Disappearances: Judiciary need to somberly introspect
August 30 is the International Day of the Victims of Enforced Disappearances. The International Convention for the Protection of All Persons from Enforced Disappearance defines enforced disappearance as “...the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons of group of persons acting with the authorisation, support or acquiescence of the State....”
In many countries, forced disappearances are recounted in different contexts but it’s usually against a predetermined group or classification of persons — such as suspected terrorists, criminal rings and rebels. Hussein Khalid, of Haki Africa, says it is estimated that more than 110 people disappeared without trace in the coastal region over the past five years. That is 22 persons yearly. Then, local media were awash with stories of unclaimed bodies found in Tsavo National Park, mostly devoured by animals.
About 20 unexplained bodies have been recovered in or near rivers in central Kenya — including a Somali-American contractor and five male friends allegedly abducted in Kitengela, Kajiado.
There is a possibility that this a creation of criminality enterprise. But human rights activists point the finger at security agencies, accusing them of arbitrary arrests and forced disappearances of the victims. So, could the agencies be frustrated over unsuccessful prosecutions of suspects?
Could the Judiciary be the weakest link in the criminal justice system? The 2008 Waki Commission noted in its overall assessment of the justice system that the criminal justice system chain is generally weak with the investigative function its weakest link. “The weakness in the system impacts on the rule of law and, therefore, promotes impunity.”
Public confidence gap
Pundits argue that it’s the tussle between “weak prosecutions and witty acquittals” that have contributed to low faith in the criminal justice system. The principles of democracy, rule of law and human rights as envisioned in the Constitution can only be obligatory with a strong and independent Judiciary.
The Constitution not only decrees the court system to be independent but also generates mechanisms such as the Judiciary Fund to manage its cash as well as the Judicial Service Commission to preside over key matters.
In 2017, while launching a conference on the need to decriminalise petty offences in Nairobi, then-Chief Justice David Justice Maraga called for a paradigm shift in handling such offences through strengthening accountability and transparency mechanisms in the criminal justice sector.
To address the public confidence gap, the Judiciary must show leadership and direction in the implementation of its strategic plans. But Parliament must legislate and allocate it enough resources.
Wee Chong Jin, the first Chief Justice of Singapore, once said: “The qualities that one should look for in a judge are a burning desire to be fair and impartial; the courage to uphold the law and strike down injustice; compassion, coupled with an understanding of human frailties; and, lastly, love for the law.”
Mr Lusiola, security and risk consultant, is a PhD candidate. [email protected]