It’s time to set up judicial inquiry into extra-judicial killings, disappearances

Six years ago, the United Nations General Assembly voted to designate August 30 as the International Day of Victims of Enforced Disappearance, to draw attention to the global problem of enforced disappearances. PHOTO: COURTESY

Six years ago, the United Nations General Assembly voted to designate August 30 as the International Day of Victims of Enforced Disappearance, to draw attention to the global problem of enforced disappearances.

The discussions drew little relevance in Kenya. This was for two reasons. Three days earlier, Kenyans had voted overwhelmingly for a new Constitution clearly safeguarding a raft of human rights.

Second, the country was happily turning its back on the dark days when security officers in different formations abducted, tortured and even killed opponents with impunity.

Most Kenyans would have believed that the day focused on countries suffocating from the tight grip of military dictatorships.

This belief soon turned fallacious. Cases of enforced disappearances are turning out to be the norm other than the exception.

On August 30, 2016, Kenya joined the international community in observing the day. This is because nearly every corner of the country is reeling with anguished men and women - parents, partners, spouses, children, workmates, schoolmates or friends -desperately without respite seeking information on their loved ones who disappeared. They too are now victims.

During the event, the Independent Medical-Legal Unit (IMLU) reported that in 2016 alone, 100 incidents where individuals had gone missing while in the hands of security agencies were recorded.

Since 2009, they have documented more than 300 enforced disappearances. Journalist Francis Nyaruri would be one of the first in this long list of the disappeared.

Whereas in the late 2000s, most of the killings were attributed to the so-called Mungiki crackdown by the police, the latest wave has been under the guise of dealing with people suspected to be members of the Islamist Group, Al-Shabaab.

These staggering statistics lend credence to allegations that the abduction and killing of lawyer Willie Kimani, his client, Josphat Mwenda and their driver Joseph Muiruri was not an isolated incident but a systemic phenomenon.

In fact, during the weekend after their abduction, three bodies thought to be them were recovered in Mai Mahiu. Incidentally, they had been similarly tortured and killed.

In any civilised society, every person accused of a crime should have their guilt or innocence determined by a fair and effective legal process. But the right to a fair trial is not just about protecting suspects and defendants.

It also makes societies safer and stronger. Without fair trials, trust in justice and in government collapses.

The Constitution vests the Judiciary with the responsibility to decide on the guilt or innocence of accused persons. However, the Judiciary relies on the police to arrest suspects and conduct investigations, and the Director of Public Prosecutions to prosecute for a just verdict to be reached.

The State, through the Kenya Prisons Service on the other hand is charged with rehabilitating those who have gone through the due process and been found guilty.

 

Any failure by any of the four major actors collapses the criminal justice system and breeds impunity because one institution cannot function without the other.

If one is compromised, then the system collapses. In Kenya, one or all of the actors have, for one reason or another, failed in their mandate. Guilt and punishment is therefore determined by individuals with overwhelming power, often police, with a mentality based on whatever most or some people feel is right at the time.

The lack of accountability, corruption and impunity in the system has led to widespread extra-judicial executions.

Terrorism and robbery have made Kenyans silent accomplices to these murders because, in the general publics’ minds, executions are the only way to deal with terrorists, robbers and murderers.

It is no wonder that in September, 2014, residents of Githurai went to the streets to demand the release of a police officer who had been arrested in connection with the murder of siblings.

Residents insisted that the officer ensure safety of their homes safer through his actions.

A closer look at the ongoing police vetting process being conducted by the National Police Service Commission has revealed large corruption cartels that seem to move up from the junior levels.

Officers have failed to explain how they have accumulated millions of shillings yet they are on modest salaries.

It is, however, curious that none of those who have been found unfit to hold office have been recommended for prosecution yet it is clear that they were compromised. It is this lack of accountability by individuals in certain professions or of a certain class that bastardises the entire system.

One of the reasons for the push for a new Constitution was to transform the then police force into a police service.

Various reports, including the Waki Report, the Justice Phillip Ransley Report on police reform and the 2009 Report of the Special Rapporteur on Extra-judicial, summary or arbitrary executions, Philip Alston identified the Kenya Police penchant for extra-judicial executions as a matter of grave concern.

During Prof Alston’s visit, human rights lawyer Oscar Kingara and his assistant, Paul Oulu were fatally shot near University of Nairobi. To deal with this menace, there is dire need to set up a judicial inquiry into extra-judicial executions and enforced disappearances.

The families must have the right to truth. Lack of timely action, investigation and responsiveness render the Independent Police Oversight Authority and the Internal Affairs unit ineffective even though they may be investigating some cases. Continued frequency, barbarity and non-accountability of the enforced disappearances cannot be left to go on. The scourge must be stopped now.