On the occasion of this year’s International Day of the Disappeared Persons -30th August- International Center for Policy and Conflict [ICPC"> express its solidarity with families of all those who suffer from enforced disappearance in Kenya and internationally and pays special tribute to the selfless efforts of human rights defenders working for enforced or involuntary disappeared persons and their relatives. ICPC stresses its grave concern that enforced disappearances in Kenya are becoming a daily occurrence; and yet the country has done nothing to create a specific criminal offence of enforced or involuntary disappearance. Enforced disappearance according to International Convention for the Protection of Persons against Enforced Disappearance is defined as act a deprivation of liberty, refusal to acknowledge the deprivation of liberty or concealment of the fate and the whereabouts of the disappeared person and the placing of the person outside the protection of the law .It is crime clarified under torture, murder and crime against humanity.

We unequivocally condemn continued reported cases of enforced disappearance of Kenyans as a serious human rights violation; and the Center is concerned that this humanitarian scourge is deteriorating. The Center urges Kenya government to fulfill its obligation under article 4 of the Declaration on the Protection of all Persons from Disappearance to treat all acts of enforced disappearance, whether by security agencies, ordinary civilian or organized criminal gangs, as offences under criminal law punishable by appropriate penalties which shall take into account their extreme seriousness. On this day, ICPC is encouraging the community of nations that are signatory to hasten the process of ratifying and locally domesticating the Convention to bring it into full operational. Kenya appended her signature to the Convention on February 2007 when it was opened for signing. The Center in collaboration with other affiliates of Kenyans for Peace, Truth and Justice [KPTJ"> is at moment contacting relatives of victims to compile authoritative data of cases of reported enforced disappearances in order to seek appropriate intervention and justice from international justice institutions. A complain of a disappearance is a very serious matter. Every complaint that is reported the state is compelled to conduct thorough investigations and to explain the whereabouts of the person. This is an obligation the government owes to its people and not just to the victim and the families of the disappeared only. The state is under obligation to account for each and every complaint of a disappearance with fail. In case of failure, the relatives of the victim(s) have right and opportunity to seek remedy within internationally established mechanisms.

International Center for Policy and Conflict, Coalition of Kenyans for Truth, Peace and Justice [KPTJ"> and international friends are calling an immediate establishment of an independent People’s Tribunal into Forced or Involuntary Disappearances by the government of Kenya. The Tribunal is to act on basis of solid investigations and evidence properly assembled through thorough investigations and documentation on all the reported deplorable and shocking cases of forced disappearances of people in Kenya. The time has come for the full truth of the crimes of the enforced disappearances to be shared before the world, so that those responsible can be unmasked, brought to justice and the relatives of the victims are compensated accordingly for the loss of their loved ones. Forced disappearance is a grave problem and human rights violation, especially if the perpetrators are state security authorities where the facts are closed and suppressed. Bodies of victims are found destroyed in order to conceal the evidence which may bind the perpetrators.

If the government of Kenya is not ready to act then the local human rights groups are set to petition and seek for international intervention to conduct independent investigate, documentation and public hearings on the all of the enforced disappearance of reported persons. The ICPC is concerned that recently the number of the disappeared has sharply increased in Kenya; while no action has been taken by the Kenya government on these cases despite many calls for urgent and decisive intervention on this grave human rights violations. ICPC phantoms the indifferent attitude displayed by the Kenya government. This kind of crime is aimed at silencing any kind of protest against human rights violations by the prevailing regime while ensuring its survival by means of the physical annihilation of all of those who are deemed to express their conscience and civil liberties freely. It is important to establish that enforced disappearance contain several elements, but at the very least in Kenya context there are serious allegations of direct or indirect participation of the state security authorities as well as the subsequent denial that they were involved.

We recognize that enforced disappearance is distinct crime meant to communicate a certain message to the target individual or group by those responsible for committing this heinous crime. ICPC and KPTJ do observe that enforced disappearance in Kenya are closely related to crime of extrajudicial killings and torture which has been characterized by a period of uncertainty regarding the fate of the victim(s) after the abduction; and in many cases that uncertainty is never cleared up. Lately, enforced disappearance in Kenya are allegedly committed exclusively at the initiative of the government, through its security agents, whether uniformed or in civilian. Historically, human rights violations like enforced disappearances are not new. However, the systematic and exceptional intensity manner in which they have been used lately in Kenya as a weapon designed to bring about not only the actual disappearance of certain person(s) but to generate a generalized state of anxiety, fear and insecurity is worrying.

