NAIROBI,Kenya – The past few weeks we have witnessed peaceful protests commenced in Kenya, where the citizenry, ‘The People’ as referred to in the Constitution, to whom all sovereign power belongs to, have been calling and pushing for the change so required in a quest to transform the country, for better. Unfortunately, despite the protesters being peaceful and in Kenyans only exercising their Constitutional rights, there has been an increasingly worrying trend of some peaceful protestors being abducted from various places to include their homes.
Some of those abducted have since been released after interventions from numerous quarters to include the brave citizenry on social media and lawyers led by the LSK President. Unfortunately, there are those who were abducted and are yet to be found while others, sadly are now deceased, their lives having being cut short. The recent discovery of bodies in Kware region, even as investigations commence, tell a sad tale of a country that does not seem keen to protect her people from enforced disappearances or extra judicial killings.
Abductions in their very nature are actual enforced disappearances. Enforced disappearances can simply be defined as the act of abducting, imprisoning or detaining, or arresting a person against their will and in most case without legal justifications to do so, most often done state agents of persons with their authority.
Enforced disappearances, most often than not are used as intimidation tactics to instil fear in the victims, with a quest to silence them or deter them carrying on with an activity in the present case mandamano. These enforced disappearances in turn birth extra judicial killings, where decomposing bodies in sacks being retrieved from rivers and quarries being the evidence needed to appreciate that something is amiss. It goes without saying that such acts violate numerous human rights and fundamental freedoms not only enshrined in our Constitution, but regional and international instruments Kenya is a party to.
Kenya is yet to ratify the International Convention for the Protection of All Persons from Enforced Disappearance which came into force in 2010. The birth of such a convention only rubber stamps that indeed enforced disappearances do not only occur but were seemingly increasing. This convention aims at ensuring that such disappearances are a thing of the past and that perpetrators of the same are brought to book.
Article one of this convention provides that no one shall be subjected to enforced disappearance. It further provides that there are no circumstances that should exist to justify any case of enforced disappearances.
State parties are tasked with ensuring concrete investigations are carried out by all relevant agencies where they are to rightfully prosecuted. It is interesting to note that the convention provides that measures must be taken to ensure that enforced disappearances are criminalised with appropriate punishments being meted to the perpetrators.
The Convention further provides that the systemic practice of this vice constitutes a crime against humanity as defined in intranational law. A quick reading of Article six in a nutshell provides that a superior who knew of planned abductions resulting in enforced disappearances is to be held criminally liable for failing to take the appropriate measures to ensure that such acts were not committed in the first place.
Enforced disappearances in their very nature are a mockery to the criminal justice system given that those abducted are technically not being arrested. As such all the appropriate procedures will not be adhered to. We cannot continue to witness what I deem to be barbaric acts of old being used in present times for whatever reason. People should not just be made to disappear, where others end up dead while others traumatised beyond words.
Last I checked, Kenya is a democratic country governed by the rule of law and Constitutionalism. In the same breath, the rights and freedoms enshrined in the Constitution, the same one that provides that all sovereign power belongs to the people, are to be enjoyed free of any fear or intimidations. It cannot be business as usual as numerous Kenyans are forcefully disappeared. It is a high time Kenya ratifies the convention and criminalise this heinous act.
Wallace Nderu is an Advocate of the High Court and a Programme Officer at the Kenyan Section of the International Commission of Jurists (ICJ Kenya). This article was first published on the Nation.
