Kenya: Enforced disappearances by anti-terrorism unit

Human Rights Watch (HRW) has gathered strong evidence that Kenya’s Anti-Terrorism Police Unit (ATPU) has carried out enforced disappearances, extrajudicial killings, arbitrary arrests, and mistreatment of terrorism suspects while in detention. Though terrorism is a widespread in Kenya, the abuses by the ATPU undermine the country’s justice system and the legitimacy of its security forces.

The ATPU was created in 2003 in response to the 1998 attacks on the US embassy and the 2002 attack on an Israeli owned Mombasa hotel. Since the ATPU’s inception, terrorism has been on the rise in Kenya. The US embassy documented at least 70 grenade and gun attacks in Kenya’s major cities between 2011 and 2014. The Kenyan Government’s counterterrorism efforts were again amplified after the attack on Westgate Mall in Nairobi last year. The ATPU is deployed to track down terrorism suspects, but rather than bringing them under the rule of law, this unit is both disappearing and killing suspects. An anonymous member of the ATPU described the methods the unit employs: “The justice system in Kenya is not favorable to the work of the police. So we opt to eliminate them [suspects]. We identify you, we gun you down in front of your family, and we begin with the leaders.”

HRW has documented at least 10 disappearances by the ATPU in Nairobi since 2011. The victims were young men, in their teens to mid-twenties, all of whom were either charged with crimes related to terrorist activities, were being investigated by the ATPU, or had been acquitted. Family members of the victims describe how the disappeared had received death threats by the ATPU, and witnesses of the disappearances all claim to have recognized ATPU members, even though some were wearing civilian clothing. In the cases of 4 of the disappeared, the court proceedings for the men’s alleged crimes continued in their absence, with the prosecutor claiming that the accused had fled the country to escape prosecution. Authorities did not further investigate the cases and did not provide sufficient documentation to substantiate these claims, according to one defense lawyer of the disappeared men.

This is not the first time that the ATPU has been accused of disappearances and other abuses. In 2013, the Open Society Justice Initiative and a Mombasa-based nongovernmental organization, Muslims for Human Rights (MUHURI), published a report documenting human rights abuses by the ATPU that violate international, regional, and domestic law. The report also provides an analysis of Kenya’s Prevention of Terrorism Act (2012), which contains “vague definitions of terrorism, creates terrorist blacklists with inadequate due process guarantees, and expands police powers, all of which can be used both against terrorist suspects and as a tool against political opponents, civil society, religious and ethnic groups, minorities, and common criminals” (p. 11). The report analyzes how the ATPU’s efforts have actually been counterproductive to stifling domestic terrorism. Since Kenya’s 2011 invasion of Somalia to target al-Shabaab, there has been a backlash of terrorist activities because the terrorist organizations point to abuses committed by the ATPU to justify their activities, making it easier to recruit new members. According to allAfrica.com, new interviews conducted by the Institute for Security Studies reveal how members of al-Shabaab were “pushed” to join due to the collective punishment and injustices committed by Kenyan security forces.

"We're Tired of Taking You to the Court" report by Open Society Foundations and MUHURI

“We’re Tired of Taking You to the Court” report by Open Society Foundations and MUHURI

The Kenyan government needs to restrict the unlawful tactics that its security forces employ for counterterrorism purposes. There is a long history of abuses linked to Kenya’s security forces, not limited to the ATPU. The Kenya National Commission on Human Rights (KNCHR) documented extra-judicial killings and enforced disappearances committed by the Kenya Police as a response to criminal activities by the illegal Mungiki gang. Moreover, Kenya’s courts need to be an effective method for trying terrorist suspects in order for security forces to perceive the justice system as a legitimate option for dealing with criminals. The Kenyan government should conduct thorough investigations into the human rights abuses committed by its police forces in addition to ratifying the International Convention for the Protection of All Persons from Enforced Disappearance to make these crimes illegal under domestic law.