This year is proving to be a watershed on enforced disappearances.
Between January and August 2021, HAKI Africa has documented at least 26 cases of enforced disappearances from different parts of the country. The majority of these cases have been reported at the Coast region, where security officers are even taking away people in broad daylight. They don’t care who is watching or recording their torturous actions.
So open has the practice began that senior government officials now own up to breaking the law and holding individuals in communicado, denying them their constitutional and legal rights.
On August 30, the world marked international day of the victims of enforced disappearances. The UN defines enforced disappearances as “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the state or by persons or groups of persons acting with the authorization, support or acquiescence of the state, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law”.
In Kenya, the day was marked in Mombasa with various grassroots human rights organising a procession calling to an end of the practice.
Many cases of outright impunity have been presented as case studies of enforced disappearances. The latest case is that of Abdulhakim Saggar.
Authorities claim Abdulhakim has links to terror activities. However, the manner in which the police have handled the case shows open violation of the law.
To begin with, the manner of his arrest leaves a lot to be desired. Abdulhakim was forced to lie down on the road, stepped on as he shouted and screamed, complaining of being hurt. From the point of arrest to date, neither his family nor his lawyer has been allowed access to speak to him or know his fate. They are in the dark, running from one courtroom to another hoping he will be presented.
The actions surrounding this arrest show how the security authorities have violated the Constitution and the laws of the land. In his arrest, the excessive use of force and embarrassing scenes go against Article 28 of the Constitution, which states: “… every person has inherent dignity and the right to have that dignity respected and protected”.
Denying access to him by his lawyer, family or others who could assist him is contrary to Article 49 (1) (c), which provides: “ … an arrested person has the right to communicate with an advocate and other persons whose assistance is necessary.”
And since his arrest more than two weeks ago, Abdulhakim has also not been presented in a court of law. This is against Article 49 (1) (f), which provides that “an arrested person has the right to be brought to court as soon as reasonably possible, but not later than twenty-four hours after being arrested.”
In its efforts to compel the state to produce Abdulhakim, the family has gone to court through lawyer Mbugua Muriithi for an order of habeas corpus. This is to demand that Abdulhakim be presented before the court dead or alive. While the matter is still before court, it remains to be seen how the security agencies will respond to the order, having already confirmed to have arrested Abdulhakim.
What is important for security officers to remember is that the use of excessive force and extra-legal means to fight crime only widens the gap between them and communities.
It makes the people fear the police and consider them as violators of their rights.
When police operate within the confines of the law and respect human rights, they are able to win over communities, including families of suspects.
In the war against crime, particularly terrorism, security officers need communities to share information, give evidence and build resilience. This cannot happen in an environment where the people feel aggrieved or where rights are trampled on with impunity by the police.
