AG, MPs on the spot as law on enforced disappearances stalls despite House directive

Daniel Baru Nyamohanga’s family is yet to get justice nearly 10 years after their kin disappeared following his arrest on suspicion of robbery.

After his arrest, Baru was driven to the Kehancha Law Courts compound but was never presented before a magistrate. Instead, he was returned to a police station and detained unlawfully. His detention was neither recorded in the Occurrence Book nor linked to any complainant.

A habeas corpus application filed at the High Court in Migori seeking his release later found that his constitutional rights had been violated.

Justice Anthony Mrima established that crucial information in the manual Occurrence Book had been altered and falsified, apparently to conceal the sequence of events and shield officers on duty from responsibility. The court issued a strict habeas corpus order directing the OCS to produce Baru “dead or alive”.

When the officer failed to comply, he was charged with contempt of court (in 2018), exposing him to possible imprisonment. The court and the Inspector General of Police treated the matter as a criminal cover-up of an enforced disappearance. Yet despite the damning findings, Baru remains missing.

Ninia Sonch* (Name changed to protect identity) is among many other Kenyans still searching for answers. Her relative, Michael Njau, was allegedly abducted along Thika Road in 2020 and has never been found.

According to the family, case files later disappeared from police custody while officers handling the investigation were transferred. The family believes orders from senior quarters interfered with investigations, effectively shutting down any meaningful search for answers.

Human rights groups say such cases have flourished because Kenya lacks a specific law criminalising enforced disappearances and establishing clear mechanisms for investigations, accountability and reparations.

As a result, prosecutors often rely on offences such as kidnapping, wrongful confinement or abduction, which rights defenders argue fail to capture the gravity of enforced disappearance, especially where state agents are implicated.

The legal gap persists despite Kenya being a signatory to the International Convention for the Protection of All Persons from Enforced Disappearance, which obligates states to criminalise the practice under domestic law. More than two years after Parliament was petitioned to enact such legislation, the process appears to have stalled.

Neither the Attorney General’s office nor Parliament offered a clear explanation when contacted by the Star on the progress made so far. Efforts to enact the law have largely come to naught, with a multi-agency process meant to lay the groundwork for reforms seemingly stuck in limbo.

In April 2024, the National Assembly adopted recommendations by its Public Petitions Committee following consideration of a petition seeking legislation on enforced disappearances.

The committee endorsed a proposal from the Office of the Attorney General and Department of Justice to establish a multi-agency committee to examine gaps in Kenya’s legal framework and recommend reforms.

The team was expected to review existing laws, identify legislative shortcomings and propose measures to align Kenyan law with international standards, particularly the International Convention for the Protection of All Persons from Enforced Disappearance.

Parliament further recommended that upon conclusion of the exercise, the Attorney General review the statute book and present the necessary legislative amendments to the House.

The process was expected to be completed within six months. That deadline lapsed in October last year. Attorney General Dorcas Oduor did not respond to inquiries from the Star on whether the committee was ever constituted and, if so, what progress it has made.

The same was true of the Justice and Legal Affairs Committee (JLAC), which did not respond to questions on whether it had received any report from the Attorney General arising from the House resolution.

The proposed committee was to bring together representatives from the Attorney General’s office, the Ministry of Interior, the National Police Service, the Independent Policing Oversight Authority, the Office of the Director of Public Prosecutions, the Kenya National Commission on Human Rights and the Judiciary.

An independent search by the Star revealed that no standalone bill on enforced disappearances currently features among legislative proposals before Parliament.

Even amendments to existing laws identified by MPs as potential vehicles for reform have yet to materialise. The Public Petitions Committee had proposed either a standalone law on protection from enforced disappearance or amendments to statutes including the Penal Code, Criminal Procedure Code, Prevention of Torture Act, Persons Deprived of Liberty Act and the National Coroners Service Act. However, amendments currently before Parliament to the National Coroners Service Act do not address the issue.

The legislative push originated from a 2023 petition filed by scholar and human rights advocate Dr Annette Mbogho, who urged Parliament to criminalise enforced disappearances through dedicated legislation.

In submissions to MPs, Mbogho argued that Kenya lacked a legal framework specifically addressing enforced disappearance despite its obligations under international law.

The petition attracted support from a coalition of rights organisations including the Kenya National Commission on Human Rights (KNCHR), the Law Society of Kenya (LSK), the International Commission of Jurists-Kenya (ICJ-Kenya), Muslims for Human Rights (Muhuri) and Haki Africa.

The organisations told MPs that families of victims often face immense obstacles in their pursuit of justice because enforced disappearance is not recognised as a distinct offence under Kenyan law.

KNCHR argued that enforced disappearance constitutes a continuing violation of rights, leaving families trapped in uncertainty over the fate and whereabouts of their loved ones.

LSK urged Parliament to domesticate Kenya’s obligations under the international convention, while ICJ-Kenya maintained that existing criminal laws were inadequate to address disappearances involving state actors.

Muhuri and Haki Africa warned that the absence of a dedicated legal framework had fostered impunity and weakened accountability in cases involving alleged disappearances.

After considering the submissions, MPs agreed that significant gaps existed within Kenya’s legal framework. However, they stopped short of recommending immediate enactment of a standalone law and instead adopted the Attorney General’s proposal for a comprehensive review through the multi-agency committee.

More than a year later, there is little evidence of progress. The Attorney General’s office has not publicly disclosed whether the committee was formed, who sits on it or whether it has completed its assignment.

Similarly, Parliament has not indicated whether it has received any report arising from the process. The delay comes amid growing concern over alleged abductions and disappearances in the wake of anti-government protests and online criticism of public officials.

According to the Missing Voices Annual Report 2024, cases of enforced disappearances rose by 450 per cent, from 10 cases in 2023 to 55 in 2024. Nairobi recorded the highest number of cases, followed by Kiambu and Migori counties.

KNCHR has separately documented 82 cases of enforced disappearances since June 2024, with at least 29 people still unaccounted for. Rights groups have repeatedly accused security agencies of operating outside the law, allegations authorities have consistently denied. Many of the cases documented by KNCHR remain unresolved.

Families often spend years moving between police stations, courtrooms and government offices in search of information, with many never learning what happened to their loved ones. For families such as Baru’s, the legislative delays only deepen the uncertainty. Nearly a decade after he vanished, relatives are still waiting for answers.

For Sonch’s family, six years have passed without closure. Their stories are only a glimpse into a much larger crisis involving dozens of families whose cases remain trapped in investigations that have yielded little or no progress.

With the six-month deadline long expired and no public report in sight, questions remain over whether the multi-agency process ever got off the ground and whether the promised legal reforms will ever materialise.

As the wait drags on, families continue searching for answers while the law meant to protect them remains missing too.