Nairobi, Kenya — The High Court has declined to refer cases involving abductions and enforced disappearances in Kenya to the International Criminal Court (ICC), asserting that the country’s institutions remain capable of addressing the alleged human rights violations.
In a decision delivered by Justice Lawrence Mugambi, the court acknowledged that the widespread and systematic nature of enforced disappearances and extrajudicial killings in Kenya meets the threshold of crimes against humanity. However, it stopped short of granting the petitioners’ request to escalate the matter to The Hague-based court, citing the continued functionality of domestic mechanisms such as the Independent Policing Oversight Authority (IPOA).
“Kenya has not yet reached a point where it is unable to handle such matters,” said Justice Mugambi. He emphasized that while the situation is dire, it does not warrant the intervention of the ICC at this stage. “There is no sufficient evidence to demonstrate that national systems have failed completely in addressing these concerns.”
The ruling arose from a petition filed by Kituo cha Sheria, Haki Afrika, and rights activist Charles Njue. The group was represented by seasoned lawyers Dr. John Khaminwa and John Mwariri. The petitioners argued that the Kenyan state has consistently failed to protect its citizens from unlawful abductions, disappearances, and custodial killings, particularly those allegedly perpetrated by state security agents.
They cited a growing trend of victims being taken without due process, often never to be seen again, and argued that the government’s failure to prevent or punish such actions constitutes a breach of both national and international legal obligations. According to the petitioners, the ICC was the most suitable forum to pursue justice, given the gravity and scale of the violations.
However, the court maintained that the IPOA remains the legally mandated body to investigate incidents involving police misconduct, including custodial deaths and injuries. “Such cases fall exclusively under IPOA’s jurisdiction. No other investigative arm within the National Police Service is authorized to probe these matters,” the ruling stated.
Justice Mugambi was critical of the parallel investigations often carried out by the police and IPOA, warning that such practices frequently lead to injustice for victims and confusion within the criminal justice system. He also reiterated that police officers should not be allowed to investigate themselves in such cases, a statement that drew attention to long-standing concerns over impunity and conflict of interest within law enforcement agencies.
The court acknowledged the pain and frustration of the affected families, many of whom have waited years for answers that never came. Nonetheless, it stressed that constitutional and statutory avenues for redress still exist and must be exhausted before seeking external intervention.
Dr. Khaminwa, speaking after the ruling, indicated that the petitioners are considering an appeal. “We respect the court’s decision, but we believe that there are grounds to challenge certain aspects of the judgment. The families of the disappeared deserve justice that has long been delayed.”
Haki Afrika’s executive director Hussein Khalid expressed disappointment with the ruling, warning that victims may continue to suffer under a system that appears unwilling to confront rogue elements within its security forces. “We must ask ourselves how many more lives must be lost before the state takes this issue seriously.”
The decision comes at a time of increasing scrutiny of Kenya’s human rights record, particularly regarding how law enforcement agencies respond to protests, terrorism, and organized crime. Human rights groups have for years raised alarm over the alleged use of forced disappearances and extrajudicial killings as tools of state repression.
While the court declined to refer the matter to the ICC, its recognition that the abuses amount to crimes against humanity could set a significant precedent for future legal actions — either within Kenya or before international tribunals.
