Mystery abductions an impediment to the rule of law and human rights

In the recent weeks, Kenya has seen a rise in reports of abductions particularly of young Kenyans which has been characterized by the unlawful detention of citizens by unknown persons suspected to be security personnel.

This has sparked a widespread public outcry in the country by citizens seeking accountability from the government for the abductions. Responding to the outcry, the Inspector General of Police released a contradicting statement refuting any allegations of police involvement in the reported abductions in the country and not setting out the steps being taken by the security agencies.

He said, “For avoidance of doubt, the National Police Service is not involved in any abduction, and there is no police station in the country that is holding the reported abductees.” The statement raises concerns especially on the fact that the Office of the Inspector-General is entrusted with the responsibility to ensure the safety and security of all citizens.

It is important to state that the Constitution, guarantees fundamental rights and freedoms to all citizens, and outlines the standards and procedures under which law enforcement agencies are to operate. These abductions contradict these constitutional guarantees, pose serious risks to the rule of law and undermine citizens’ trust in state institutions.

Article 29 of the Constitution guarantees the right to personal liberty. It states that “every person has the right to freedom and security of the person” which includes the right not to be “deprived of freedom arbitrarily or without just cause.” This right is inviolable and applies to all individuals, regardless of their status or the charges against them.

The Constitution of Kenya 2010 and the National Police Service Act 2011 require that any arrest made by law enforcement must be conducted in a manner that upholds the rights of the arrested individual. Specifically, Article 49 of the Constitution outlines the rights of an arrested person and provides how arrests should be conducted, including a requirement for the suspect to be informed of the reason for their arrest and given access to legal representation.

It further provides that the detained individual must also be brought before a court as soon as reasonably possible and not later than 24 hours after their arrest.

The Constitution through Article 25(a) prohibits any form of torture or cruel, inhuman or degrading treatment or punishment. It makes it clear that the prohibition of torture and inhumane treatment is a non-derogable or absolute right, meaning it cannot be suspended even in times of national emergency.

The right to a fair trial is another critical constitutional protection that is compromised by abductions. Article 50 of the Constitution guarantees every person the right to a fair hearing, which includes the right to be informed of the charges against them, to have adequate time and facilities to prepare a defense, and to be tried in an open and impartial court.

Kenya is a signatory to several international human rights conventions, including the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples Rights. Both instruments obligate the Kenyan government to respect and protect the human rights of all individuals within its jurisdiction, including the right to freedom from arbitrary detention and torture.

Further, the instruments principles marry with the Charter of the United Nations and recognise the inherent dignity and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world.

The current wave of abductions is a blatant violation of the Constitution and the international human rights conventions, which guarantee fundamental rights such as personal liberty, the right to a fair trial, protection from torture, and due process. These unlawful actions undermine public trust in the police and the justice system, and they breach Kenya’s international human rights commitments.