Justice Muteti has ordered the Directorate of Criminal Investigations (DCI), the Independent Policing Oversight Authority (IPOA) and the Kenya National Commission on Human Rights (KNCHR) to continue with independent investigations into the disappearance of Kiamaiko businessman Abdulaziz Zizou and three other men.
Zizou, Macmillan Kiarie Mugo, Michael Oloo and Evans Otieno disappeared in late July, with their whereabouts remaining the subject of ongoing habeas corpus proceedings.
The ruling followed applications by IPOA and KNCHR seeking court orders to resume their investigations into the four men’s disappearance. The two institutions had told the court that their investigations were affected after the matter became the subject of court proceedings, with IPOA relying on Section 26 of the IPOA Act and KNCHR citing Section 30 of the KNCHR Act.
Justice Muteti has now ruled that the existence of the court proceedings does not, by itself, prevent the two institutions from carrying out their respective investigations. The judge held that the purpose of the investigations is to assist in establishing the whereabouts of the missing men and would not compromise the habeas corpus proceedings.
“The purpose of the intended investigations would, in this court’s view, be to assist in uncovering the whereabouts of the subjects of the habeas corpus,” Justice Muteti said.
He said the investigations could ultimately serve the interests of the missing men by helping secure their liberty.
“The investigations can only be of benefit to securing the liberty of the individuals as opposed to compromising the integrity of the instant proceedings,” the judge said.
Justice Muteti further rejected an interpretation of the law that would effectively shield an investigative agency from exercising its mandate whenever a matter is brought before court.
“If one was to interpret Section 26 of the Act as barring the authority from conducting investigations into a matter simply because there are active proceedings in court touching on the subject matter, such a position would invite mischief makers into filing proceedings in court whenever an issue that would attract the intervention of IPOA so as to ward them off,” he said.
The judge noted that the allegations before the court include claims that the four men were arrested or detained by police, allegations the police have denied. The police have maintained throughout the proceedings that the subjects are not in their custody.
According to Justice Muteti, the allegations of possible police involvement automatically trigger IPOA’s oversight mandate and the agency should remain independent in exercising its functions. The judge also stressed that the investigations should not be left to the police alone, saying other investigative agencies have complementary roles in tracing and locating the missing men.
“The fact that the police are investigating the matter should not exclude other investigative agencies from continuing the investigation, since each agency would be playing a complementary role in trying to trace, find and locate the subjects with a view to informing this court of their status,” Justice Muteti said.
The court consequently ordered the agencies to continue with independent investigations into the circumstances leading to the arrest and disappearance of the four men and directed the interested parties to share the results of their findings with the court.
The judge also considered the wider constitutional implications of alleged disappearances, noting that the state must confront such incidents through all investigative agencies created under the Constitution and statute. Justice Muteti observed that disappearances can constitute a serious threat to the right to life and liberty and said courts should interpret laws affecting investigations in a manner that advances justice and constitutional rights.
The court will also hear the witness protection aspect of the matter in-camera after a representative of the Witness Protection Agency appeared before the court and sought private proceedings to safeguard a witness.
The ruling now clears the way for IPOA, KNCHR and the DCI to continue pursuing separate investigations as the court proceedings over the whereabouts of Zizou, Mugo, Oloo and Otieno continue.
