Justice Muteti Summons IG Kanja Mwaipaya Over Missing Activist

• The High Court, through Justice Alexander Muteti, ordered Inspector General Douglas Kanja to appear after the State failed to produce missing Tanzanian activist Twaha Mwaipaya.
• Mwaipaya disappeared on October 25, prompting human rights group Vocal Africa to petition the court for his production.
• The court cited Article 49 of the Constitution, which requires arrested persons to be presented before a court, and the Öcalan v Turkey precedent.
• Justice Muteti criticized the State for not addressing allegations of irregular repatriation and the Attorney General for lack of support in the case.
• The Inspector General is mandated to explain whether state agents abducted Mwaipaya and returned him to Tanzania without due process.

The silence on the issue of possible repatriation at the instance of the State cannot go unexplained.

On Monday, November 2, Justice Alexander Muteti of the High Court issued a directive for Inspector General of Police Douglas Kanja to appear before the court the following day, Tuesday, November 3. This order came after the State failed to comply with an earlier court mandate to produce Tanzanian activist Twaha Mwaipaya, either alive or deceased. The court noted the State's inadequate explanation for Mwaipaya’s whereabouts, particularly in light of allegations suggesting he might have been arrested and irregularly repatriated to Tanzania.

The activist, Twaha Mwaipaya, reportedly vanished on October 25 in Kamulu, Machakos County. Human rights organization Vocal Africa subsequently filed a petition on October 27, seeking his production. Following this, on October 30, the court had instructed security agencies to present Mwaipaya by November 2, along with his original detention warrant, and to provide justification for his continued detention. Amnesty International Kenya and the Defenders Coalition reported that Mwaipaya was apprehended around 2 PM while traveling in a taxi to visit friends, prompting their calls for authorities to ascertain his location and ensure his safety.

Justice Muteti underscored the constitutional imperative under Article 49, which mandates that any arrested individual must be brought before a court or be informed of the reasons for their ongoing detention. He stressed the State's obligation to assure the court that its agents had not arrested and removed the activist from Kenyan territory. The judge highlighted that while senior officers from the Inspector General and the Director of Criminal Investigations had attended court, the State had conspicuously avoided addressing the serious allegations of possible repatriation.

The court found this "silence on the issue of possible repatriation at the instance of the State cannot go unexplained," criticizing the government for its failure to submit an affidavit given the gravity of the situation. Justice Muteti clarified that the Inspector General Douglas Kanja, as the highest authority within the police service, was uniquely positioned to explain whether State agents might have abducted Mwaipaya and returned him to Tanzania without adhering to due process. He deemed it unnecessary to summon both the IG and the DCI, affirming the Inspector General's overarching authority in police matters.

In his ruling, Justice Muteti referenced Article 49 of the Constitution and the European Court of Human Rights' decision in Öcalan v Turkey. This precedent, the judge noted, emphasizes the critical importance of promptly presenting arrested individuals before judicial authorities as a safeguard against arbitrary detention and potential ill-treatment. The Öcalan v Turkey Kenya precedent was deemed particularly relevant because the subject in that case had also been apprehended at a Kenyan airport and subsequently removed from the country.

Furthermore, Justice Muteti criticized the Attorney General for failing to provide the necessary support to the court in a case concerning the liberty of a foreign national. Citing Article 156 of the Constitution, which defines the Attorney General as the government's principal legal adviser and custodian of the public interest, and referring to the Supreme Court's decision in Petition 14 of 2020, DPP v Chris Okemo, the judge underscored the office's crucial role in matters of international cooperation. The circumstances surrounding the alleged abduction, the identities of those involved, and Twaha Mwaipaya’s current location remain undisclosed based on the information presented. Separately, Tanzanian activist Maria Sarungi expressed concerns about Mwaipaya's potential forced return to Tanzania, alleging prior abduction and torture by police there, though these claims remain unverified.

This ruling reinforces the Kenyan High Court's commitment to upholding constitutional rights under Article 49, particularly concerning the production of detained individuals and accountability of state agents. Lawyers should note the court's willingness to summon high-ranking officials like the IG to ensure due process, especially in cases involving alleged irregular renditions or disappearances of foreign nationals, and can leverage cited precedents like Öcalan v Turkey.

Source: Original reporting via Capital News Kenya.