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Kenyan police extrajudicially killed 187 people and forcefully disappeared 32 others in 2021, Missing Voices has said.

Each killing and disappearance raises a disturbing question: will justice be reasonably instant or inordinately delayed?

But in almost all cases, justice is delayed, and Kenya’s criminal justice system is blamed.

Missing Voices launched on April 27, 2022, its 2021 annual report, descriptively showing how punishing killer cops and getting justice for their victims is terribly slow.

Each year since 2019, victims of police killings and enforced disappearance have been rising, according to the coalition of 15 CSOs. MUHURI is a member.

Police extrajudicially executed 145 people in 2019. Some 168 others were killed or disappeared in police custody in 2020. And in 2021, police’s unlawful elimination and forceful disappearance continued apace with 219 victims.

The records show nothing substantive has changed to disrupt police brutality.

Inquest

The court, Missing Voices says, took some cases for inquest because of a “lack of evidence”.

An inquest, guided by Section 397 of the Criminal Procedure Code, is a judicial investigation into the circumstances of a sudden, unexpected, or unexplained death in police custody. It serves to determine the cause of death, whether a crime has been committed and if there is sufficient evidence to prosecute any person.

Missing Voices, however, says cases taken for inquest could have ended in conviction because they carried credible evidence—including witnesses’ accounts, postmortem reports, and identified violators, police.

“All accused officers continued operating in the same communities and used unlawful tactics to throw out or weaken the cases. They threatened witnesses and intimidated families – in Stella’s case, one of the witnesses was killed,” the coalition says.

Missing Voices says a gap in the law, or its application, has a significant bearing on the case’s outcome—including delays.

“The Witness Protection Act envisages that a witness will need protection once the trial commences formally upon the Director of Public Prosecution’s determination that the person is a witness and thus needs protection,” the coalition says.

“But in cases where a state agency is involved in a crime, for instance, a police killing, the witness requires protection before the case starts… There exists a gap where police officers falsely charge a victim of police misconduct, and the Witness Protection Agency cannot protect a suspect.”

Court delays further weaken cases because most witnesses recall the incident from memory; the longer the case takes, the more witnesses forget the critical aspects of the case, the coalition says.

Laws

Article 25 (d) of the Constitution of Kenya says the right to an order of habeas corpus cannot be limited. Articles 26 and 29 protect the right to life, and the freedom and security of a person, respectively.

Article 6 (1) of the International Covenant on Civil and Political Rights (ICCPR), states: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

ICCPR’s Article 9 (1) states: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

Kenya ratified ICCPR on May 1, 1972, and the State is legally obligated to follow this human rights instrument.

Demands

Missing Voices now demands a realistic timeline for the conclusion of cases involving police extrajudicial killings and enforced disappearances.

The coalition also wants the enactment of a law on enforced disappearances or an amendment of existing legislation to criminalize the crime and the development of a habeas corpus guideline.

The State must also ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), Missing Voices says.

“We demand allocation of sufficient budget to the Witness Protection Agency to adequately protect witnesses and families of persons who have been forcefully disappeared,” the coalition says.

Read the report: Delayed Justice; Missing Voices 2021 annual report.