Enforced disappearance: Why the law is missing in action

By Coletta Wanjohi

In March 2023, a worried husband and father walked into a police station in Kenya to report his wife and daughter's mysterious disappearance after joining what he said was a church congregation.

The complainant told police he last saw the mother-daughter pair before they travelled out of Nairobi to a remote forested location for the religious event, organised by a pastor later identified as Paul Mackenzie.

The search for the missing duo led investigators to the Shakahola forest, nested on the edge of the sprawling Tsavo East National Park.

Mackenzie, it transpired, ran a doomsday cult allegedly responsible for hundreds of others vanishing without a trace. His 800-acre range inside the forest had mass graves from which 400-odd bodies were exhumed.

Some grieving families have since found closure in identifying the remains of loved ones through DNA testing and completing their last rites. Scores of others still await news of their missing family members.

Mackenzie remains in custody, fighting a potentially long-drawn legal battle with ramifications that go beyond the horrors of Shakahola.

Ramadhan Rajab, senior campaigner for freedom of expression and civic space at Amnesty International Kenya, sees legal impediments to dealing with such cases.

"Kenya is still to ratify the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). Hence, it gets tricky to prosecute or hold people accountable for cases of forced disappearance," he tells TRT Afrika.

"In Kenya, enforced disappearance isn't legally a crime for which you can be held accountable until the body or remains of the missing person are found. It is seen as distinct from abduction, which is a big problem."

Legal grey zone

The ICPPED was adopted at the United Nations General Assembly in 2006 and came into force on December 23, 2010. The convention states that "each state party shall take the necessary measures to hold criminally responsible at least any person who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance".

The African countries that have ratified it include Burkina Faso, Côte d'Ivoire, Gabon, Gambia, Malawi, Mali, Mauritania, Nigeria, Niger, Senegal, South Africa, Sudan and Zambia.

In Kenya, successive governments have been blamed for not strengthening legal provisions for speedy prosecution in cases involving enforced disappearance other than proven abductions.

"Without any fear of contradiction, there shall never again be extrajudicial killings," President William Ruto said during a church service on April 21 this year.

Less than three months later, on July 12, the country was thrown into shock when the bodies of six women were found dumped in a landfill in Nairobi, sparking speculation of more cases of enforced disappearance.

Three days later, police arrested a man who they said confessed to killing 42 women. On August 15, he reportedly escaped from a police station where he was in custody.

In Uganda, another East African country still to ratify the ICPPED, Sarah Damulira last saw her husband, John, four years ago.

"We heard he had been picked up. I have been looking for him in prisons and not found a trace," Damulira, who has been forced to bring up seven children all by herself, tells TRT Afrika.

John went missing in November 2020, coinciding with Ugandan singer-parliamentarian Robert Kyagulanyi, aka Bobi Wine, mounting a campaign to oust President Yoweri Museveni.

Rights groups suspect John's disappearance, one of several such unsolved cases in Uganda, is somehow linked to the politics of the time.

Widespread problem

According to data from the International Committee of the Red Cross, over 71,000 people across Africa are registered as missing, a 75% jump from the figure recorded in 2019.

Some factors responsible for this are protracted armed conflicts in parts of the continent, natural disasters, and climate change.

Many people, especially from the Horn of Africa countries, have disappeared while risking illegal journeys to the various countries in search of what they believe are greener pastures.

"The issue of people going missing, including enforced disappearance, remains one of the most damaging and prolonged humanitarian consequences of armed conflicts and other situations of violence. This is particularly distressing for loved ones, whether a waiting wife or a heartbroken son," says Patrick Youssef, regional director for the Red Cross in Africa.

The African Commission on Human and Peoples' Rights has joined other international agencies to call for global action to end this scourge.

"We renew our solidarity with victims of enforced disappearance, as well as organisations, human rights defenders and lawyers that support them," says a joint statement.

Call to action

As the world marked the International Day of the Victims of Enforced Disappearances on August 30, human rights agencies urged African countries to join the first World Congress on Enforced Disappearances, scheduled for January 15-16, 2025, in Switzerland's Geneva.

The meeting will seek to, among other issues, promote the universal ratification of the ICPPED.

"Ratification of the convention creates room for creating domestic laws to deal with this problem," Ramadhan explains.

"To victims, enforced disappearance is torture and intimidation. To their families, it is traumatic, more so because they never get closure."