Deaths and Disappearances Abuses in Counterterrorism Operations in Nairobi and in Northeastern Kenya

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SHAFAQNA – No one here reports to police because they fear for their lives. . . . There are people who have been missing for more than nine months. Some are taken for a few weeks or days for questioning and then returned, so it is a situation that disturbs every Wajir resident. People fear and keep asking themselves who the next victim will be.

-Wajir resident, October 22, 2015

On June 29, 2015, three men went to the home of 45-year-old Farah Ibrahim Korio, an ethnic Somali Kenyan and teacher of Islamic education in Wajir, northeastern Kenya. When they did not find him, they threatened to arrest his wife and five children if they did not disclose his whereabouts. The men had no uniforms that could have identified them as police men, neither did they reveal their identity nor divulge why they were looking for Farah. They then arrested and whisked away the shopkeeper at a nearby shop, mistaking him for Farah, but dumped him on the road miles away when they realized their error. The men later directed the area chief to find Farah for them.

When Farah learned that some unknown people were looking for him, he reported the matter at the Wajir police station. When his family approached Wajir county police commander on his whereabouts, he said he did not have any categorical information about who was looking for Farah, as there were many officers from different Kenyan security agencies in Wajir, many of whom were not under his command, including the police’s anti-terrorism unit (ATPU), military intelligence and administration police.

Farah agreed to meet the area chief at Wajir police station the next day and shortly after arriving, and within minutes of the area chief’s arrival at the station, the same three men drove into the police compound, according to witnesses. A uniformed police officer told some of Farah’s family members that the three men were military intelligence officers. The family briefly went to pray just outside the police station as the officers talked to Farah. That was the last time Farah’s family saw him.

Back at the police station, the police informed them that the three officers had taken Farah to the ATPU offices nearby. The ATPU denied to the family having seen him and suggested that he might be in Wajir military camp.

Farah’s family has been searching for him for over a year. He is one of at least 34 people, including two women, according to Human Rights Watch research, taken into custody by security forces during counterterrorism operations in northeastern Kenya between 2013 and 2015, whose whereabouts remain unknown. Families of those missing have searched detention facilities far and wide, sought help from political and religious leaders, complained to the state-funded Kenya National Commission on Human Rights and in some cases, boldly taken to social media in attempts to locate their loved ones. Kenya authorities have denied knowledge of the missing people, failed to acknowledge credible evidence of abuses during counterterrorism operations, failed to investigate the allegations and in some instances, intimidate and harass those seeking information and accountability.

Human Rights Watch believes that these 34 people are victims of enforced disappearance, defined in international law as any deprivation of liberty by state agents followed by the state’s refusal to acknowledge the detention or concealing of the fate or whereabouts of the person. In addition, bodies of at least 11 people previously arrested by state agents have been found in the last two years, in some instances far from the location of their arrest. As far as Human Rights Watch is aware, police have not meaningfully investigated these deaths. A body was exhumed in Mandera in December 2015 at the initiative of area leaders and nongovernmental organizations and even then, there has been no inquest, as required by Kenyan law.

Witness statements suggest the 34 believed to have been disappeared and the 11 killed, predominantly ethnic Somali Kenyans, may have been under investigation for alleged links to or knowledge of Al-Shabab, the Somalia-based Islamist armed group. The group has carried out numerous deadly attacks on civilians in Kenya in recent years, including the brutal killing of at least 142 students at Garissa University in Garissa county, northeastern Kenya in April 2015. Such attacks are criminal and unjustifiable at all times, regardless of motivation.

Governments have a duty under international human rights law to take all reasonable steps to protect people within their jurisdictions from acts of violence. Governments also have a duty to ensure that alleged abuses by security forces result in impartial investigations into abuses by security forces, which identify those responsible, and suspects are prosecuted before independent courts. Under international law, all suspects, including those linked to terrorism, are supposed to receive due process. These obligations require ensuring fairness and due process in investigations and prosecutions, as well as humane treatment of those in custody.

This report documents abuses involving law enforcement agencies related to operations aimed at thwarting the threat posed by Al-Shabab in counties in northeastern Kenya between December 2013 and December 2015.

Contrary to Kenya’s obligations under international human rights law, the operations of security agencies have sometimes, been marked by killings, enforced disappearances, torture and arbitrary arrests of ethnic Somali Kenyans.

