Why we should criminalise enforced disappearances

Exactly four years ago today, Willie Kimani, a lawyer with International Justice Mission (IJM), his client Josephat Mwenda and driver Joseph Muiruri were abducted after leaving a court.

Their bodies were found a week later at a river, stashed in gunny bags and with apparent marks of torture. Five people — four police officers and a civilian who later confessed to the heinous crimes — are facing charges for the killing of the trio.

Aggrey Juma, the Policy and Advocacy Manager at IJM, recounts the horror of June 23, 2016, the night the three men were murdered. He speaks about issues of enforced disappearances, extrajudicial killings and other systemic human rights violations.

In June 2016, an incident took place that will forever shape my perception of the justification and need for police accountability and reform in Kenya.

On a chilly Thursday morning, on June 23, 2016, my colleague and friend Willie Kimani, taxi driver Joseph Muiruri and client Josephat Mwenda, went missing as they left the Mavoko Law Courts. Mwenda was facing trumped-up charges levelled against him by a senior police officer, who had allegedly shot him in the hand, and IJM was representing him in court.

After an unsuccessful whole night’s search retracing the steps of our colleagues, from Mlolongo to Syokimau, police station visits and even the AP camp, the next six days were a string of no-stones-unturned search.

The initial thinking was that they had been arrested by police officers. For this reason, and confident in the protections of the constitutional 24-hour rule to present arrested persons in court, the morning of Friday 24th June found me at the Mavoko Law Courts.

I was armed with food and cash bail, awaiting their arraignment on some trumped-up charge (We had come to know that this was the norm after representing in court so many young men from poor areas).

We exhausted the cause lists in both courts at Mavoko, including civil cases, and perused the lists of all new suspects slated to answer to charges that morning to no avail. For good measure, we even looked at each suspect in custody to confirm just in case they used false names or their names were changed to mislead legal representation.

Convinced they had not been arraigned that morning and intent on securing their release, we visited most detention and potential detention facilities in the general radius of Mavoko. They were nowhere to be seen. No one, it was alleged, had heard of them.

Over the next five days, we were involved in an elaborate and coordinated search operation that spanned Makindu to the south and Nakuru to the north. We made phone calls, visited police stations and posts, government offices and hospitals.

Yet the one experience I will live to tell is the visits we made to different morgues, public and private, in search of the three. I remember viewing so many claimed and unclaimed deceased persons that my own body became numb.

Habouring the optimistic belief that our people were still alive, we insisted on seeing each corpse just in case. Until then, I had not appreciated just how many human beings lie in death, awaiting a loved one or anyone to claim them for burial. I remember telling myself that when we finally find Willie, I would tell him about this horrific experience.

That was never to be. He and his companions were nowhere to be found. We even demonstrated twice within that week.

After one full week of agonising search, their tortured bodies were discovered by villagers on the opposite side of Nairobi city, dumped in River Athi, Ol Donyo Sabuk, 100km away from the court they had attended to seek justice a week earlier.

We were crushed by the news of their brutal deaths, but even today, we are thankful that we finally found them.

'MACHOZI YA JANA'

The consequent murder case, in which four police officers and one civilian are charged with their murder, remains sub judice before the High Court, and so shall not be discussed herein.

However, the murder triggered a concerted effort to get the stories of more victims. In 2017, together with partners in the civil society, government and community-based partners, we embarked on a fact-finding mission through community dialogues, named 'Machozi Ya Jana' (named after the song Juliani composed to honour Willie, Joseph and Josephat).

It became apparent that our experience in the one week of Willie, Josephat and Joseph's disappearance (between the abduction and discovery) was common to many people in Nairobi slums.

Many people living in poverty have had their kin arrested by police officers and disappeared. Some, like us, eventually find their loved ones, in most cases deceased and marked as unknown in some government morgue. Eventually, the government buries unclaimed bodies in unmarked mass graves.

Yet for others, the whereabouts of their loved ones remain unknown or denied indefinitely by those responsible. Unlike our well-resourced, coordinated and supported search operation in 2016, these families are drained to the bone financially as they go on a lonely, frustrating and unending futile search for persons. All while the bodies are probably decomposed beyond recognition in a desolate location.

I came to learn later that many families of the disappeared never experience the privilege of closure. They keep looking at the door, hoping their loved one will return one day. Some keep visiting morgues at the news of recovered bodies for identification in vain.

In the last few years, it has been widely reported that certain areas around the country are choice dumping grounds for victims of extrajudicial executions intended for disappearance.

Ol Donyo Sabuk is one such place. While the Mavoko 3 case introduced the little-known town to the country, residents bear multiple heart-breaking stories that indicate how notorious the area has always been.

