The recent enforced disappearance of Brian Nzenze, a boda-boda rider and his passenger Ericsson Aluda Mambo in Kawangware highlights a worrying statistical trend.
With a conservative estimate of over 300 individuals having ‘disappeared’ since 2006, this is the highest number ever recorded by human rights agencies in Kenya’s history.
The lack of Government investigation and under-reporting of these incidents by families due to fear of re-victimisation makes it difficult to provide precise data.
Reports by a wide range of human rights agencies such as Open Society Foundation for East Africa, Kenya National Commission on Human Rights, Independent Medico-Legal Unit, Human Rights Watch and the Truth Justice and Reconciliation Commission (TJRC) have linked these cases to security agents.
Yet, official Government response has been to deny knowledge of the disappearances even in the face of documented evidence.
By 2014, the UN Working Group on Enforced or Involuntary Disappearances, which is mandated to assist families of people who have disappeared, had referred 60 cases to the Kenyan Government for action.
The group further requested for a country visit but to no avail. Despite this indifference, civil society organisations, the media and lawyers have recently stepped up their condemnation of extra-judicial killings.
However, very little effort has been directed at addressing the main prevailing institutional gaps that militate against comprehensive protection for victims from enforced disappearances.
Firstly, it is sad that although Kenya has signed the International Convention for the Protection of All Persons from Enforced Disappearances (ICPPED) and is therefore obliged under Article 4 to take appropriate legislative action to protect the rights of citizens not to be subjected to an enforced disappearance, nothing has happened.
Since there is no domestic law on enforced disappearances, the Government has so far failed to criminalise it.
It is not yet recognised as a specific crime under the Penal Code. Only those disappearances that amount to war crimes or crimes against humanity are recognised under the International Crimes Act.
This fails to take into account that all the previously reported cases have occurred as common crimes and not as part of a widespread of systemic attack on civilians.
In the circumstances, criminalising enforced disappearances only when committed in the specific context of war crimes implies many acts of disappearances remain outside the scope of criminal law and the jurisdiction of our courts.
The Attorney General has previously argued, on record before the UN Committee on Enforced Disappearances, that the existing penal laws provide adequate safeguards through several offences linked with or related to enforced disappearances such as murder, abduction, kidnapping and illegal deprivation of liberty.
However, this position is flawed since none of these offences cover all the elements of enforced disappearance and in any case do not provide for adequate punishment considering the seriousness of the crime.
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Secondly, the country has no adequate systems to ensure that persons arrested or detained by police are not subjected to this crime.
The recently enacted Persons Deprived of Liberty Act - providing rights and minimum administrative procedures for persons deprived of their freedom - is yet to be fully effected. Therefore, police stations continue to operate illegal detention centres.
Failure to address these issues and incorporate relevant ICPPED norms to our criminal justice system has prevented the carrying out of effective judicial proceedings.
The lack of accountability of perpetrators is pronounced due to the existing institutional and legal gaps. It is not in doubt that many victims of enforced disappearance will not be able to obtain justice if we do not address these institutional failures.
The Government should form a special judicial inquiry to establish the extent and magnitude of enforced disappearances.
Further, it is urgent for the Attorney General, the Kenya Law Reform Commission and Parliament to enact a special law that criminalises enforced disappearances.
This law should make it possible for the immediate Senior Official of the perpetrator of enforced disappearance criminally liable for the same offences.
It should also entitle victims including family members of the disappeared to effective remedies in the form of financial compensation and reparation including restitution, rehabilitation, satisfaction and guarantees of non-repetition including.
Further, it should mandate appropriate Government agencies to ensure the safety and security of the victims and all persons involved in the search, investigation and prosecution. The ongoing review of the Penal Code provides a window of opportunity to effect these changes.
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