Kenya’s failure to investigate allegations of extrajudicial killings and torture during counter-insurgency operations in the Mt Elgon district has landed the country in the East African Court of Justice (EACJ).
The initial substantive hearing of the case, filed in July 2010 by the Independent Medico-Legal Unit (IMLU), an NGO, began in the northern Tanzanian town of Arusha on 31 March, when the Kenyan government challenged the jurisdiction of the court, whose remit covers the treaty establishing the East African Community (EAC).
IMLU contends that Kenya violated provisions of this treaty, notably article 6(d), through its failure to ensure access to justice, uphold human rights and the rule of law.
Attempts to contact Kenya’s counsel about the case were unsuccessful.
The NGO’s suit also names EAC Secretary-General Juma Mwapachu as a respondent, claiming he failed to intervene or respond to the alleged abuses.
The EAC is a trading bloc comprising Burundi, Kenya, Rwanda, Tanzania and Uganda. While the EACJ is not a criminal tribunal, it does have the power to order payment of damages to affected parties.
IMLU's suit claims the government failed to investigate, prevent, punish, or provide redress for the alleged abuses, despite recommendations by the UN Committee against Torture and the UN Special Rapporteur on Summary Executions, Arbitrary Executions and Forced Disappearance.
The abuses allegedly took place during Operation Okoa Maisha (“Save Lives” in Swahili) conducted by police and military personnel in 2008 against the Saboat Land Defence Force (SLDF), a militia set up with the professed aim of halting the redistribution of land in the Mt Elgon area.
Kenyan authorities accused the SLDF of abducting, mutilating and killing hundreds of civilians who refused to rally to its cause.
|We look forward to a fair hearing and a firm stand by the court against torture and extrajudicial executions in Kenya and throughout the region|
Human Rights Watch (HRW), whose extensive research IMLU used in its case, claims that security agents, acting with impunity, tortured and ill-treated hundreds of detainees. Both IMLU and HRW investigated and documented claims of extrajudicial executions and scores of enforced disappearances.
Daniel Bekele, HRW's Africa director, said: "The Mt Elgon case provides an important opportunity for the East African Court to demonstrate the role that African institutions can play in combating impunity. We look forward to a fair hearing and a firm stand by the court against torture and extrajudicial executions in Kenya and throughout the region."
Donald Deya, the chief executive officer of the Pan African Lawyers’ Union, who has practised before the EACJ, told IRIN the court was "growing from strength to strength" and had the ability to tackle cases of impunity in the region.
"The real challenge, before, was that East Africans were not confident to approach the EACJ," Deya said. "But, in the recent past, we have seen more courage, and the court now has at least one case concerning each of the five countries, ranging from issues of torture, illegal arrest and detention to environmental degradation."
HRW said in a 30 March statement: "The Kenyan government has systematically dismissed reports about the abuses by IMLU, Human Rights Watch and other NGOs, as well as the quasi-governmental Kenya National Commission on Human Rights [KNCHR]. It has failed to take necessary measures to ensure justice for the victims."
In 2008, the KNCHR called for investigations into allegations of torture committed by security forces deployed in Mt Elgon district.