The High Court has dismissed a case that sought to have cases of abductions, enforced disappearances and killings referred to the International Criminal Court (ICC).
Justice Lawrence Mugambi, on Friday, May 9, said he could not grant orders sought by rights groups Kituo Cha Sheria and Haki Afrika, and an individual Charles Njue, "because Kenya is not a failed state."
In their petition, Kituo Cha Sheria and Haki Afrika, and Mr Njue, sought orders to compel the government to refer the cases to the Hague-based court, accusing the William Ruto-led administration of failing to guarantee justice to victims and their families.
Justice Mugambi noted that the national institutions are capable of handling cases involving the abductions and killings.
"Kenya has not yet reached a point where it is unable to handle such matters," Justice Mugambi said, adding: "There is insufficient evidence to demonstrate that Kenya’s national systems had failed in addressing these concerns effectively."
In his ruling, Mugambi said cases involving deaths or injuries resulting from police actions while suspects are in their custody, or injustices committed by the police while on duty, fall exclusively under the Independent Policing Oversight Authority (IPOA).
The court noted that no other investigative body or entity within the National Police Service is authorized to handle these matters. In its decision, the court noted parallel investigations that are sometimes conducted simulateneously by both the police and IPOA, and which have often ensured victims and their families dont get justice.
Notably, the court also found that the widespread and systematic nature of enforced disappearances and killings in the country meet 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 able to address these issues domestically.
Wiper Party leader Kalonzo Musyoka had recently vowed to escalate the cases involving the killings of civilians under President William Ruto's administration to the ICC.
In a scathing statement signed by opposition politicians Kalonzo, Rigathi Gachagua, Eugene Wamalwa, Justin Muturi, and Martha Karua, the leaders condemned the killings of five civilians in Ang'ata Barikoi, Narok County.
According to the leaders, the deaths on Monday, April 28, were not isolated, with the cases of land-related killings on the rise in the country.
While describing the incident as a gross violation of human rights, the leaders asserted that the only way to end the pattern was to teke the cases to the ICC.
“This tragedy is not an isolated incident,” Kalonzo said. “It is part of a growing trend of state-sponsored violence and illegal land takeovers orchestrated by the Kenya Kwanza kleptocracy. These are crimes against humanity, and we are committed to taking the matter to the ICC," their joint statement said.
The clamour for ICC’s involvement in the cases comes afer the release of ‘Blood Parliament’, a documentary by the BBC that highlighted police brutality during the Gen Z-led protests in June-July 2024.
President Ruto himself has faced the ICC before following investigations into his alleged involvement in the 2007/2008 post-election violence.
