Extrajudicial Killings and Forced Disappearances

Not yet uhuru

Source: Missing Voices

December 2, 2023, was the last date Daniel Muthiani, aka, Sniper, a local Meru County blogger, was last seen by his family and friends. The date also marked perhaps the last forced disappearance and extrajudicial killing (in 2023) in a series of historical violations of human rights and suppression of dissent voices since Kenya attained independence in 1963. Known for recording prayers in the form of prayers by either criticising or praising politicians, his wife reported to a local police station on December 4, 2023, detailing his abrupt disappearance. His satirical critique had caused discomfort among the political class, with his last target being Governor Kawira Mwangaza, who had been impeached 2 times by the members of county assembly (MCAs), but saved by the senate over insufficient evidence linking her to 8 counts of charges levelled against her. With mounting anxieties from his wife, children, and friends amid social media campaign calling for speedy justice for his whereabouts, intensified police search for Sniper finally climaxed as an extrajudicial murder that, nonetheless, didn't shock me because the pattern of forced political disappearances is mostly predictable in a highly politically-charged environment.

I. Historical Forced Disappearances and Extrajudicial Killings

While Kenya has atleast faired in its quest for democracy with the establishment of legal institutions, this progress has come at a cost as far as human rights are concerned. Immediately the country gained independence status from the Britain, the state was shoved into political infights among the Kenya African National Union (KANU) lieutenants. Aggressive, guerrilla-like scramble for power escalated. During this time, if there was any opposition, then it was negligible, unheard of, and not a threat to the ruling regime because the Kenya African Democratic Union (KADU) had already been dissolved by President Moi and joined KANU in 1964. But, despite that fact, political power wrangles continued to heighten, to the detriment of the Kenyatta administration, and by extension, the entire political realm.

Here is a few of the political-linked murders during independence:

• Pio Gama Pinto

Pio Gama Pinto, a Kenyan journalist, politician, and a freedom fighter of Indian descent, was perhaps the first person to be politically murdered on March 2, 1965 when the country became a republic. He was soft-spoken, articulative, forward thinking, and with an unwavering stand on his ideals. However, in his unorthodox character, Gama at one time called Jomo Kenyatta a bustard and a land grabber (Kenyatta generally had an appetite for free things) over unfair distribution of land (and true to his word, the Kenyatta family is the current largest owner of land in Kenya).

Gama's "foremost vision was that every single man, woman, and child regardless of tribe, color, language, or religion should be completely free, not just the few that were opportunistically positioned to grab power and exploit it for the benefit of the few. " However, as a self-proclaimed African socialist, his war against early days of land grabbing costed his life. Pinto was shot outside his home in Westlands in front of his 18-month-old daughter. He had been accused, by the Kenyatta insiders, of associating with Jaramogi Oginga Odinga who had been christened as radical and anti-capitalist.

Yet, despite his assasination, justice for Pio Gama is still a mystery. In 2013, the Truth, Justice and Reconciliation Commission (TJRC) said his death was motivated by “ideological difference at the heart of the global cold war but also mirrored in domestic politics.” But the commission said those arrested were “scapegoats” meant to divert attention from the real killers. (His assassination has since been unravelled in line with both domestic and international contexts).

Pinto's convicted killer was pardoned by President Moi and released in 2001, receiving approximately $31,600 for the alleged torture endured during 35 years of “wrong” imprisonment.

• Thomas Joseph Mboya

In 1966, barely 2 years after the country celebrated its uhuru, founding President Jomo Kenyatta dethroned the first Vice President Jaramogi Oginga Odinga and replaced with Joseph Murumbi. This reactive party reshuffle, made out of fears, exposed Kenyatta as the de facto leader with centralized powers and at the same time, insecure of the experienced nature of Jaramogi.

Again, in 1969, the country took a wrong turn when Thomas Joseph Mboya, an eloquent politician, the founder of Kenya Local Government Workers’ Union, and a champion of the workers’ rights, was assassinated. He had emerged as a brilliant, charismatic, and a prominent figure in the Kenya's independence politics by opposing secret trials, mass removals, and torture chambers. (See also; In 1960, the Kennedy Foundation agreed to underwrite the airlift, after Mboya visited Senator J Kennedy to ask for assistance).

