Court Issues Fresh Directives on International Organisations After Landmark Case

The High Court has directed the Kenyan government to establish and operationalise a system to receive and process complaints from Kenyan working for international and regional organisations that enjoy diplomatic immunity.

According to a ruling by Justice Roselyne Aburili, the government has nine months from the date of service of the judgment to develop and operationalise effective administrative mechanisms for handling such complaints.

The decision followed a petition filed by Shem Odongo Ochuodho, an elected member of the African Union’s Economic, Social and Cultural Council (ECOSOCC), over his suspension from the organisation and the government’s failure to respond to his request for intervention.

The respondents included the African Union Commission, the ECOSOCC Standing Committee, the ECOSOCC Secretariat, the former African Union Commission Chairperson Moussa Faki Mahamat and Kenya’s Ambassador to the African Union.

Abdurrahman Ahmed Mokhtar of Libya, Roll Stephane Ngomat of Gabon and El Hacene Mbareck of Mauritania were listed as interested parties in the case.

Court Finds State Failed to Address Complaint

Ochuodho had sought the intervention of the government after he was suspended from ECOSOCC on June 21, 2022, alongside other members.

He later wrote to the Ministry of Foreign Affairs seeking government intervention, but the complaint was not addressed.

As a result , the court found that the failure by the Attorney General, the Ministry and Minister for Foreign Affairs, the Principal Secretary and Kenya’s Ambassador to the African Union to address the complaint violated Ochuodho’s rights.

Also Read: ‘Do Not Crucify Obado’: Sharon’s Mother Pleads With Court Ahead of Sentencing

Justice Aburili held that the failure affected his right to fair administrative action as well as his rights of access to justice and a fair hearing.

“Total silence by the government, the court found, amounted to a failure to provide the expeditious, efficient and fair administrative action guaranteed under Article 47 of the Constitution,”

The court subsequently issued a supervisory order of mandamus requiring the Kenyan respondents to establish a mechanism for receiving and processing complaints from citizens working for international and regional organisations that enjoy immunity from legal process.

Meanwhile , the government has been given nine months after service of the judgment to comply with the order.

The mechanism is intended to provide an administrative avenue for Kenyans who may face disputes with international or regional organisations that cannot ordinarily be sued in Kenyan courts because of immunity.

Court Clarifies Scope of AU Immunity

This judgment followed an earlier ruling in the case in which the court struck out the African Union Commission, the ECOSOCC Standing Committee, the ECOSOCC Secretariat and former AU Commission Chairperson Moussa Faki Mahamat from the proceedings.

The high court held that the entities and official enjoy immunity from legal process under the General Convention on the Privileges and Immunities of the African Union and Kenya’s Privileges and Immunities Act.

The court found that no express waiver of immunity had been demonstrated.

Also Read: IG Kanja Ordered to Appear Before Court for Sentencing

However, the court maintained that the immunity enjoyed by the African Union did not extend to the Kenyan State or prevent the court from examining the conduct of Kenyan government officials.

It also noted that immunity cannot create a vacuum of justice for citizens who have complaints against international organisations.

Where a citizen cannot directly pursue a claim against an organisation because of its immunity, the government may be required to take up the matter through diplomatic channels.

Justice Aburili further noted that while the decision on whether to engage diplomatic channels remains within the Executive’s discretion, the process of handling a citizen’s request must comply with the constitutional right to fair administrative action.

Follow our WhatsApp channel for instant news updates

United Nations Office at Nairobi (UNON) complex. PHOTO/Nairobi