“Family of missing youth seeks DPP’s help to find him” was a headline in Tuesday’s Standard. It is not clear who took him away, but the family says they identified themselves as police officers. If they were not, it is a crime. But suppose they were police officers — the police may be unenthusiastic about trying to trace the young man and those responsible for abducting him.
The truth is that there have been many examples of disappearances at the hands of state authorities in Kenya, as reports by organisations such as the Kenya National Commission on Human Rights, Human Rights Watch, Haki Africa and The Advocates for Human Rights have shown.
There is a famous remedy for securing the release of people who are wrongly detained, which is recognised in our Constitution: “A person who is detained or held in custody is entitled to petition for an order of habeas corpus.” This involved someone going to court and complaining that they or someone else was detained unlawfully. The court would respond by ordering the person (the body) be produced in court and those holding him or her explain to the court on what authority this was done. If there was no satisfactory explanation, the person would be immediately released.
Some people tell us habeas corpus can be traced back to the Anglo-Saxons (before the Norman French invaded Britain in 1066 ) or even to the Romans centuries earlier. In reality it was not very successful as a protection against the powerful, including the kings, until the 15th century, despite being included in the Great Charter of 2015. It became a defence for new forces, including Parliament, against dictatorial kings, though judges were not always courageous enough to stand up to the kings.
Though people can be almost poetical about the great constitutional importance of habeas corpus, in reality, it is now rarely used in English courts. However, there have been a few recent cases, particularly terrorism-related.
Last year, the Supreme Court decided habeas corpus would in theory be available to an Afghan prisoner of war detained in Afghanistan by British forces. However, from a practical point of view, this was of limited use and thus the UK was in breach of its obligations under the European Convention on Human Rights to provide an effective way to challenge his detention.
HABEAS CORPUS IN KENYA
The Constitution says a right to habeas corpus cannot be limited. This is an improvement on English law because there the right to habeas corpus can be suspended. This has often happened just when it was most needed, for example when foreigners were detained during the two world wars, or Irish Republicans detained in 1971 to try to crush the rebel Irish Republican Army.
There have been various cases on detention in Kenyan courts. Some courts have moved quickly to deal with what seem to be unjust detentions. In 2003 an application on May 27 led to a court order on May 29 that the police produce the detained person in court the next morning or release him.
But habeas corpus has its limits. It is no use, as Justice Jackton Ojwang said, if those who seized the person have taken him or her out of the country. It is no use if the detained person has been found dead, as was the case with Willie Kimani, his client and the taxi driver. And it is no use if those who have detained the person admit this but say he or she has escaped, as Justice Muriithi was compelled to agree.
The more ruthless the authorities (and it is usually the authorities, especially the police) the less useful is habeas corpus. So, countries got together to consider how the problem of forced disappearance might be dealt with.
The result was a treaty: The International Convention for the Protection of All Persons from Enforced Disappearance. By enforced disappearance it means (in brief)
(i) the arrest, detention, abduction of a person
(ii) by agents of the State or by some one authorized by the State,
(iii) followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person
(iv) with the result that the person is taken outside the protection of the law.
Countries that are parties to this treaty must do what they can to investigate people responsible and bring them to justice, which includes making “disappearing” a person a crime. Both the individuals responsible and their superior officers are to be legally liable, and no ‘orders from on high’ are to be a defence.
Countries must also ensure that anyone has the right to report an alleged disappearance to the relevant authorities, and these must examine the allegation “promptly and impartially”. There must be arrangements to protect the person who reports the disappearance, witnesses, relatives and lawyers against ill-treatment or intimidation.
Kenya signed this treaty in February 2007, but has never ratified it, so it is not binding on our government, and not part of our law. Why did it sign, one wonders?
It is not easy to write a good criminal law on enforced disappearances that achieves its object and can ensure fair trial to the people being tried. However, various countries have passed laws, and some institutions have developed models that countries can consult.
But, as important as punishing those responsible is the need for procedures to make it harder for authorities to ‘disappear’ people, and to ensure investigations take place when people disappear. Kenya has laws about torture, and about the treatment of people who are detained. But neither of these fully deals with these issues.
It is disappointing that having signed the convention, the government has not taken the matter further and ratified it. Apparently, they argue there are enough laws in Kenya. But if the laws were obeyed, would we have so many examples of extra-judicial killings and disappearances?
Ratification is the process that makes the treaties binding on Kenya under international law, and, because of the Constitution, part of Kenyan law. This process now has to be approved by Parliament, but they have to wait until the government asks them to approve.
If Kenya ratified, it would have to report periodically to the Committee that monitors how the treaty is working. It would focus the minds of the authorities on the question of whether enough was being done to safeguard the lives of Kenyans.
Maybe it would also help the courts to move beyond the limitations of habeas corpus, and develop remedies that will ensure that at least disappearances will be investigated, as they are in fact already doing.
It is time we moved away from the sort of situation described by Justice Luka Kimaru in the Willie Kimani case:
“The facts of this application clearly disclose the existence of a culture of impunity in the Police Service that enabled such acts as were perpetrated by the concerned Administration Police Officers to take place. Unless the conditions that breed and feed such mentality are weeded out from the Police Service, such occurrence as happened to the deceased petitioners is bound to be repeated. …There was distinct lack of enthusiasm by the police to investigate the disappearance of the deceased petitioners when the incident was reported to them. The police belatedly took action when the Law Society of Kenya and Civil Society took up the deceased petitioners’ cause. Unfortunately for the deceased petitioners, by the time action was taken it was too late.”
Haki Africa has asked the DPP to compel the police to produce the young man with whom we began. They can ask; in fact no one can order the DPP to investigate any particular case. Nor can the DPP order the police to produce him.
But he can direct the Inspector General of Police to investigate any allegations of criminal conduct. The police insist they are already investigating. Let us hope they do so to good effect.
Jill Ghai is a director at Katiba Institute