Kenya has failed to do more to prevent the enforced disappearance of her citizens and to end the culture of impunity that often is accompanying this horrifying crime. Rarely are people who commit such crimes are brought to justice instead security apparatus are spending huge some of taxpayers money denying and launching unmitigated propaganda targeting human rights groups exposing these horrendous crimes. ICPC would like to inform the security forces in Kenya that impunity or denial of justice creates a social climate in which completely erode confidence in the institution. No amount of harassment or misinformation meant to silence human rights defenders is going to deter demand for accountability and justice from the duty bearers. It is unfortunate that culture denial and protection of criminals within the security forces is gaining momentum and sanctioned. If enforced disappearances remain unpunished, the memory of the disappeared will haunt the Kenyan society; the official silence surrounding enforced disappearances would exacerbate rather than quell insecurity; and fosters a spirit of vengeance.

The establishment of an independent People’s Tribunal by the government of Kenya to allow free public hearings would create an opportunity for the people to bring out the crucial evidence and unmask the culture of denial and impunity by the security apparatus. If the Grand Coalition Government genuinely believe in human rights and is serious in meeting its obligations and protecting basic rights of its people, it must uphold these principles by ensuring availing an opportunity for people voices to be heard through public hearing, which provides for speedy justice. Public hearings on the enforced disappearance are such useful tool in providing a voice to the voiceless those who have faced this horrendous injustice and are willing to testify against the person(s) in abuse power.

ICPC observes that state violence and injustice are alarming and eating away at the people in Kenya due to unlawful practices and excessive force by state authorities particularly security agencies and state compliant judiciary. The trend of forced disappearances, extra judicial killings and torture are turning phenomenally problems in Kenya with no state remedial measures in sight. This is even worrying considering that the alleged perpetrators are state authorities; which make it easier for the facts to be closed and suppressed. The victims’s bodies are either found disemembered, buried or taken secretly to mortuary in order to conceal the evidence which may bind and implicate the perpetrators. Many families of disappeared persons are living in fear while the state authorities do not place importance on finding the truth and trying to address this grave problem. This is one important reason that the government has been unable to obtain sufficient public trust, with a feeling of lost confidence in the security and justice system. We are challenging the Ministry of Justice, National Cohesion and Constitutional Affairs and the Attorney General to explain to the Kenyan people and the world why this gross human rights violations is going on under their watch yet Kenya government claim to uphold human rights and the rule of law credentials. It is a spectacular failure of these two crucial offices to protect the basic human rights of people; and more importantly, it is a collective conspiracy by government to side with the evil to silence and abrogate citizens’ right to security, life and liberty.

ICPC would want the Kenya government to acknowledge the scale of enforced disappearances, extra judicial killings and torture; give protection and support to affected victims and families; take firm action to resolve cases of all disappeared persons and prosecute the real perpetrators. It is clear that there will be no solution to the problem of people disappearing in Kenya until the question of all those already forced disappearances has been openly and fully addressed. It feeds into a circle of endless state violence against its citizens. There is no credible government that can whitewash a grave crime presuming that justice will never be delivered. The buck stops at the President and he needs to appreciate that international justice accountability might be called to prevail at a certain time.

The International Center for Policy and Conflict is calling on the President and the Prime Minster of Kenya respectively to observe and act appropriately into the following:

1. Realize the significance of this problem by returning justice to the public, especially to the persons who have been forcibly disappeared; provide protection to the families of the disappeared; and support and promote every person to gain access to justice equally;
2. Recognize that enforced disappearance is a continuing horrendous crime, as long as the perpetrators continue to conceal the fate of the disappeared person(s) and the facts remain unclarified; consequently, the need to non-application of statutory limitation periods to enforced disappearances;
3. Make clarification that no superior order or instruction of any public authority may be invoked to justify an act of enforced disappearance;
4. Exclusion of perpetrators of enforced disappearances from any amnesty or similar measures, and from any privileges, immunities or special exemptions from prosecution;
5. Enforced disappearance shall not be considered as a political offence;
6. Failure to effectively investigate any alleged enforced disappearance should constitute an independent crime with an appropriate punishment. The minister and/or the head of department responsible for the investigations and prosecutions should be held accountable under criminal law for the said disappearances;
7. Relatives of the disappeared persons should be recognized as independent victims of the enforced disappearance and be granted a right to the truth, right to justice and right to reparation;
8. Immediate release of the disappeared person if he or she is still alive, or the exhumation and identification of the body and the return of the mortal remains to the next of kin for a decent burial, as well as rehabilitation, medical, psychological and social care at the expense of the government responsible;
9. An official apology by the authorities, guarantee of non-recurrence and full disclosure of all relevant facts following an in-depth investigation and the prosecution of the perpetrators;
10. Compensation for material damage -including a realistic assessment of loss of income and maintenance of dependents, as well as legal costs- and an adequate support for the mental and physical suffering of both the disappeared persons and their relatives;

Signed

Ndung’u Wainaina

Executive Director [email protected]