BY VINCENT AGOYA

Inasmuch as the order of Habeus Corpus remains important in securing the release of any person held in unlawful custody, without legal justification,  its application in courts in assisting families who are grieving over abductions and disappearances of kin remains a mirage.

Mid last year saw an influx of cases certified urgent under the Habeus Corpus applications .
This year has began with a high profile abduction of two Sudanese in Nairobi’s capital Nairobi with alleged state sanction.
The families have already filed an application pending determination in court .
In the wake of the war against terrorism, security agencies were accused of abductions and forced detention of Kenyans suspected to be involved and those who bore the brunt of the onslaught have not been seen to date.
The relatives of the victims of these abductions trooped to the high court Under the Habeus Corpus law, as a last recourse but have lately learnt that not even the court of law can alleviate their suffering.
The family of  a man reportedly abducted  in Isiolo  moved to court mid May  seeking orders to compel the Kenya Wildlife Service to disclose his whereabouts.Mr Mohammmed Sheikh Abdullahi’s wife, Miriam, and their four children,  believed their kin was in the custody of a KWS ranger and  wanted the director  Mr William Kiprono summoned to court over the  abduction after he was reportedly trailed and ” arrested” by rangers.

The cleric was  reportedly  abducted along Meru-Isiolo road near Kenya Methodist University while in the company of a relative.His wife stated in an affidavit that  KWS “was unhappy with him for bailing out an uncle, Ibrahim Abdi, who has been linked to poaching and the illegal  trade in Ivory.”

Their lawyer Mr Gitobu Imanyara told trial judge Ngenye Macharia that a ranger adversely mentioned in the proceedings should also be summoned for  cross examination “ as he was the last person to be seen in the company of the Sheikh.”

The family also wanted the police to file a report in court in connection with the investigations carried out since the matter was reported to the CID in Meru.

Mr Imanyara told the court that the disappearance had already been reported to police for investigations, and that the police were able to establish that on June 23 at around 5.17pm Mr Abdullahi was in the company of a ranger idetified as Korir  “before both of their phones went off.”

He said the police had gathered the phone data after the family reported their kin’s disappearance.

“The police have fully cooperated with us , we are now requesting that this interested party (Mr Korir) be cross examined and secondly that the DPP files a comprehensive response to this suit,” Mr Imanyara had charged during the Habeas Corpus proceedings.

Mr Imanyara said “we are dealing with a serious matter where a citizen has disappeared in full view of his family and all we are getting is denial from the state.”

The judge then ordered KWS, a state organ  to come on record and that the police explain, in 10 days, what steps have been taken since the matter was reported to them but that was as afar as the matter went. Sheikh Has never been traced to date.

A lawyer who appeared for KWS in rebuttal said that  the parastatal  has collaborated with the police who have told them that the case has not been reported to them adding that “a public inquest”was the best was to unravel the mystery.

Meanwhile a representative of the DPP also sought time to find out what ” the police have done so far.”

In a another case that captured media headlines at the end of 2015 the  state was been given 21 days to explain the whereabouts of a businessman who had been missing for four months after allegedly being arrested by police arrested in Garissa.

Justice Luka Kimaru directed the Inspector general of the National police service, the directorate of criminal investigations, the DPP and CS Ministry of defence to respond to claims that Mr Hamza Mohammed Barre was arrested on April 8 at about 1.00pm at his shop and whisked away to an undisclosed destination.

His brother Ibrahim Muhammed Barre through lawyer Joseph Wagara said the businessman has been missing for the last four months and is probably detained at a police station of a military camp.
“The applicant is apprehensive of his personal safety and life, his continued illegal detention is likely to attack his health and continues to violate his rights and freedoms,” the lawyer submitted during the heat of the Habeas Corpus proceedings.
According to an affidavit before the court, four men who represented themselves as customers and sought to buy mobile phones at his shop, arrested  and bundled him in a motor vehicle registration number KCA 260P which was later spotted at Garissa police station but without the “occupants  and their prisoner on board.”
The men are said to have jumped over the counter of Mr Hamza’s shop and pinned him down before frogmarching him to the waiting car.
The brother states that he tried to intervene and inquire why Mr Hamza was being arrested but he was instead shown a gun and told to “keep off.”
Mr Wagara told the court that the missing man’s family has since made several visits to various police station where they are given contradictory accounts. To date this Kenyan citizen remains an accounted for.
“They have been told that he was taken to Garissa army base,Lang’ata army barracks in Nairobi, the National Intelligence headquarters and the Anti terrorist police unit and even Kilimani police station where they have  inquired in vain,” Mr Wagara says.
He added that for the four months that the man’s kin have visited the aforesaid places they have been met with open hostility  and “now seek the courts intervention.”
The lawyer said that during Mr Hamza’s arrest he was not informed of his offence neither has he been charged in court to date.
Courts can compel authorities to produce missing persons
According to the Habeus Corpus Act only the courts can compel the authorities to “produce a missing man or release” him as  continued detention is illegal and violates the constitution.
Judges   direct that the mentioned parties viz the IG and the AG respond and appear in court for the proceedings but unfortunately this is the furthest these orders go.
After several appearances where accusations and denials are traded and families  are weighed down with the litigation treadmill the matter rests and they leave it to “God.”
State counsels normally appear in court to defend the police and say that respective police stations have “denied having the missing man in their custody.”
They however acknowledge reports being made that the “so and so was reported missing  missing as per OB number this and that…..:”
Lawyers have been pushing that the respondents’ agents  appear in court in person to show cause why their kin cannot be “released or rather traced.”
“Our pursuit that a direction in the nature of habeus corpus be issued against all respondents in these matters to have the missing person  brought before the court has been an effort in futility,” Mr Wagara says.

According to the lawyer judges have largely failed in their mandate to compel and put the state to task over cases of missing persons.”