The High Court has summoned Inspector General of Police Douglas Kanja to appear on Tuesday, November 3, to explain the disappearance of Tanzanian activist Twaha Mwaipaya after the State failed to produce him before the court as ordered.
Justice Alexander Muteti on Monday faulted the government for failing to account for Mwaipaya’s whereabouts, particularly amid allegations that he may have been arrested and secretly returned to Tanzania without following due process.
The judge said the State had a duty to establish whether its agents had arrested and removed the activist from Kenya, noting that the gravity of the allegations required a formal explanation.
“The silence on the issue of possible repatriation at the instance of the State cannot go unexplained,” Muteti said, faulting the government for failing to file an affidavit addressing the allegations.
The court directed Kanja to explain whether police officers could have abducted Mwaipaya and taken him to Tanzania unlawfully, as well as provide an update on investigations into his disappearance.
Although senior officers representing the Inspector General and the Directorate of Criminal Investigations appeared in court, the judge said the State had failed to address claims of possible repatriation.
Muteti noted that Kanja, as head of the National Police Service, retained authority over police operations and was therefore best placed to address the allegations.
The judge also cited Article 49 of the Constitution, which protects the rights of arrested persons, including the right to be presented before a court as soon as reasonably possible.
He referenced the European Court of Human Rights decision in Öcalan v Turkey, which underscored the importance of judicial oversight in preventing arbitrary detention and ill-treatment.
The case, Muteti observed, was particularly relevant because the subject of the ruling had been arrested at an airport in Kenya and removed from the country.
The judge further criticised the Attorney General for failing to provide the necessary support in a case involving the liberty of a foreign national, citing the office’s constitutional responsibility to advise the government and safeguard the public interest.
The summons followed an application by human rights organisation Vocal Africa, which moved to court on October 27 seeking Mwaipaya’s production after he reportedly disappeared in Kamulu, Machakos County, on October 25.
On October 30, the court ordered security agencies to produce the activist before it on Monday, November 2, “live or dead”, alongside his original detention warrant, and explain why he should not be released.
However, the State failed to comply with the directive, prompting the court to summon the police chief.
Amnesty International Kenya and the Defenders Coalition said Mwaipaya was seized at around 2pm while travelling by taxi to visit friends.
The organisations called on authorities to establish his whereabouts and guarantee his safety.
Tanzanian activist Maria Sarungi had separately raised concerns that Mwaipaya could be forcibly returned to Tanzania, where she alleged he had previously been abducted and tortured by police. The allegations have not been independently verified.
The circumstances surrounding Mwaipaya’s reported abduction, the identities of those involved and his current whereabouts remain unclear.
