That a man who has just been freed by a court can be kidnapped by heavily armed men in one of the most secure neighbourhoods in the city and just metres from the headquarters of the Anti-Terrorism Police Unit (ATPU), speaks volumes on the schemes being employed in fighting al-Shabaab and other groups.
As we start the tenth year since Kenya Defence Forces soldiers (KDF) crossed into Somalia, the abduction of Mr Liban Abdulle Omar has once again brought to light the issue of forced disappearances.
It is more than a week since Mr Omar, one of the suspects in the 2013 bloody Westgate siege, was kidnapped by hooded men on his way home after being cleared by police.
“They were not very young. We demanded their identification and they said they were security agents. They went for Omar, threw him into the boot of their car and sped away,” Omar’s sister Sahra said about the abduction that took place next to KCB Towers in Upper Hill.
Ideally, investigations about a kidnap should begin from the scene of crime.
Additionally, almost all buildings in the area have cameras at their entrances. Upper Hill also hosts a number of foreign missions.
With all this security, it would not have been difficult to know who kidnapped Mr Omar or the vehicle used by the abductors.
No details have been given about the registration of the vehicle. The only thing the family knows is that it was a Subaru.
Charging someone with terrorism and proving it in court has been one of the biggest headaches for police and prosecutors. This is because of the secretive nature of these groups.
Al-Shabaab and other terrorist organisations have no formal structures through which their activities can be tracked.
Once one denies being a member of such a group, the prosecution faces the uphill task in proving the link. Consequently, a majority of these people are either acquitted or the cases facing them dismissed.
Once freed, their safety is not guaranteed. Like similar cases before, the government has not said anything about Mr Omar’s abduction.
Mr Omar’s lawyer Mbugua Mureithi said the family has been in touch with relatives in Somalia who have not seen or heard from him.
“I have talked to members of his family. They say they have left everything to God. They have also not heard from the police,” Mr Mureithi told the Saturday Nation.
The family’s hopes rebound yesterday on learning that Director of Public Prosecutions (DPP) Noordin Haji would appeal Mr Omar’s acquittal.
Mr Omar had been in and out of court for seven years before being freed by the court. Should the DPP appeal, he will be ordered to produce him in court.
State prosecutor Edwin Okello has written to the court deputy registrar saying the DPP’s office will be challenging the acquittal at the High Court, even as two other individuals convicted of the 2013 attack await sentencing on October 22.
Mr Mureithi said it is surprising that the State wants to launch an appeal when Mr Omar’s whereabouts are not known.
“He must be produced in court during the proceedings. Mr Haji’s office knows where my client is being held,” the lawyer said.
In January 2018, the court released the men who had been accused of carrying out an attack at Jomo Kenyatta International Airport.
The prosecution said Mr Hassan Abdi Mohamud, Mr Mohammed Osman Ali alias Modika, Mr Ilyas Yusuf Warsame and Mr Garad Hassan Fer Ali were responsible for the 2014 blaze at the airport.
While setting them free, the magistrate said the evidence by the prosecution could not substantively link the men to the crime.
Once cleared by the court, the four had to seek clearance from the ATPU as the law demands.
Shortly after leaving the ATPU headquarters – the same place Mr Omar went to seek clearance before being kidnapped last week – Mr Modika, Mr Warsame, Mr Ali and Mr Mahmoud were accosted by a group of armed men on in January 22, 2018.
The four eventually resurfaced in Somalia and said they had been illegally deported by Kenyan authorities.
“They called from Mogadishu eight months later,” Mr Mbugua said, and criticised police for disobeying the very law they are expected to enforce.
While some of the disappeared were facing charges in court, others had simply been suspected of being members or having links with terror outfits.
Kenya is a signatory to the International Convention for the Protection of All Persons from Enforced Disappearance.
“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance,” part of the convention says.
Says the Prevention of Torture Act: “Anyone who tortures another person, commits an offence and shall be liable, on conviction to imprisonment for a term not exceeding 25 years. If a victim dies as a result of torture, the person is liable, on conviction, to life imprisonment.”
Despite the seriousness attached to the law with regard to forced disappearances and torture, more terrorist suspects are still vanishing.
Even more disturbing is the fact that some of these disappearances happen when the victims are picked up by people who identify themselves as security agents.
Haki Africa, a non-governmental organisation that promotes human rights, has documented at least 20 forced disappearances since beginning of the year. Mr Islam Hassan was taken from his home in Likoni, Mombasa last month.
According to Mr Hassan’s family, the 37-year-old was taken from his home by armed men who identified themselves as police officers on the morning of September 21. The men had no uniform.
“Mr Hassan has no criminal record and is married. His disappearance has left the family in a state of despair,” Haki Africa said in a statement.
“We call upon the Office of the DPP to intervene in the escalating forced disappearance cases in the Coast.”
Such pleas by families and rights groups have become common as the war on al-Shabaab in Somalia enters its tenth year.
While there is no direct evidence that the government is involved in the disappearances, families and activists point fingers at the State.
Since 2009, Kenyan and international rights groups have documented more than 300 cases of individuals who disappeared while being held by security agencies.
Once you disappear, you can be found alive, dead or your kin may never seeing you again.
