High Court declines to refer Kenya's abduction cases to ICC

The High Court has declined to refer cases of abductions and enforced disappearances in Kenya to the International Criminal Court (ICC), ruling that national institutions are still capable of handling such matters.

The court determined that cases involving deaths or injuries resulting from police actions while in custody, and carried out by officers on duty, fall exclusively under the jurisdiction of the Independent Policing Oversight Authority (IPOA).

The court emphasised that no other investigative body or entity within the National Police Service is authorized to handle these matters.

In its decision, the court pointed to the parallel investigations conducted by both the police and IPOA, which have often resulted in injustice for victims and their families.

The court also found that the widespread and systematic nature of enforced disappearances and killings in the country meets the threshold of crimes against humanity.

Despite this finding, the court rejected the petitioners' request to refer the cases to the ICC, stating that Kenya’s national systems are not yet unable to address these issues domestically.

"Kenya has not yet reached a point where it is unable to handle such matters," the court noted.

Justice Lawrence Mugambi observed that there was insufficient evidence to demonstrate that Kenya’s national systems had failed in addressing these concerns effectively. He also stressed that police officers cannot investigate themselves in cases involving custodial deaths or injuries.

The petitioners, represented by Dr. John Khaminwa and John Mwariri from Kituo cha Sheria, have indicated that they may appeal certain aspects of the court’s decision.

In the case, Kituo Cha Sheria, Haki Afrika, and Charles Njue had moved to court seeking to compel the government to refer Kenya’s cases of abductions and enforced disappearances to the International Criminal Court (ICC).