But, "When Mboya suggested in Parliament that a number of Kikuyu politicians (including members of Kenyatta’s extended family) were enriching themselves at the cost of other tribal groups, the situation became highly charged and then came a final nail in the coffin. Mboya was going about his shopping in downtown Nairobi. He stepped into Chhani’s Pharmacy to buy a bottle of lotion. As he emerged, an assassin opened fire, escaping in the ensuing confusion. Nonetheless, he died in the ambulance while he was being rushed to the hospital.

After approximately 4 days, the main suspect Nahashon Isaac Njenga, alongside two other accomplices were arrested and prosecuted. Investigations carried out illustrated that the two bullets that killed Mboya were from his weapon. Though he was sentenced to be hanged, no one knows, even today, whether the court verdict was executed or not. But, one thing remains clear; while he was being arrested, Njenga knowingly said “Why arrest me? Why not the big man?”, to codely imply Jomo Kenyatta.

• JM Kariuki

JM Kariuki, as his was known, was described as a flamboyant politician and a polygamous man who hailed from the present-day Nyandarua County. His targeted murder opened a series of political-instigated assassinations that have since plagued the country for decades and characterized every administration and election. As the third recipient of the state-sponsored extrajudicial killings, JM Kariuki, whose body was found decomposing in the forest, had become a constant critic of the government. By 1975, and with the aging and ailing Mzee Jomo Kenyatta, JM Kariuki had positioned himself as the likely successor of the Kikuyu community and targeted the ultimate presidential prize. Nonetheless, his dashing style and charming rapport with the masses politically disturbed the inner circle of Jomo Kenyatta who finally decided to eliminate him. He once remarked that "Kenya had become a country of 10 millionaires and 10 million beggars," a sentiment that put him in hot soup in 1973 till 1975 when he was murdered. As a set up by the police, JM Kariuki had been falsely incriminated in clandestine criminal bombings in Nairobi. Thereafter, it is alleged that the police shot him in the upper arm at Kingsway House. While bleeding, killers later transferred him to the Ngong Hills Forest where he was left to die. His murder still remains unsolved.

• Robert Ouko

In 1990, in yet another state-linked killing, the then Foreign Affairs and International Co-operation minister was murdered. On February 15, 1990, his family broadcasted a notice through the Voice of Kenya (now KBC) and other newspapers announcing that Ouko left his Koru home in Western Kenya on February 13, 1990 without returning. However, on February 16, the then President Moi announced that "It is with profound sorrow that I have to announce the death of the Honorable Robert Ouko, minister for foreign affairs and international co-operation and member of parliament for Kisumu Town." His body- with a bullet logded in his head, soaked and burned in diesel- was found in Got Alila, a few kilometers away from his Koru home. Ouko's murder occurred at a time when opposition was gearing up for multiparty, a political emotive issue that angered those close to power during the Moi regime. His death led to a series of commissions of inquiry that didn't materialize to any prosecution. Upon further investigation, Hezekiah Oyugi, the then permanent secretary in the office of the president and a host of other suspects were implicated in the murder of Robert Ouko. However, his death in 1992, scattered Ouko investigations, and as usual, justice became elusive since then.

II. In Brief

Since 1990, the list of extrajudicial killings and forced disappearances has widened. I may not shed light on all of them, but at your own time, you can look into some of the state-sponsored murders. However, only a few have managed to escape the jaws of the killers. On December 2021, blogger and the Digital Strategist of the then Deputy President William Ruto was kidnapped by four men (believed to be police officers) and shoved into the car and sped. After some hours of the horrible ordeal, thanks to social media, he was found alive but he was badly beaten and tortured. The abductors dropped him naked, with a left eye bleeding, and both legs and his left hand fractured. So far, no case has yet to commence concerning his torture but he is on record saying that he had forgiven the abductors.

Also, check a number of killings executed by the police, as evident in several informal settlements across Nairobi.

