The High Court declined to refer cases of abductions and enforced disappearances in Kenya to the International Criminal Court (ICC).
Instead, Justice Lawrence Mugambi ruled 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.
Justice Mugambi 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.
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).
Elsewhere, the High Court ordered the government to produce businessman Phillip Aroko in court by Monday May 12, following concerns over his continued detention without being arraigned or released on bond.
Aroko was arrested on Wednesday after he surrendered to police following a summons in connection with the murder of Kasipul Member of Parliament Charles Were.
On Friday, Justice Muteti, who certified the matter as urgent, issued the directive after a petition was filed by Aroko’s legal team seeking his immediate release or formal arraignment.
The judge instructed that the application be served to the respondents by 3pm Friday and further directed the respondents to file their responses by Monday. In his ruling, Justice Muteti emphasized that the State must appear before the court on Monday to show cause as to why Aroko has not been presented in court or granted bond.
The legal team representing businessman Aroko has expressed serious concerns about what they describe as a flagrant violation of his constitutional rights and due process.
According to an affidavit filed in the High Court, Aroko has been detained without charge and denied access to his legal counsel, family, and friends.
His lawyers claim that authorities have ignored multiple appeals for his release on reasonable police bail, and they have yet to provide any legal justification for his continued detention.
“This is a clear, calculated, and unlawful affront to both constitutional guarantees and the basic dictates of due process,” the affidavit reads.
Aroko’s legal team, led by prominent lawyer Danstan Omari, is urging the High Court to intervene, warning that the authorities may intend to detain their client for longer than the Constitution allows without first presenting him to a magistrate.
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