Updated July 29, 2021: Mombasa High Court has set the hearing date.
MUHURI on June 10 filed a habeas corpus application seeking the release of Bakari Mwanyota Mbwana from police custody.
Mombasa High Court Judge Erick Ogolla on July 29 said he will hear the case on October 12. It will be an in-person sitting.
Police have detained Mbwana without trial after his nighttime abduction in Likoni on February 23.
MUHURI sued Inspector-General of police Hillary Mutyambai and Attorney-General Paul Kihara.
MUHURI fears that police may extrajudicially execute or forcefully disappear Mbwana if he is not released or presented before any court in Kenya.
If this happens, MUHURI says, Mbwana’s fundamental rights—protected by the constitution and international human rights and humanitarian law—will be defeated.
“Mutyambai has no legal authority whatsoever to hold Mbwana in prolonged pre-arraignment detention outside the limits and procedures set by the constitution of Kenya,” the petition says.
How police abducted Mbwana
Two white foreigners were among officers who conducted a nighttime raid in Likoni that resulted in Mbwana’s abduction, the victim’s wife, Saida Omar, has said in court documents.
“The officers did not disclose to my family and me any reasons for storming into our house,” Omar further noted in the official papers. There were no court warrants authorizing security agents to breach the house, she added.
Commandos ransacked Mbwana’s house and found nothing, yet they claimed there were guns, Omar recalled.
The officers left with Mbwana and told his wife they were taking him to Nairobi for interrogation. The family has never seen him.
This nighttime operation spanned about a week, from February 16-24, involved dozens of heavily armed officers and led to the abduction of five people—two turned up dead, two disappeared, and one returned.
Mbwana, aged 41, was among the disappeared—another was Ali Tengeza, 20.
The dead were Juma Athman, 29, and Hamisi Mwinyi, 17, taken out by security agents. Their families discovered the bodies at Coast Provincial General Hospital (CPGH) morgue with gunshot entry wounds to the chest and wide exit gashes in the back.
Athman had signs of torture—broken neck, blood-filled and swollen face, and gouged eye.
Azizi Mchangamwe, 26, among the five abductees, was lucky to be released.
Police have never released an official report about this operation. Instead, they chose to be evasive in admitting liability.
Who is Mbwana?
Mbwana worked as a butcher in Likoni before his abduction. He has five children, the oldest aged 22, youngest aged four.
MUHURI is seeking a declaration that Mbwana’s continued incarceration amounts to detention without trial and is an act of enforced disappearance.
Besides prayer for habeas corpus, MUHURI is also pushing to declare police’s storming and searching of Mbwana’s house without a court warrant as unlawful and a breach of his privacy.
MUHURI further wants a declaration to be issued that Mbwana is entitled to an effective remedy against Mutyambai and Kihara for the abduction and indefinite detention.