Topographically, Ol Donyo Sabuk is located on the outskirts of the National Park by the same name. The waters of Athi River flow in massive torrents along the Kiambu-Machakos border from the southeast side of Nairobi, having consolidated its many Nairobi River tributaries into a massive natural feature.

One kilometre from the notorious one-lane Ol Donyo Sabuk Bridge, where most victims are dumped, the waters crash down the famous Fourteen Falls before snaking their way around the Ol Donyo Sabuk National Park.

Bodies of victims that go through this journey have little chances of surviving the wild animals in the general vicinity of the national park. The whereabouts of most become unknown even by those who are responsible for their disappearances. During the rainy season some bodies are carried hundreds of kilometres away by the raging waters. Most of them are never seen again.

NO BODY, NO TRIAL?

One such case is that of Daniel Nyamohanga.

Between January 12 and 13, 2017, Daniel was arrested by known police officers in Kehancha town, Migori county. He was held in police custody at the local Kehancha police station January 17, 2017, when he was last seen.

In the habeas corpus (requiring a person under arrest to be brought before a judge to secure their release) court proceedings that followed, the OCS testified that Daniel Baru was released on the morning of January 17.

This was controverted by Daniel’s wife Rebecca Mwita, who last saw her husband detained at the station on the same day in the afternoon after he had allegedly been released. She had taken him packed lunch.

In its final determination, the High Court established that the OCS Kehancha police station had Daniel in his custody and issued a writ of habeas corpus for his production dead or alive.

Despite numerous summons thereafter, Daniel was never produced. His whereabouts remain unknown today — three years since his arrest. The officers responsible for his arrest and detention in a government facility and disappearance are still in service, despite having been found culpable by a superior court.

In its final orders, the court directed the Office of the Director of Public Prosecutions to institute murder charges against the officers involved. However, the evidence required to find the officers guilty for murder beyond reasonable doubt is a challenge.

The fact of death is uncertain: Is Daniel dead or alive? If so, what is the cause of death? If he is dead, what or who killed him? Most importantly, it is an uphill task to obtain conviction for murder without a body.

It is, therefore, apparent that there is no effective legal remedy available to hold the suspects accountable for forcibly disappearing Daniel or any other victims whose whereabouts remain unknown or denied.

In each of these cases we have documented, the loved ones have resigned to fate, given up on the hope of accountability, now only asking to be given the bodies for the closure that would come from burying their dead.

LEGAL LACUNA

Amnesty International has referred to this kind of disappearance as a continuing crime, as long as the whereabouts of the disappeared remain unknown or denied.

Under the Rome Statute by its nature, enforced disappearance occurs when the state deprives a person of their liberty, refuses to acknowledge the deprivation of liberty or conceals the fate or whereabouts of the disappeared person, with the intention to remove the victim from the protection of the law for a prolonged period of time.

It is a crime so grave it is recognised as a crime against humanity when it is widespread. Despite this, it does not exist in the criminal statutes or laws of Kenya as an offence for which a perpetrator can be prosecuted for an isolated case.

Under our constitution, of the four rights that cannot be limited, one is the right to an order of habeas corpus. Yet, as we have learnt in the Daniel Nyamohanga case and others, there is no sanction for those who violate this apparently absolute right.

The High Court, in Petition no. 383 of 2o17, agreed that issues of enforced disappearances and extrajudicial killings are ‘very emotional and disturbing’ and should, therefore, be considered and dealt with in pursuance of the provisions of the law.

A petition had referred to several cases of enforced disappearances, including those of Willie Kimani, Geoffrey Oriaro and Jared Ratemo. It had sought a declaration to the effect that enforced disappearance and extrajudicial killings in Kenya are widespread and, thus, require an investigation by a judicial Commission of Inquiry. This was with a view to appreciating the actual gravity of the problem and helping to achieve justice those whose loved ones remain disappeared.

The petition sought several other orders. Among them was an the order that the Attorney General advise the President and the said Commission of Inquiry to investigate and address specific and systemic factors contributing to the high rate of disappearance and extrajudicial killings in Kenya. This with a view to bringing to justice all those suspected of criminal responsibility for the crimes.

I still miss my friend, Willie. His death and those of many others in the hands of those who should protect them was heartbreaking. I cannot imagine the pain that Daniel’s family is undergoing daily as they await justice for his enforced disappearance. What does Rebecca tell her children, three years on?

This fourth anniversary of the disappearance that culminated in the murder of Wille, Joseph and Josephat is a timely moment for us as a country to reflect on policy reform needed to ensure accountability for perpetrators of enforced disappearance. A good start would be the ratification of the International Convention for the Protection of All Persons from Enforced Disappearance.

Finally, for the National Assembly, it is an opportune time to pass legal provisions that expressly criminalise and prescribe sentences for the crime of enforced disappearance.

The need for a judicial Commission of Inquiry remains an open request to the President.

Edited by T Jalio