Enforced disappearances are eroding Kenya's democracy

Every person simply by being human, possesses rights that are inherent and internationally recognised and that is right to life, right to be treated with dignity and to enjoy liberty. That was the basis for the commitment by the states after the atrocities of the Second World War—that never again shall people's lives and liberty be taken arbitrarily. States codified the circumstances in which someone’s life may be taken. It must be through a judicial process.

Globally, states also established the circumstances in which someone’s liberty may be taken away. Again, it must be through a judicial process. The family must be informed, the law must be followed, and there must be a process through which it is determined that someone needs to be separated from what we call a regular society, usually because they have committed a crime against other members of that society.

Therefore, in a state built on democracy, part of its responsibility is to protect the lives of individuals and ensure that their dignity is respected and protected.

No member of society should be allowed to take away another person’s rights, dignity or liberty except through a legal process in which that action is justified.

Unfortunately, while we have laws and policies that have affirmed that commitment contained in the Universal Declaration of Human Rights of 1948, the first international agreement of states on what they must do to protect human rights, we’re increasingly seeing what we call democratic recession.

Kenya is a democracy and, in a democracy, people do not always agree. They may have different opinions and different views. But democracy thrives when people exchange opinions respectfully.

The rights of people as human beings and the responsibilities of the state, which are codified in the Constitution and laws, are increasingly being watered down or forgotten. As a result, people are operating with impunity. We are in a situation where political differences or opinions that differ from those of people in leadership, automatically become a source of conflict.

What is even more unfortunate is that we already have institutions set to enforce the law and the Constitution. One of those institutions, anchored within the executive, is the police service. That is why they are called law enforcement officers. They are supposed to protect and uphold the law and to stop other people from violating it.

Unfortunately, we are finding ourselves in a situation where both law enforcement officers and powerful, politically connected individuals have been accused and, in many instances, there is clear evidence of them doing the opposite of their duty. They’re acting against the law yet they are paid by taxpayers' money.

The principles of democracy, good governance, the rule of law and human rights are increasingly being undermined globally, but particularly in Africa and specifically in Kenya.

As we speak today, instead of celebrating the progress we have made in addressing enforced disappearances, we are confronted by hundreds of cases of people who have been forcefully disappeared, families crying because their children were taken away by people who are well known. Some cases are covered up and at the end of the day, families never see their loved ones again.

I think the biggest frustration for citizens is that all the safeguards are no longer useful. That creates a society that is fearful, that is extremely vulnerable, and that is very uncomfortable, even driving, either themselves as individuals or even their families, because you live in perpetual fear of being taken away.

We have seen the primary targets include people in the media, who, as part of their duty, share information in accordance with the protections provided by the Constitution and international law. But when something they write does not praise those in power, they become targets of enforced disappearance, as has been the case with Standard Group Associate Editor Alex Kiprotich.

Another group that is equally targeted is human rights defenders, because they hold the state to account. Increasingly, we are seeing many of them abducted in the streets and held for more than 40 days. We have also seen people considered to be part of the Opposition targeted.

Political competition is allowed under the Constitution, but unfortunately, people in positions of power do not want anyone who threatens their positions, and they are using enforced disappearances. We are seeing the consolidation of power by people who are also using their positions to steal resources, seize power and intimidate others.

When people in positions of responsibility question those tendencies, whether they are citizens, members of the media or civil society actors, they are intimidated. And sometimes, despite all those threats, they remain bold. That is why they are targeted.

Quite a number of people have disappeared and have never been found and that is the saddest part. Another reason we have seen enforced disappearances is that the state has refused to use the regular mechanisms for managing grievances or arresting people suspected of breaking the law.

Someone may be accused of a criminal act, but instead of following established procedures, the State chooses a shortcut through law enforcement. That is contrary to what a constitutional democracy like Kenya is supposed to be.

Someone is entitled to due process, and the state should not bypass proper law enforcement procedures through abductions. But when this becomes part of society and is normalised, even members of the public may begin using the same methods against people with whom they disagree. They may start violently removing people from places or engaging in enforced disappearances. We are creating a culture in which the rule of law does not matter, and the value of human life does not matter.

For us to find meaning and move forward, we have to return to the rights recognised in Chapter Four of our Constitution and to the responsibilities placed on every individual particularly those entrusted with protecting life and property.

The law must be upheld to ensure that arbitrary arrests and enforced disappearances are brought to an end. The greater responsibility lies with the state itself, from the highest level, to commit to ensuring that these practices never take place. Unfortunately, those in power may believe that such practices will serve them in the short term.

- Kamau Ngugi is Executive Director, National Coalition of Human Rights Defenders- Kenya