- One high-profile deliberation on enforced disappearances took place under the auspices of the Senate Standing Committee on Justice, Legal Affairs and Human Rights.
- In an attempt to hold the officers accountable, the court directed the Office of the DPP to charge the officers with murder.
The Office of the Director of Public Prosecutions recently released a press statement on the case of the enforced disappearance of Mohamed Zaid Sami Kidwai, Zulfikar Ahmad Khan, and their driver Nicodemus Mwania Mwange.
In the statement, DPP Renson Mulele listed a myriad of charges to be preferred against the 15 former law enforcement officers.
While the first line of the statement by the DPP accurately captured the crime in question as enforced disappearance, none of the charges listed on the second page of the statement explicitly mentioned enforced disappearance.
This was not by mistake – the office of the DPP has in this case come to terms with the reality that enforced disappearance while a crime of grave proportions, and recognised internationally, is not a crime in Kenya when committed in a manner that is not widespread – which would make it a crime against humanity under the provisions of the Rome Statute – as domesticated by the International Crimes Act of 2005 in Kenya.
Over the years, the Police Reform Working Group, the Social Justice Centers Working Group, the Missing Voices Coalition, the Kenya National Commission of Human Rights, and the Independent Policing Oversight Authority, among others have called on the government to criminalise enforced disappearances to no avail.
One high-profile deliberation on enforced disappearances took place under the auspices of the Senate Standing Committee on Justice, Legal Affairs and Human Rights.
In its report titled Report on Inquiry into extrajudicial executions and Enforced Disappearances in Kenya, the committee recommended that the Attorney General initiate the process of ratifying the International Convention for the Protection of All Persons from Enforced Disappearance in accordance with Section 7 of the Treaty Making and Ratification Act.
The follow-up actions of the Standing Committee were thereafter affected by the COVID-19 pandemic.
Post-COVID-19, the implementation of the report was further affected by the 2022 electioneering period and transition into the 13th Parliament.
Civil society actors have equally held advocacy activities aimed at attracting attention to the need for criminalisation of enforced disappearance in Kenya.
On the 20th of June, International Justice Mission Kenya in partnership with ICJ Kenya held a webinar on this very issue.
In the resolutions that followed deliberations by among others the then DPP Noordin Haji, Li Fung, UNODC, Wamaitha Kimani of IJM and, a representative from the AG office, the meeting resolved to pursue criminalisation of enforced disappearances in Kenya.
To date, the Missing Voices Coalition Website has documented an aggregate of 109 cases of enforced disappearances from 2019 in addition to annual campaigns to criminalise enforced disappearance in Kenya on the UN International Day of the Victims of Enforced Disappearances on August 30th.
In each of the documented cases, the whereabouts of the victims remain unknown.
Other disappearance cases of a similar nature do not enjoy this level of actual or perceived goodwill. The most successful ones have ended with the issuance of an OB number for a missing person’s report – not for an enforced disappearance.
They have not seen the agility of the Directorate of Criminal Investigations or the prosecutorial creativity employed by ODPP in charging enforced disappearances using penal provisions on inter alia abduction, conspiracy, and torture.
The judiciary has also previously faced a similar challenge in the now infamous Habeas Corpus case of Daniel Baru Nyamohanga in Kehancha.
Justice Anthony Mrima held that six known police officers were responsible for the disappearance of Nyamohanga.
In an attempt to hold the officers accountable, the court directed the Office of the DPP to charge the officers with murder.
The charge is yet to be preferred – and in the event that these officers are charged with murder, the prosecution will struggle with proof of both the fact of death and cause of death which may render the case futile.
By the nature of the crime of enforced disappearance, individuals that are disappeared without a trace have effectively been taken outside the protection of the law.
As long as their whereabouts remain unknown – Amnesty International has stated that such disappearances are continuing crimes. Yet the current Kenyan law in its totality and progressiveness is incapable of accountability for perpetrators, or justice for families.
By criminalising enforced disappearances, we may not resolve the whereabouts of past disappearance cases. But we will ensure deterrence for would-be perpetrators and accountability for those accused of enforced disappearance.
Lastly, we must admit as a country that we have failed the many families whose loved ones have disappeared.
Equally, we have failed the criminal justice system actors – investigators, prosecutors, and judicial officers by our failure to avail the laws that allow them to effectively hold accountable those accused of enforced disappearance.
That is why all Kenyans must support a petition by the Missing Voices coalition that aims to criminalise enforced disappearance in Kenya.
Aggrey Juma is a Senior Manager at International Justice Mission Kenya