Kenya has experienced an upsurge in cases of enforced disappearances and extrajudicial killings over the last five years, a situation that has not gone unnoticed in the international arena. The state has constantly been in the spotlight over allegations of a well-calculated policy to deal with suspects and perceived sympathizers of terrorist organizations through the use of extrajudicial methods. This practice is in blatant disregard of the state’s human rights obligations under domestic and international law.
A Human Rights Watch Report has documented 34 disappearances in northeastern Kenya between 2013 and 2014. The missing persons were suspects taken into custody by security forces during counterterrorism operations. Their whereabouts still remain unknown. Human Rights Watch has given an account of witnesses who stated that the policemen who arrested their kin did not identify themselves, and lacked any identification insignia, making it difficult for families to trace the suspects or get justice.
On 30th August 2016, 13 Kenyan and global human rights organizations asked the Kenyan Government to set up a commission to investigate enforced disappearances in Kenya, noting that human rights organizations had documented over 300 cases of individuals who had gone missing while in the custody of security agencies since 2009.
This is notably not the first time that Kenya has been in the spotlight over enforced disappearances, extrajudicial killings and police brutality. Between 16th and 25th February 2009, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions visited Kenya to ascertain the types and causes of unlawful killings. In his report, the Rapporteur concluded that police in Kenya frequently eliminated individuals and a climate of impunity prevailed. He noted that there were police death squads operating on the orders of senior police officials, charged with eliminating suspected leaders and members of criminal organizations. The Rapporteur made recommendations including the disbandment of police death squads, a review of Constitutional provisions and local laws on the use of force, the establishment of a commission of inquiry into the operation of death squads, compensation and civil redress for the families of victims, and the immediate issuance of instructions to the police to stop acts of intimidation and harassment of human rights defenders. A follow up by the Rapporteur indicates that most of these recommendations have not been implemented.
Enforced disappearances and extrajudicial killings violate the inherent right to life guaranteed under Article 6 of the International Covenant on Civil and Political Rights. The United Nations General Assembly in its Resolution on Extrajudicial, Summary or Arbitrary Executions, noted that enforced disappearances could lead to summary or arbitrary executions. The Assembly reiterated the obligation of states to conduct prompt, exhaustive and impartial investigations into suspected cases of extrajudicial, summary or arbitrary executions, while ensuring the right of every person to a fair hearing by a competent, independent and impartial tribunal established by law.
Kenya’s Constitution of 2010 contains detailed provisions on the rights of arrested and detained persons. Article 49(f) of the Chapter on the Bill of Rights provides that an arrested person has the right to be brought before a court within twenty four hours of being arrested. Article 51(1) provides that a person who is detained or held in custody or imprisoned retains all the rights and fundamental freedoms in the Bill of Rights except those clearly incompatible with the fact of arrest and detention. Article 51(2) provides for the right of a detained person to petition for an order of habeas corpus. These obligations have clearly not been adhered to.
On 22nd January 2015, the Working Group on the Universal Periodic Review, established in accordance with Human Rights Council resolution 5/1 of June 2007, carried out a State review on Kenya in its seventh meeting. Various State delegations expressed concerns over extrajudicial killings, the use of excessive force by security forces in counterterrorism operations and the intimidation of human rights defenders. A substantial number of state recommendations focused on the accountability and transparency of police and security forces and the investigation of attacks against human rights defenders.
The rise in enforced disappearances and extrajudicial killings in Kenya can be attributed to a culture of impunity among a section of the police force and a lack of political will to bring errant forces to account. The enforced disappearance and subsequent murder of a human rights lawyer, his client and a taxi driver, allegedly by errant police officers, are chilling reminders of the atrocities that can occur in the hands of unbridled security forces. When security forces torture, maim or kill suspects, they fight against the very values that they swore to uphold and defend.