Gov't ordered to address complaints by Kenyans working for international organisations

The High Court has ordered the government to put in place a system for handling complaints from citizens working for international and regional organisations, after finding that officials failed to respond to a complaint by a former African Union representative.

The Attorney General, Ministry of Foreign Affairs, Cabinet Secretary for Foreign Affairs, Principal Secretary for Foreign Affairs and Kenya’s Ambassador to the African Union have been given nine months from the date they are served with the judgment to establish and operationalise such a system.

The order is intended to ensure that citizens in similar situations are not left without a response when they seek government assistance in disputes involving immune international organisations.

Justice Roselyne Aburili found that the Ministry of Foreign Affairs and other government officials violated Shem Odongo Ochuodho’s right to fair administrative action by failing to address his complaint about his suspension from the African Union’s Economic, Social and Cultural Council (ECOSOCC).

Ochuodho moved to court after he was suspended from ECOSOCC in June 2022. He argued that the suspension was unlawful and that he had not been given an opportunity to defend himself before the decision was made.

He also complained to Kenyan government officials and asked them to intervene through diplomatic channels, but received no meaningful response.

The court did not order the African Union to reinstate Ochuodho or award him damages.

Instead, Justice Aburili focused on the conduct of the Kenyan officials who had received his complaints.

The judge said the government could not simply ignore a formal request from a citizen seeking diplomatic assistance, particularly where the organisation at the centre of the dispute enjoys immunity from legal proceedings in Kenya.

The court stressed that this did not mean the government was obliged to achieve the outcome sought by a citizen.

Rather, officials must consider the complaint, make a decision and communicate that decision. Where the government chooses not to pursue diplomatic intervention, the affected citizen should, where required by law, be given reasons.

“Total silence” by the government, the court found, amounted to a failure to provide the expeditious, efficient and fair administrative action guaranteed under Article 47 of the Constitution.

Justice Aburili said the issue extended beyond Ochuodho’s individual dispute.

Kenyans working for international and regional organisations may sometimes face grievances involving institutions that are protected by diplomatic immunity and therefore cannot easily be sued in Kenyan courts.

The court said there was therefore a need for a clear administrative mechanism through which such citizens could lodge complaints with the Kenyan government and have those complaints considered and answered.

Ochuodho’s original case centred on his suspension from ECOSOCC.

He claimed that the AU had acted outside its own rules and denied him a fair hearing. He argued that the ECOSOCC General Assembly, rather than the AU Commission Chairperson, had the authority to remove a member for conduct contrary to the organisation’s rules.

He also said no proper disciplinary inquiry had been conducted before his suspension.

The court, however, could not determine those claims against the AU bodies because of their immunity.

Justice Aburili noted that Kenya’s Constitution recognises international treaties and agreements that Kenya has ratified, while domestic law also gives certain international organisations immunity from legal proceedings.

The court relied on previous decisions holding that such immunity can limit access to Kenyan courts where it is provided for under applicable international agreements.

According to the judgment, Ochuodho had written to the government seeking intervention over what he described as illegal activities within ECOSOCC. He was suspended a few days later, on June 21, 2022.

The government officials did not file responses to the petition or make submissions in court.

Justice Aburili found that their failure to respond to Ochuodho’s complaints amounted to a violation of his right to fair administrative action. The court further found that this affected his rights to access justice and a fair hearing.

However, by the time the case was determined, Ochuodho’s term at ECOSOCC had already ended in December 2022.

The judge therefore found that an order requiring his reinstatement would serve no practical purpose. The court also could not order the AU bodies to reinstate him because they were protected by immunity.

Instead, the court issued a supervisory order requiring the Kenyan government to address the wider problem.

The order means the government must establish a functioning process for receiving, considering and responding to complaints from Kenyans working for international or regional organisations enjoying immunity from legal proceedings.