For this report, Human Rights Watch interviewed over 117 people in Garissa county in September, Wajir county in October and Mandera county in December 2015, as well as Nairobi in July and November 2015 and January 2016, and spoke to victims of arbitrary arrests, illegal detentions and mistreatment, witnesses to arrests and raids, security officials, including KDF and police officers with inside knowledge of the operations, political leaders in the national and county government, human rights defenders, clerics and journalists.

This report documents how security officers from various units raided homes and compounds, business premises and schools to arrest individuals and conduct searches, sometimes in the middle of the night. Some of those arrested have never been seen again. The security officers who carried out arrests or searches documented in this report were, in most cases, not uniformed and did not have identification insignia and failed to identify themselves, making it difficult for families to trace their relatives or seek justice. In some cases, security officers wore balaclavas or masks during arrests and, in a majority of cases they blindfolded those they detained for long periods, further compounding problems of identifying units or individual officers.

Relatives and friends of victims believed the individuals behind these operations are Kenyan security forces because in a few instances, they wore uniforms associated with Kenyan security – either police or military – while in others, even when they were not uniformed, they carried identity cards from either police or military or drove vehicles with official government insignia. In a few cases documented by Human Rights Watch, arresting officers were spotted driving with arrestees into police stations or military bases/camps. The targets of these operations are most often males between 20 and 40 years old and some are either imams or Islamic education teachers (also locally known as dugsi or duksi in Somali) and their students, or have some responsibilities in their local mosques.

In all of the cases documented in this report, families of those arrested and witnesses of operations said that security officers did not present a search or arrest warrant. Although Kenya’s Criminal Procedure Act provides for arrest without a warrant, it requires police to bring any such suspect to court within 24 hours. Officers have regularly failed to present suspects in court in a timely way during the ongoing law enforcement operations in the northeast.

Families have sought in vain for information regarding the whereabouts of those arrested. In some cases, families have filed habeas corpus petitions, seeking a court order to compel the state to provide information. Each time, even where there is a court order, officials have denied any knowledge of the detainees’ whereabouts.

In the course of research, Human Rights Watch wrote letters to the Kenyan police, military, wildlife service, and each agencies’ respective ministers, querying the whereabouts and well-being of those who had been arrested and providing approximate dates and locations of where each person was last seen. The wildlife service replied and denied any knowledge of the arrestees. No other government official responded to the queries.

Past research by Human Rights Watch and Kenyan human rights non-governmental organizations over the past four years has implicated the ATPU and Kenya’s anti-riot police, known as the General Service Unit (GSU), in killings and disappearances in Nairobi and at the Kenyan coast. Since Al-Shabab attacks escalated in late 2014 in the northeastern region, officers from numerous security units – the Kenya Defense Forces, Kenya police, National Intelligence Service and Kenya Wildlife Service (KWS) rangers – have deployed their forces in the region. Journalists and local politicians have raised numerous allegations of enforced disappearances, killings, arbitrary arrests, and unidentified bodies found in shallow graves, according to media reports and witness accounts.

The Kenyan government should urgently address allegations of abuses in counterterrorism operations, provide information regarding the identities, and whereabouts of people arrested in these operations, and ensure basic due process rights for all individuals arrested or currently in custody.

Kenya should comply with the provisions of its own constitution and fulfil its obligations under international human rights law. The government should ensure that the law is followed during all operations and that members of the military and Kenya Wildlife Service, who have no legal mandate to make arrests, do not arrest and detain people. The government also should ensure that all those arrested by police are properly registered in police records and detained in police stations, not in military facilities or the bush as has sometimes occurred.

President Uhuru Kenyatta should publicly acknowledge the scope and gravity of the numerous allegations and condemn any such abuses by security forces. He should direct security forces to comply with international human rights law, end enforced disappearances, extrajudicial killings and torture, and direct the security agencies and prosecutors to take all necessary steps to hold those responsible to account. Furthermore, he should establish an independent and credible multi-agency commission to investigate and report on the scope of abuses in counterterrorism operations country-wide.

Despite numerous reports of serious abuses from diverse sources over several years, Kenya remains a critical partner in counterterrorism efforts in East Africa, and the recipient of significant donor assistance from the United States, the United Kingdom and to a lesser extent, the European Union, among others. Human Rights Watch urges Kenya’s international partners to publicly denounce these abuses, call for investigations and accountability, and to ensure any support to Kenya’s security forces – including training, logistics, and other material support – does not go to units or commanders implicated in enforced disappearances, extrajudicial killings or torture. Donors should consistently press for credible investigations and prosecutions of perpetrators, and consider providing forensic support for such investigations.

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