was arrested, brutally beaten by the officer in charge at Ruaraka police station, and later died at Kenyatta National Hospital.

"I had no money to pay for lawyers, but IPOA and International Justice Mission (IJM) stepped in. However, as a witness to my husband's case, I became a target. They came after me the day after I testified. IPOA and IJM had to provide protection. After three years, we finally got justice."

Houghton Irungu, the Executive Director at Amnesty International Kenya, expressed concern about the return of the same oppressive culture despite the Kenya Kwanza administration's promise under Ruto to end enforced disappearances.

"They disbanded the Special Service Unit (SSU), revamped the National Police Service, changed the Director of Criminal Investigations, and restructured the Anti-Terrorism Police Unit (ATPU). We hoped this would lead to respect for the rule of law, but the old habits seem to be resurfacing," said Irungu.

Irungu emphasizes the importance of timely identification of missing persons and the need for human rights organizations and witness protection agencies to act quickly to protect witnesses and their families.

"As a country, we still haven't ratified the International Convention for the Protection of All Persons from Enforced Disappearance. It's been five years since Parliament passed the Coroner Service Act, yet we still lack independent coroner forensic capacity to prosecute these cases. We don't even have a national database on missing persons," laments Irungu.

As the international community commemorates the victims of enforced disappearances, the call for justice in Kenya grows louder. The government's failure to address this issue not only violates human rights but also erodes public trust in state institutions. For the families of the missing, the search for truth and accountability.