Why Kenya must criminalise enforced disappearance in law

Amnesty International Executive Director Irungu Houghton (centre) speaks during a past presser against harassment and intimidation of investors. [Denish Ochieng, Standard]

Appearing before the 10-member National Dialogue Committee this week, police reform predictably took centre stage.

Overlooked and now in need of their legislative attention are the legal loopholes that allow state officers to forcibly disappear suspects or persons in conflict with the law.

As Zulfiqar Ahmad Khan and Mohamed Zaid Kidwai flew to Kenya they probably had no sense of the darkness that would befall them and their Kenyan taxi driver Nicodemus Mwania. While India has over 8,000 enforced disappearances, most have occurred in regions facing insurgency or armed conflict. Kenya was experiencing neither of these at the time the two Indians arrived to support the 2022 Kenya Kwanza election campaign.

Fourteen months later, their families, Kenyans and Indians are no closer to knowing what happened to these three men except that, members of the now-disbanded Special Service Unit reportedly stopped their car, arrested the men and then they disappeared. Under the UN International Convention for the Protection of All Persons from Enforced Disappearances, enforced disappearances are defined as the unlawful abduction, detention, and disappearance of individuals by state agents.

While enforced disappearances went viral in fascist and communist Europe in 1940s, Latin America (1960s) and Sri Lanka, Pakistan, and India (1970s), four centuries of slavery and colonialism were fertile grounds for this practise in Africa.

In 2021, the UN Working Group on Enforced or Involuntary Disappearances documented 46,490 cases across the world. Africa contributed 10 per cent of these figures led by Algeria (3,253), Egypt, Burundi, Sudan, Morocco, and Ethiopia.

The pattern is similar regardless of which country. State agents abduct and hold people in clandestine prisons. They subject them to torture, execute them without trial and then destroy or hide their bodies to eliminate any material evidence.

Enforced disappearances are multiple human rights violations. They simultaneously threaten our right to liberty, fair trial, humane treatment and life. By removing us from the protection of the rule of law, state agents can proceed to act unlawfully. The absence of legal consequences and culture of impunity are the biggest drivers in Kenya and the world.

Shockingly, no single person has ever been held criminally accountable and convicted for an enforced disappearance in Kenya. The presence of a victim's body has been necessary in each of the rising number of convictions of police officers for extra-judicial killings.

Concerned by this, 4,269 Kenyans have signed the Missing Voices Alliance petition to criminalise enforced disappearances. According to the Alliance, Kenya has 153 instances of unsolved enforced disappearances.

Although Kenya has signed the International Convention for the Protection of All Persons from Enforced Disappearances, it is yet to ratify it. Ratification is an important step. It would criminalise enforced disappearances and require the government to prevent future instances.

It would affirm the right of victim's families to know the truth and seek redress for loss of their loved ones. The bi-partisan National Dialogue Committee must press for ratification of this international convention without reservation.

We also need a national law that criminalises this human rights violation and provides a legal framework for prosecution of persons found responsible.

State officers that commit this crime on their own volition or under the instruction of their superiors must be held legally accountable. There should be no immunity for those that look the other way.

Superiors who fail to stop their subordinates must be held criminally culpable and there must be no statute of limitation. The Kenya Kwanza government has declared it will govern in the light and not from the shadows.

Let them and Azimio la Umoja find common ground in the National Assembly and strike this practise from our nation. We owe it to Daniel Baru Nyamohanga of Migori, Samson Teckle-Michael of Nairobi, Hemed Salim Hemed of Mombasa, Mwenda Mbijiwe of Meru, Michael Njau, Adan Mohammed Saibu and Samuel Mungai of Kiamaiko, Elijah Obuong, Benjamin Imbai, Brian Oduor and Jack Ochieng of Emali among others.

Let's criminalise enforced disappearances now.

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