Report: Cases of enforced disappearance on rise in Kenya

Police disperse Protesters during GenZs 1st Anniverssary following abductions, shootings of their befallen colleagues last year. [Jonah Onyango, Standard]

A report released yesterday has detailed ripple effects of the victims of Enforced Disappearance (ED) in Kenya and called for the ratification of an international convention to address the matter.

In the just-released report, the Human Rights Agenda (Huria) urged the country to ratify the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED).

The report, "Unseen, Unaccounted and Unrecognised: Harsh Reality of Enforced Disappearance Victims and Quest for Recognition", called for laws to criminalise ED as a distinct offence. 

Huria noted that 100 cases of ED were documented in recent years, but there is no successful prosecution, and impunity remains the norm in the country.

It said in recent years, ED has also been used in counter-terrorism measures, particularly in regions like Coast, North Eastern and parts of Nairobi, where individuals were abducted and detained in unknown locations and denied legal protection despite the safeguards of Articles 29 and 49 of the Constitution.

Huria executive director Mr Yusuf Lule Mwatsefu said victims reported being held incommunicado, denied access to legal representation and, in some cases, never returned to their families.

“The legal framework governing cases of ED in Kenya remains inadequate. The country is yet to ratify the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) and lacks legislation which criminalises enforced disappearance as a distinct offence.

“The only present recourse for victims of ED is the writ of habeas corpus, which still remains ineffective,” he stated during a conference to mark the International Human Rights Day.

The Centre for Justice Litigation Trust (CJT) also decried deteriorating human rights standards in the country, saying that cases of state and non-state actors abducting individuals were on the rise.

CJT director Mr Julius Ogogoh said prominent people, such as security expert Peter Mbijiwe, vanished in June 2021 and, to date, have not been found.

"Even if the court issues orders for those who have disappeared to be produced "dead or alive" nothing happens. Those who suffer the most are family members," said Ogogoh.

The report by Huria noted that families of victims of disappeared persons face unbearable strains, as the current waiting period before presumption of death is seven years.

Mwatsefu said there was a need for the issuance of a certificate of absence for the disappeared person so that family members could deal with the estate of the victims.

“When a person dies from known causes, the law prescribes a death certificate to be issued. Their family can then deal with the deceased’s estate appropriately.

“However, when an individual disappears, they have no legal capacity or definition recognised under Kenyan law. There is a need for families of disappeared persons to have legal documentation that empowers them to not only find closure but also to deal with certain actions concerning the victim’s estate and other administrative requirements,” he noted.

The report urged the National Assembly to ratify the ICPPED and take immediate steps to domesticate its provisions.

“Ratification should be accompanied by a public commitment to uphold victims’ rights and eradicate enforced disappearance as a matter of national priority,” says the report.

It also called for the enactment of a comprehensive Enforced Disappearance Act criminalising the practice in line with international standards and amendments to the Criminal Procedure Code and Public Trustees Act to facilitate accessible, timely processes for families seeking administrative relief when a loved one has disappeared.

The report urged the Interior Cabinet Secretary to publish a policy directive mandating the standardisation of arrest, transfer and detention procedures across all policing and intelligence agencies.

It urged for the establishment of a reparation fund for victims of enforced disappearance and a national protocol for the tracing of disappeared persons and the dignified management of unclaimed bodies.

The report also recommended that the Independent Policing Oversight Authority (IPOA) investigate reported and suspected cases of enforced disappearance, including families of victims and public reporting of progress, and refer matters to the Office of the Director of Public Prosecutions or relevant internal bodies for action.

It urged the chief justice to formulate practice rules and directions to aid expeditious disposal of urgent applications, including habeas corpus, protection orders and requests for disclosure of detainee whereabouts.

Huria urged the Kenya National Commission on Human Rights (KNCHR) to prioritise advocacy for the provision of psychosocial, legal and medical support to victims and families.

It told KNCHR to initiate a digitised and publicly accessible national register and documentation process for cases of enforced disappearance.

The report recommended that civil society organisations support families navigating legal, administrative and investigative processes, including tracing efforts, following up with relevant authorities, securing a certificate of absence and pursuing justice through courts or oversight bodies.

“These efforts must prioritise victims’ autonomy, dignity and informed participation. Play a long-term advocacy role in addition to case-level support by documenting patterns and pushing for systemic reforms,” the report says.