Without a trace: Probe gaps, State silence shroud missing persons cases

The recent dismissal of a habeas corpus application by the High Court in Kenya, concerning the disappearance of former air force officer Mwenda Mbijiwe, underscores significant challenges in addressing missing persons cases, particularly those with suspected state involvement. Five years after Mbijiwe vanished, the court ruled that the petitioners failed to meet the legal threshold for habeas corpus, specifically by not providing sufficient proof that he was in state custody. This decision highlights the arduous evidentiary burden placed on families, the limitations of existing legal remedies in the face of state silence, and the systemic gaps in investigating enforced disappearances. The ruling brings to the fore the urgent need for robust legal reforms, including the domestication of international instruments, to ensure state accountability and provide effective recourse for victims and their families in Kenya.

The protracted disappearance of Mwenda Mbijiwe, a former Kenya Air Force officer and security analyst, culminated in a recent High Court decision that has sent ripples through Kenya's legal and human rights landscape. Five years after Mbijiwe was last seen, his family's application for an order of habeas corpus, seeking to compel the State to produce him, was dismissed. This ruling, delivered by Justice Martin Muya, found that while there was evidence of Mbijiwe's disappearance and reports made to the police, it was insufficient to establish that he was in state custody, which is a critical prerequisite for granting habeas corpus orders.

This judicial pronouncement is not merely a setback for the Mbijiwe family but illuminates a broader, deeply troubling issue in Kenya: the pervasive challenge of enforced disappearances and the difficulties families face in seeking legal redress. The case underscores the systemic gaps in investigative processes, the high evidentiary bar for proving state culpability, and the perceived impunity that often shrouds such incidents. This article will delve into the legal framework surrounding missing persons and habeas corpus in Kenya, analyze the implications of the Mbijiwe ruling, and discuss the urgent need for legislative and procedural reforms to enhance state accountability and provide effective remedies for victims of enforced disappearances.

The right to liberty and security of the person is a fundamental entitlement enshrined in Article 29 of the Constitution of Kenya, 2010, which prohibits arbitrary deprivation of freedom and detention without just cause. Furthermore, Article 25 of the Constitution declares the right to an order of habeas corpus as non-derogable, meaning it cannot be limited even during a state of emergency. Article 51(2) explicitly guarantees any detained person the right to petition for an order of habeas corpus, allowing individuals to challenge the legality of their detention before a court.

The procedure for applying for directions in the nature of habeas corpus is outlined in Section 389 of the Criminal Procedure Code (Cap 75) and the Criminal Procedure (Directions in the Nature of Habeas Corpus) Rules, 1948. These provisions empower the High Court to direct that any person unlawfully or improperly detained in public or private custody be brought before the court to be dealt with according to law or set at liberty. Despite these robust constitutional and statutory provisions, the practical application of habeas corpus in cases of alleged enforced disappearances often encounters significant hurdles, particularly concerning the burden of proof. Kenya has also signed, but not yet ratified, the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), which would obligate the State to criminalize enforced disappearance and establish mechanisms for investigation and redress.

In cases where a missing person is believed to be dead, the Criminal Procedure Code, specifically Section 386 and 387, provides for police inquiry and magistrate-led inquests into the cause of death, particularly if the death occurred in police or prison custody or under suspicious circumstances. The Kenya National Coroners Service Act, 2017, further establishes a framework for investigating unexplained deaths. However, these mechanisms often fall short in cases of enforced disappearances where there is no body, and state agents are implicated, leading to a persistent lack of accountability and justice for victims and their families.

Justice Martin Muya's ruling in the Mwenda Mbijiwe case hinged on the petitioners' failure to satisfy the legal threshold for a habeas corpus order. The court acknowledged that Mbijiwe disappeared and that reports were made to police stations, but found this insufficient to prove he was in state custody. The judge emphasized that the court's role was limited to assessing whether the requirements for habeas corpus had been met, rather than supervising ongoing investigations. This highlights a critical evidentiary challenge: under Section 107 of the Evidence Act, the burden of proving state custody rests squarely on the petitioner, a task rendered nearly impossible when detentions are secretive or denied by state agents.

The court noted several weaknesses in the petition, including the absence of key testimony from a crucial witness, Edwin Mwangi Macharia, who failed to appear despite being summoned. This absence significantly limited the evidence available to the court to establish a prima facie case of unlawful detention by identifiable authorities. While the judge criticized aspects of the police investigation, including delays in pursuing crucial leads and applications for mobile phone records years after the disappearance, these shortcomings alone were deemed insufficient to justify a finding of illegal detention by the state for the purpose of habeas corpus.

The Mbijiwe ruling underscores a broader systemic issue in Kenya: the lack of a specific domestic legal framework criminalizing enforced disappearances. While the Kenyan Penal Code addresses abduction, kidnapping, and murder, these do not fully capture the unique characteristics and gravity of enforced disappearances, which involve state agents or complicity and a refusal to acknowledge the deprivation of liberty. This legal void means that civil society and families often rely on general human rights provisions and international guidelines, which are difficult to enforce domestically without specific legislation.

Kenya's failure to ratify the International Convention for the Protection of All Persons from Enforced Disappearance, despite signing it in 2007, further exacerbates this problem. Ratification would integrate the Convention into Kenyan law, obligating the State to prevent, investigate, and punish enforced disappearances, and provide reparations to victims. Without this, the existing legal remedies, including habeas corpus, face significant limitations, as they are not specifically tailored to address the complexities of state-sponsored or acquiesced disappearances. The current framework places an almost insurmountable burden on families to prove state involvement, even when there are credible allegations of police or other security agency complicity, as has been documented in numerous other cases of enforced disappearances in Kenya.

The dismissal of the habeas corpus application in the Mwenda Mbijiwe case serves as a stark reminder to legal practitioners of the formidable challenges inherent in pursuing justice for missing persons in Kenya. The ruling highlights that while habeas corpus is a fundamental and non-derogable right, its efficacy in cases of alleged enforced disappearance is severely constrained by the high evidentiary burden to prove direct state custody. Practitioners must therefore advise clients on the critical need for robust, direct evidence linking the disappeared person to state agents, beyond mere suspicion or reports of disappearance, to meet the stringent legal threshold.

This case underscores the urgent need for comprehensive legal and institutional reforms in Kenya. It is imperative that the government moves beyond merely signing to ratify and domesticate the International Convention for the Protection of All Persons from Enforced Disappearance. Enacting specific legislation that criminalizes enforced disappearance, defines it in line with international standards, and establishes clear investigative and accountability mechanisms would significantly strengthen the legal framework. Such reforms would not only provide a clearer path to justice for families but also foster greater state accountability and transparency, thereby upholding the constitutional rights to liberty, security of person, and human dignity for all Kenyans. Until such reforms are implemented, families of missing persons will continue to navigate a legal landscape fraught with gaps and contradictions, often without a trace of their loved ones or the justice they seek.