III. 2022 Elections

Amid the heightened 2022 elections, two Indians and a Kenyan taxi driver were abducted and killed in Aberdare Forest by a four-man squad belonging to the now-disbanded Special Service Unit (SSU), a branch of the Directorate of Criminal Investigations (DCI) mandated to prevent criminalities. Documents filed in the court indicated how the four police officers assassinated the two Indians who had been hired by the current President William Ruto to be a part of his digital team. Besides, his love for adventure in the Maasai Mara was cut short by the assassins, with the last Instagram post captioning his breath-taking encounter with a lion. So far, 15 suspects in connection with the abduction and murder of the two Indians and a kenyan taxi have been arrested and prosecuted in the courts. They have been charged with cooperating in the execution of cruel, inhuman or degrading treatment or punishment and forgery.

These political murders were executed by the government to disorient the party's technical team and induce fear among the supporters of the now-ruling party United Democratic Alliance (UDA).

IV. Graphical Overview of Extrajudicial Killings and Forced Disappearances

Source: Missing Voices

2023 Statistics

Source: Missing Voices

Total Cases

Source: Missing Voices

How Extrajudicial Killings occurred

Source: Missing Voices

In 2023, out of the total cases, only 28 have had the court prosecutions started.

V. What has been done so far

In response, the parliament of Kenya enacted the following legislations to address extrajudicial killings and forced disappearances:

(i) The Independent Police Oversight Authority Act (IPOA Act), 2011 mandates civilian oversight of NPS officers.

(ii) The Prevention of Torture Act, 2017 prohibits torture and inhumane treatment, ensuring reparations for victims. Under the recently enacted legislation, individuals engaged in the act of torture and ill-treatment will face upgraded charges, no longer being accused merely of assault. Instead, they will be charged with the more severe offenses of torture or ill treatment, carrying sentences of up to 25 years and 15 years, respectively.

(iii) The Witness Protection Act safeguards witnesses in criminal cases and other proceedings.

(iv) The Penal Code establishes Kenya's criminal law framework.

(v) Persons Deprived of Liberty Act: 2014 ensures the rights of those deprived of liberty.

(vi) The National Coroner’s Service Act, 2017 governs the investigation of reportable deaths.

(vii) The Victims Protection Act, 2014 safeguards crime and abuse victims, offering support, information, and reparations.

Institutional framework:

(a) The Kenya National Commission of Human Rights, established under Article 59 of the Constitution, promotes and monitors human rights.

(b) The Judiciary, established under Chapter 10 of the Constitution, resolves disputes.

(c) The Office of the Director of Public Prosecution, established under Article 157, handles prosecutions.

(d) The National Police Service, established under Article 244, upholds professionalism, discipline, and constitutional human rights standards.

VI. Political Will

The new administration has sparked optimism for potential accountability concerning the atrocities committed by law enforcement. President William Ruto's administration has demonstrated a heightened willingness to subject Kenya to comprehensive scrutiny regarding human rights. On October 3, 2022, President William Ruto publicly declared his commitment, along with his administration, putting an end to extrajudicial deaths resulting from actions by rogue police officers. In a remarkable move within the first month of taking office, President Ruto ordered the dissolution of the Special Police Unit, which had become the focal point of expanding investigations into a series of extrajudicial killings and enforced disappearances.

The Special Service Unit, previously known as the Special Crime Prevention Unit before adopting its new name in 2019 under the leadership of former Director of Criminal Investigations George Kinoti, was established in 1999. Among the crimes assigned to this unit were illegal trafficking of firearms and ammunition, narcotics trafficking, violent robberies, theft of goods in transit, and illegal human trafficking.

However, the Special Service Unit is not the sole entity implicated. It marks the third Special Squad under the Directorate of Criminal Investigations to be disbanded in the last 13 years. Other security and policing agencies linked to extrajudicial killings and enforced disappearances include the Armed Forest and Game Park Ranger Units, the Kenya Defence Forces, and the Anti-Terrorism Police Unit.

VII. Comparisons: Organized Crime Index in Africa

Source: Statista

As per the Statista, Kenya is ranked fourth with 6.86 points in terms of the 2021 organized crime index. Democratic Republic of Congo with 7.7 points leads, followed by Nigeria with 7.38 points. The third with a high rate of crime is Central African Republic with 7.29 points.

