The case of ‘forced disappearance’ isn’t as simple as some politicians think

On October 17, 1998, Gen Augusto Jose Ramon Pinochet Ugarte, the former president of the ruling junta of Chile, was arrested by two London plainclothes police officers at a London clinic where he was undergoing treatment for a back complaint. The arrest was made following an international arrest warrant issued by famed Spanish magistrates Manuel Garcia Castellon and Baltasar Garzon. He was charged with systematic torture, murder, illegal detentions, extra judicial executions and forced disappearances during his rule. More than 1,000 people were said to have disappeared at the hands of police and the military.

Gen Pinochet launched a 16-month challenge against the extradition request. The cases went through the entire British legal system, and ultimately to the judicial committee of the House of Lords, the highest Court in the United Kingdom. The law lords ruled that Gen Pinochet had immunity from prosecution by virtue of being a former head of State. They ruled also that he could be tried outside Chile even when no charges had been preferred against him in his home country.

In fact, at the time of the UK decision, other countries had indicated that they also wanted to try him. They included Italy, Luxembourg, Norway, Sweden, Belgium, France, Switzerland and the US. Gen Pinochet was saved from extradition by British home secretary Jack Straw after it was found that he was not medically fit to stand trial.

The case popularised a growing doctrine in international law called the Principle of Universal Jurisdiction. Under this principle, some crimes are so egregious that they constitute crimes against humanity, and the perpetrators may be tried in any court in the world. States also claim criminal jurisdiction over people whose crimes are committed in their home countries, regardless of their nationality, residence, official status or relation with the prosecuting country.

This principle is said to be the most important development in international criminal law after the Nuremberg trials of Nazi war criminals. Of interest to us in Kenya is that Gen Pinochet was being indicted for, among other offences, “forced disappearances” during his regime. It was alleged that 1,198 people disappeared. Both the Spanish and English courts agreed that this was a crime for which he could be tried by any country. The crime of “forced disappearance” has been receiving continuous international attention, most notably since the UN Convention Against Torture in 1984. Under this convention, however, “forced disappearance” was viewed only through the very general definition of “torture and inhuman and degrading treatment”.

But in the Rome statute of 1998 – the common name for the International Criminal Court statutes – “forced disappearance” is recognised as a distinct international crime for which one could be tried at The Hague. However, the seriousness of the matter does not end there.

In 1996, the UN General Assembly passed the International Convention for the Protection of all Persons from Enforced Disappearance. Article 1 makes the unequivocal declaration: “No one shall be subjected to enforced disappearance” or “enforced disappearance”. So when the UN secretary-general sent Prof Philip Alston to Kenya to investigate whether the government has been implementing a policy of “enforced disappearance”, senior government officials should have seen the gravity of the situation that was building up.

Instead, they laughed and dismissed the harmless-looking foreigner as another irritating diplomat. The don was to report that when he asked the police commissioner and senior officers about the dreaded Kwekwe Squad they laughed and joked and said they hadn’t heard of anything of the sort. Little did they know how close they are to being charged internationally with “enforced disappearance”. The government’s ignorance of the gravity of the situation was manifested by the reckless cavalier attitude of its spokesman, Dr Alfred Mutua. When i listened to him dismiss Prof Alston, I wondered remembering his dismissal of Kenyan journalists last year.

For one, Prof Alston is one of the world’s most respected human rights lawyers. He has been a consultant for many years in different capacities for the UN with exceptional distinction. In 1989, the General Assembly asked the secretary-general to specifically appoint Prof Alston as an independent expert on the effectiveness of human rights treaty organisations. Kenya hosts one of the UN’s agencies, and Nairobi is the headquarters of the UN Environment Programme. Hundreds of senior UN employees and consultants live in Kenya. Prof Alston therefore had the benefit of independent intelligence of international workers who have been witnessing first hand events in Kenya.

He is therefore not a guy who has just walked in from the rain as Dr. Mutua tried to paint him. Neither was his presence here hostile. As the UN special rapporteur on extra-judicial executions, a position he has held since 2004, he cannot conduct an investigation without the government’s consent.

The rules governing Professor Alston require that he send a letter to the government requesting to come to the country to conduct. When the government accepts, it formally invites him. He was therefore in Kenya at the government’s invitation.

The rules then mandate him to “examine, monitor, advise and publicly report” on the human rights situation in a specific country.

Having invited the UN official, the government should have treated him as an ally and clearly indicated its willingness to cooperate on the issues in the report. In this regard, Justice Minister Martha Karua showed surprising diplomatic skills in the way she responded to the Alston report. But seeing the split in government over the issue, the official government position depends on one man – President Kibaki. And if I were him, I would not listen to the sycophantic pronunciations of government officials dismissing Prof Alston.

The President must consider the fact that Prof Alston’s word against the government and its senior official is a sentence already, and that the report will not be one of the local findings of judicial commissions, which have perfected the art of dismissing and ignoring. This is not a report to be discussed by the Cabinet and presented to Parliament where it can be shot down.

The report will be presented to the various UN organs where, short of a veto by permanent member of the Security Council, it will be adopted. And because of our promiscuous foreign policy, we are not likely to persuade any permanent member to exercise its veto power on our behalf.

Once the report is issued to the international community, the statutes of the International Court of Justice will come into play. Since “enforced disappearances” are an international crime, the International Criminal Court at The Hague may start investigating Kenyan government officials responsible for them.

It will come as a shock to government that the “enforced disappearances” in Kenya will attract faster attention at The Hague than the post-election violence. This is because the problem with Kenya is not that there are rogues ready to kill people indiscriminately. The problem is that there is impunity, which has become almost official government policy.  There is no better way for The Hague to end that impunity than first making the government accountable.

The only question The Hague will ask is: Are these enforced disappearances a systemic government policy? If they think it is, then the real games will begin.

Worse than The Hague is the Principle of Universal Jurisdiction. The government believes that it has enemies in the West, and some ministers have openly said so. It will find out then. Any country in the world has a right under international law to arrest and try any government official it believes is responsible for the “enforced disappearances” in Kenya. This is why President Omar al-Bashir of Sudan doesn’t travel that much anymore. And Rwanda knows how real this right is after its minister was arrested in Germany.

And who is liable to arrest? The Rome statute says that any military commander shall be criminally responsible for the crimes committed by forces under his control and command.

Major-Gen Ali is the Police Commissioner and Gen Jeremiah Kianga the Chief of General Staff. And President Kibaki is the Commander-in-Chief. Prof Alston has specifically asked the President to investigate and prosecute the culprits and fire the Police Chief and Attorney-General Amos Wako. Anyone telling the President not to act is his worst enemy. They are condemning him to a fate similar to Gen Augusto Pinochet.

On June 4, 2007, the then minister for Internal Security, Mr. John Michuki, issued a statement saying: “We will straighten them and wipe them out. I cannot tell you today where those who have been arrested in connection with the recent killings are. What you will be hearing is that there will be a funeral tomorrow.”

His statement raised international outrage and led to Amnesty International issuing a statement entitled, Police Actions Against Mungiki Must Comply to Kenya’s Obligations Under International Human Rights Law.

In the statement issued on June 11, 2007, AI said Mr. Michuki’s utterance could be construed to be an order to police to shoot to kill any Mungiki follower.

The issue before the President is not one for the flippant opinions of ignorant politicians and advisers.