2 Lobby Groups Want Abduction Cases In Kenya Taken To ICC

Two civil society groups now want Kenya's cases of abductions and enforced disappearances referred to the International Criminal Court (ICC), in what could present the government with a mountain of complications to deal with given the accusations it has faced over the contentious matter.

The groups, that is Kituo cha Sheria and Mathare Social Justice Centre (MSJC), filed a joint case before High Court Judge Chacha Mwita, seeking that the abductions and enforced disappearances under the Kenya Kwanza government be investigated and prosecuted by the ICC.

They specifically stated that it should be the responsibility of Attorney-General Dorcas Oduor to refer the cases to the Hague-based court in the Netherlands and that the matter be classified as crimes against humanity.

"MSJC together with Kituo cha Sheria, through the firm of Khaminwa and Khaminwa Advocates, have today filed a petition to the High Court praying for a Declaratory order that the Attorney General do refer to the prosecutor of the International Criminal Court, that the abductions and enforced disappearances occurring in the Republic are Crimes Against Humanity and should be investigated," the Mathare Social Justice Centre stated in a statement.

Explaining their petition, the groups outlined that any civilized government must at the first instance protect its citizens from any harm caused by any of its actions.

The groups also found that the Kenyan Police have completely failed in its mandate to protect Kenyans as per the Constitution.

"With the admission from the Inspector General of Police that the National Police Service has not the capacity to investigate the recent spate of abductions nor make arrests, it is clear that the National Police Service is failing in its duty to protect the people in the Republic under Article 238 of the constitution of Kenya.

"Article 5 of the Rome Statute provides for the jurisdiction of the International Criminal Court which jurisdiction is limited to the Crimes of genocide, Crimes Against Humanity, war crimes and crimes of aggression. Article 7 (1) (i) of the Rome Statute provides that enforced disappearances when used as a widespread political tool for suppression is a crime against humanity," the statement continued.

The groups also argued that the prosecutor of the International Criminal Court has widespread investigative powers as allowed under Article 53 of the Rome Statute.

Further, they contested that the High Court has the power and authority to command the Attorney General to refer what is termed as a crime against humanity to the International Criminal Court as allowed under the provisions of Article 14 of the Rome Statute.

"That as it appears that the National Police Service is unable and unwilling to conduct the investigations, the court has the duty to protect and defend the people of the republic by referring the matter of abductions and enforced disappearances to the International Criminal Court," added the statement, addressed through veteran lawyer Dr John Khaminwa.

According to Khaminwa, the Social Justice Movement has over the years recorded many cases of enforced disappearances and extra judicial killings, which the Kenyan National security organs "have either refused, are unable or unwilling to investigate and prosecute."

The groups are thus requesting the courts to be firm and defend the rule of law, the people's freedom and the supremacy of the Constitution. Justice Mwita of the High Court in Nairobi is expected to issue further directives on the case within the week.

This move comes as the government is already facing more legal issues, with other cases filed before the High Court demanding that authorities produce in court six Kenyans who were abducted by unknown individuals during the festive season in December 2024.

The six individuals who were reportedly abducted and illegally detained include Gideon Kibet, Bernard Kavuli, Peter Muteti, Billy Mwangi, Rony Kiplangat, and Steve Kavingo.