VIII. Why Extrajudicial killings and Forced Disappearances are unresolved

In spite of the provisions and institutions examined earlier, the incidence of extrajudicial killings and enforced disappearances has surged in recent times in Kenya. The systematic nature of police killings and enforced disappearances has persisted in the country since the late 1990s. Available data indicates that extrajudicial killings and enforced disappearances have remained at elevated levels since 2013. Shockingly, police killings of citizens are disturbingly commonplace in Kenya, disproportionately affecting the poor, young, and male individuals suspected of crimes or terrorism. A civil justice advocacy group, the Police Reform Working Group in Kenya, alongside the Missing Voices, has been documenting extrajudicial killings and enforced disappearances since 2017.

• Poor evidence gathering: First responders neglect securing crime scenes, allowing community members to contaminate crucial evidence.

• Mistreatment of witnesses: Police round up and mishandle potential witnesses, detaining them without justifiable reasons, leading to reluctance to cooperate with investigators.

• Incompetence and recklessness: Police criticized for shoddy investigations, providing contradictory information in court, relying on rumors, leading to acquittals or wrongful prosecutions. Investigations seldom occur unless there is substantial public outcry fueled by media coverage or if the victim is prominent or well-connected. This could elucidate why justice was achieved in the case of Lawyer Willie Kimani, his client, and their driver after their abduction and execution by the police in 2016, while numerous other complaints remain unaddressed.

• Lack of forensic capability: Delayed establishment of a forensic laboratory, forcing reliance on foreign labs with families covering shipping costs, causing significant delays in obtaining results while others completely abandon seeking justice.

• Poor legal environment: National Police Service lacks an official policy for community interactions, outdated Standing Orders not aligned with the constitution, instances of excessive use of force against unarmed citizens. Police have had to use live bullets even in circumstances that only require slight force to disperse protestors. This incident happened in Kajiado county when residents protested against elephant invasion.

• Inadequate data: Absence of a national crime register hinders identification of habitual criminals within communities.

• Allegations of extra-judicial killings: Police accused of extra-judicial killings, investigations often compromised by the 'blue code of silence,' hindering accountability. Arshid Shariff, a Pakistani investigative journalist, fell victim to extrajudicial execution at the hands of the police, who claimed the tragic incident resulted from a "mistaken identity." This case stands as another poignant example of unlawful killings outside the judicial system.

• Limited oversight: Independent Policing Oversight Authority faces resistance from policing agencies, and the National Coroners Service Act 2017 is yet to be implemented, hampering investigations into unnatural and violent deaths involving police.

• Silent Killings: In Nairobi's impoverished neighborhoods, the status quo persists. Social justice advocates are recording an increasing number of instances involving lifeless bodies displaying evident signs of torture. While there are no firsthand witness testimonies to confirm police engagement in each case, there exists a reasonable suspicion. This suspicion is fueled, in part, by the fact that several of the deceased individuals were included in police "death lists." Social justice activists explain that these lists, featuring names and photographs, are disseminated by the police and their informants who are compensated. These compilations of suspected criminals are often shared through WhatsApp groups and occasionally on Facebook, with many individuals meeting their demise after being added to these lists.

IX. Bottom Line

It is evident that extrajudicial killings and forced disappearances have evolved. During the independence period, only high-profile persons like Thomas Joseph Mboya and JM Kariuki were targeted by the state partly due to their political influence and ambitions that rattled the establishment. However, since the 1990s, common individuals with lower ranks have been the victims of the extrajudicial force. By 2000s, due to the protected nature of the political class, extrajudicial killings shifted to informal settlements with young persons aged 16-35 years, as per the Independent Medico-Legal Unit (IMLU). The greatest impediment to cracking extrajudicial killings and forced disappearances still remains the inefficient criminal justice system due to its appalling professionalism, poor investigations, and cover-ups. Though many legal frameworks and suggestions have been put forth, strong emphasis on evidence gathering, alongside other tactics, should remain the first-hand reference and basis of arrest, prosecution, and a win for the victims of extrajudicial killings and forced disappearances.