Amnesty International, National Police Service Unveil Joint Strategy to Strengthen Human Rights Prosecutions

Recent allegations of arbitrary arrests, enforced disappearances, and torture of activists following demonstrations in Kenya highlight a persistent challenge to the rule of law and human rights. These incidents, where individuals were reportedly found by roadsides after going missing and subjected to ill-treatment in custody, underscore systemic failures in state adherence to constitutional safeguards and international obligations. The legal framework in Kenya, including the Constitution and the Prevention of Torture Act, unequivocally prohibits such abuses, placing a clear duty on the state to prevent, investigate, and punish perpetrators. This article examines the legal implications of these allegations, emphasizing the critical need for accountability, robust oversight, and judicial enforcement to protect fundamental freedoms and restore public trust in law enforcement.

Kenya's democratic journey has frequently been punctuated by tensions between citizens exercising their constitutional right to protest and state security agencies tasked with maintaining order. In recent times, a disturbing pattern has emerged where individuals arrested during demonstrations are reported missing, only to resurface later, often alleging severe beatings and torture while in custody. The recent report by Amnesty International, detailing activists found by roadsides after going missing and alleging torture, brings into sharp focus the precarious state of human rights and due process in the country. This recurring issue not only erodes public confidence in the National Police Service but also poses a significant challenge to Kenya's commitment to its own progressive Constitution and international human rights obligations.

The legal landscape governing arrest, detention, and treatment of individuals in Kenya is robust, anchored primarily in the Constitution of Kenya, 2010. Chapter Four, the Bill of Rights, provides extensive protections. Article 29 guarantees every person the right to freedom and security, explicitly prohibiting torture, cruel, inhuman, or degrading treatment or punishment, and arbitrary deprivation of liberty. This prohibition is non-derogable, meaning it cannot be limited under any circumstances, including states of emergency. Article 49 further outlines the rights of arrested persons, including the right to be informed promptly of the reason for arrest, the right to remain silent, the right to communicate with an advocate, and the right to be brought before a court within 24 hours of arrest.

Complementing the constitutional provisions, Kenya enacted the Prevention of Torture Act, 2017 (Act No. 12 of 2017), which criminalizes torture and provides for reparations to victims. This Act gives domestic effect to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which Kenya acceded to in 1997. Kenya is also a State Party to the International Covenant on Civil and Political Rights (ICCPR), which further reinforces the prohibition of torture and guarantees due process rights. The Independent Policing Oversight Authority (IPOA) Act, 2011 (Act No. 35 of 2011), established IPOA to provide civilian oversight over the National Police Service, investigating deaths, serious injuries, and criminal offenses involving police officers.

The alleged actions of arresting activists, holding them incommunicado, and subjecting them to torture constitute grave violations of multiple constitutional and international human rights provisions. The disappearance of individuals after arrest directly contravenes Article 49(1)(a) of the Constitution, which mandates that an arrested person be informed of the reason for their arrest, and Article 49(1)(f), requiring presentation before a court within 24 hours. Such actions also amount to enforced disappearances, a practice defined under international law as deprivation of liberty by state agents followed by a refusal to acknowledge the detention or concealment of the person's whereabouts. While Kenya has signed the International Convention for the Protection of All Persons from Enforced Disappearance, it has yet to ratify it, leaving a gap in its domestic legal framework specifically criminalizing this egregious act.

The allegations of torture and ill-treatment directly violate Article 29 of the Constitution and the Prevention of Torture Act, 2017. The Act defines torture broadly to include severe physical or mental pain intentionally inflicted by a public officer for purposes such as obtaining a confession or punishment. The state has an absolute obligation to prevent such acts and to investigate and prosecute those responsible. The Independent Policing Oversight Authority (IPOA) is mandated to investigate such complaints and recommend prosecution or disciplinary action. However, IPOA often faces challenges, including non-cooperation from the National Police Service and the Office of the Director of Public Prosecutions (ODPP), which can hinder effective accountability.

Despite these challenges, the Kenyan judiciary has demonstrated a commitment to upholding human rights. Courts have, in several instances, awarded significant compensation to victims of police brutality and torture, affirming the state's liability for such abuses. For example, the High Court awarded Ksh. 25 million to five victims of police brutality in 2017 and Ksh. 38.6 million to Kisumu protest victims in 2026, explicitly recognizing violations of Articles 26, 27, 28, and 29 of the Constitution. Furthermore, there have been landmark convictions, such as the jailing of two police officers for 35 years for the torture and murder of a man in custody in 2025, signaling a judicial stance against impunity. These judgments underscore that while systemic issues persist, legal avenues for redress and accountability are available and increasingly being utilized.

The alleged arbitrary arrests, enforced disappearances, and torture of activists in Kenya represent a serious affront to the constitutional order and international human rights norms. These incidents not only inflict severe suffering on individuals but also undermine the foundational principles of justice, accountability, and the rule of law. While Kenya possesses a robust legal framework, including a progressive Constitution and specific anti-torture legislation, the persistent allegations highlight a critical gap in implementation and enforcement.

For legal practitioners, these developments underscore the imperative of vigilant advocacy. Attorneys representing victims of such abuses must continue to pursue constitutional petitions for the enforcement of rights, seek civil damages for compensation, and lodge formal complaints with oversight bodies like IPOA and the Kenya National Commission on Human Rights. It is crucial for the state to strengthen oversight mechanisms, ensure prompt and impartial investigations, and guarantee the prosecution of all perpetrators, irrespective of rank. Without unwavering commitment to accountability, the cycle of impunity will persist, further eroding public trust and Kenya's standing as a nation committed to human rights.