Two civil society groups have petitioned court to declare police officers, including those attached to the Directorate of Criminal Investigations (DCI), unfit to investigate crimes committed by state security agents, to curb cover-ups of extrajudicial killings.
Kituo cha Sheria and Haki Africa also want court to declare that investigations into extrajudicial killings and enforced disappearances be exclusively conducted by the Independent Policing Oversight Authority (Ipoa) and not the National Police Service.
In the petition filed at the High Court in Milimani, the groups in addition seek a declaration that all incidents of death and serious injuries due to action by a police officer on duty, or happen while in police custody, should be primarily, independently and exclusively probed by Ipoa.
It was filed after a Muslim cleric previously based in Marsabit, Sheikh Guyo Gorsa, refused to leave Kamiti Maximum prison after being discharged by court in a terror-related case. He expressed fear that he will be executed by state security agents just like other terror suspects who have disappeared without a trace after being freed by court. Sheikh Gorsa opted to pay for his subsistence while at prison costing Sh60 daily.
Chief magistrate Wendy Kagendo allowed his request to remain at Kamiti and ordered that he be kept for 30 days pending further orders by the High Court where his lawyer, Dr John Khaminwa, has filed an application seeking to compel the state to protect the preacher. He was arrested by the Anti-Terror Police Unit in 2018 and subsequently accused of being an al-Shabaab operative.
National Police Service
He was charged with terrorism and the trial remained active, culminating in his acquittal on May 6, 2021.
They argue that police and the state security agencies have always been fingered as the main suspects in extrajudicial killings and enforced disappearance of criminal suspects, hence they cannot be entrusted with investigations of the same. "In most instances, the National Police Service has taken the role of investigating crimes committed by the police themselves, a fact that has highly compromised the partiality of investigators due to conflict of interest."
Although the police and military continue to be implicated in the disappearances and killings of individuals, the groups have said the government has instead denied responsibility for the same, leaving families frustrated and in mental anguish and psychological torture. "Many of the enforced disappearances have taken place in the context of operations against perceived members or sympathisers of the Somalia-based Islamist militant group, al-Shabaab, drug traffickers, poachers and other acts of criminality," say the petitioners.
Their co-petitioner, Mr Charles Njue, is a victim of enforced disappearance whose relative went missing in mysterious circumstances.
Through a team of three lawyers, led by Dr Khaminwa, they state that involvement of the police in investigating crimes allegedly committed by their colleagues has undermined the role and mandate of Ipoa.
The other advocates are John Mwariri and Rosette Ochoo. “It has further diminished and compromised the victims and their family’s confidence in making complaints and partiality in carrying out investigations,” reads the court documents.
They have supported their case with various reports such as the one by the Human Rights Watch in 2016 that documented 34 cases of enforced disappearances and 11 cases of extrajudicial killings. The Kenya National Commission on Human Rights has since the year 2013 documented over 1,040 cases of extrajudicial killings and enforced disappearances blamed on security agents.
The petitioners state that in 2018, Kenyan human rights groups documented at least 267 cases of extrajudicial killings by police. In 2017, the Independent Medico Legal Unit, a Nairobi-based organisation that works on police accountability, recorded 152 extrajudicial killings.
"It is expected that these statistics will be surpassed this year. It is a matter of public notoriety that this year alone by February 2022 (a span of two months alone), more than 30 bodies were retrieved from River Yala, Siaya County, and more cases continue to be reported each waking day," reads the petition.
The petitioners' further contention is that there is a general lack of official data by the state on police killings and enforced disappearances.
"The Kenyan government does not keep a formal record of police killings and enforced disappearances, hence the lack of accountability and transparency. The state has also failed to come up with legislation that criminalises and prescribes sentences for the crime of enforced disappearances," they say.
The lacuna in law makes it difficult to obtain evidence required to convict perpetrators as the test to prove the offence is beyond reasonable doubt. In addition, to prove an offence of murder, one of the requisites is an unlawful death of the victim.
"The evidence that one has to surmount is whether the victim is dead, who killed him and what was the intention, which, in most instances, is impossible for enforced disappearances," the rights groups say.
They want court to direct the Attorney General and the National Assembly to enact a law that criminalises and prescribes sentences for the crime of enforced disappearances and a status report be filed in court within six months of the judgment.
The petition wants the National Police Service and the DCI directed to provide information and data on official number of complaints about extrajudicial killings and enforced disappearances received from 2010 to date. Also sought is data on the outcomes of such complaints, including prosecutions, particularly police officers who have been disciplined and prosecuted. Further sought is a declaration that enforced disappearances constitute a crime against humanity under the Rome Statute of the International Criminal Court and the International Crimes Act of the laws of Kenya.