Although the Kenyan government’s inaction on the rising cases of extrajudicial killings, arbitrary arrests, enforced abductions, and illegal detentions has angered many citizens and civil society organisations, humanitarian justice experts have expressed scepticism over their proposal to involve the International Criminal Court (ICC).
Citing Kenya’s obligations under international law to protect its citizens from enforced disappearances and to prosecute those accountable, the rights groups want the abduction cases referred to the ICC.
Led by Kituo Cha Sheria and Mathare Social Justice Centre, which filed a petition in January 2025 to force Attorney-General Dorcas Oduor to refer the cases, the groups contend that enforced disappearance is considered a crime against humanity under Article 7(1) of the Rome Statute and that this empowers the court to prosecute individuals in Kenya.
International lawyer Owiso Owiso pointed out some of the obstacles that lie in the way of making a successful referral to the ICC.
“Rights groups cannot refer cases to the ICC; rather, they can only submit information (under Article 15) on alleged crimes for consideration by the Prosecutor. The primary responsibility to handle these cases is and always remains Kenya’s,” he explained to Journalists For Justice (JFJ).
He agreed that Kenya could start the process of the referral through a “simple unilateral executive act” on the advice of the Attorney-General (AG). Still, Dr Owiso saw this as an unlikely option because of the current administration’s seeming complicity in the abductions.
The sentiments echoed those of the civil society organisations’ lawyer John Khaminwa, who maintained that the National Police Service (NPS) cannot prevent or effectively investigate the crimes.
“The matter touching on enforced disappearances in Kenya cannot be investigated locally by the arm of the government, namely NPS, because the police are suspects… It would be inappropriate for them [NPS] to investigate this matter,” said Dr Khaminwa.
He argued that the court has the jurisdiction to instruct the AG to refer matters concerning crimes against humanity to the ICC, under Article 14 of the Rome Statute, which empowers ICC member states to request the Prosecutor to open an investigation into international crimes within the court’s jurisdiction.
Extrajudicial killings and enforced disappearances
According to the Kenya National Commission on Human Rights (KNCHR), there have been 63 cases of extrajudicial killings and 89 enforced disappearances, with 29 individuals still unaccounted for.
Friedrich Naumann Foundation for Freedom Senior Project Manager Nzau Musau expressed confidence in the national courts’ capability to prosecute any cases arising from the abductions.
“The Kenyan judiciary is about to try senior police officers with international crimes relating to the brutal crackdown of the post-election protests of 2017. If the events of the last few months meet the threshold of international crimes, we should enable our courts and prosecutors to try them here. It is good for the rights groups to push for ICC intervention if this will help to focus the attention of the world on the violations, but this may be the only purpose this can serve,” the lawyer said.
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Dr Owiso agreed that Kenya can try the cases. “Kenya’s judiciary is capable of handling these cases; it has the requisite expertise and legal framework (the International Crimes Act 2008 and the Rome Statute itself). However, as our legal system is adversarial, the judiciary cannot initiate charges; only the Director of Public Prosecutions (DPP) can. Ultimately, it is up to the domestic actors, including civil society groups, to put pressure on the DPP to initiate prosecutions.”
Dr Owiso also referenced Kenya’s history with the court, noting that it would work against another possible route to the ICC, the proprio motu way, where the ICC Prosecutor initiates an investigation into a situation without a referral from the United Nations Security Council (USC) or a state party.
“It is doubtful that the Prosecutor would go down that path again in light of the collapse of the Kenyan cases against then-Kenyan President Uhuru Kenyatta in 2014 and his deputy, William Ruto in 2016,” he said.
Another route to the ICC, what Dr Owiso called “a long shot”, would be for the CSOs to lobby amenable Rome Statute states parties to refer the situation in Kenya to the ICC or to wait for it to be referred to the Prosecutor by the UNSC.
However, Dr Owiso cautioned that the chances of success may not be high “…in light of the current deep divide among veto-holding permanent UNSC members and the bad taste that the only two referrals so far, (Darfur and Libya), have left.”
International standard documentation
Another factor that would aid a possible case before the ICC is proper documentation that meets international standards. This has played a vital role in advancing ICC cases and promoting transitional justice.
In the Philippines, civil society organisations meticulously documented alleged crimes against humanity during President Rodrigo Duterte’s brutal “war on drugs” crackdown, providing critical evidence that supported the ICC’s investigation. Duterte was arrested on March 11, 2025, at Manila’s Ninoy Aquino International Airport upon returning from Hong Kong and he was surrendered to ICC custody on March 12. He made his initial appearance before the court on March 14.
Former Prosecutor Moreno Ocampo relied on rigorous civil society documentation in the Kenya situation to advance prosecutorial efforts related to the post-election violence of 2007/2008.
According to the provisions of the Rome Statute, it is the duty of each state to enforce its criminal jurisdiction against those accountable for international crimes. However, the ICC is authorised to intervene in cases where a state is either unable or unwilling to conduct genuine investigations and prosecute the offenders.
The court can trigger the jurisdiction through three primary channels: a referral by a member state, the Prosecutor’s own initiative (proprio motu), or a request from a state party, as well as through the United Nations Security Council.
Under the referral option, a member state can refer a case to the ICC, giving it authority over the situation. The state cannot retract its referral. Non-state parties cannot make referrals but can issue ad hoc declarations accepting the ICC’s jurisdiction, as the Ivory Coast did in 2005. Member states can also collectively refer situations, as seen on March 2, 2022, when 43 ICC states parties referred the Ukraine situation to the ICC Prosecutor, leading to an investigation.
The Prosecutor of the ICC is empowered to independently initiate investigations into crimes that have taken place in any of its state parties or in other countries that have agreed to the court’s jurisdiction, under the rule of proprio motu. A notable instance of an ICC Prosecutor acting on his or her own accord was in 2016, when Pre-Trial Chamber I authorised Fatou Bensouda to open an investigation into alleged crimes against humanity and war crimes committed in and around South Ossetia, Georgia.
UNSC plays a crucial role in addressing acts of aggression and possesses the authority to refer any situation to the ICC, irrespective of a state’s membership or recognition of the court.
This referral is executed through a resolution sanctioned by the UN Charter. Examples include the UNSC’s referral of the situations in Darfur, Sudan, in March 2005 and Libya in February 2011.
Individual responsibility
Under the ICC’s jurisdiction, individuals who commit, facilitate, or fail to prevent international crimes are held accountable to uphold justice. One example in the Kenya case is the court’s pursuit of former Police Commissioner Mohammed Hussein Ali in 2011.
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Ali was accused of enabling violence as the boss of the Kenyan police. His inaction was deemed to have facilitated violence against perceived supporters of the opposition during Kenya’s 2007/2008 post-election crisis. He faced charges of crimes against humanity, but they were later dismissed due to insufficient evidence.
In 2024, Inspector General of Police Japhet Koome resigned amid widespread criticism of police brutality during the Gen Z protests that left over 60 people dead. Though the authorities framed Koome’s resignation as part of “broader government restructuring”, media reports alleged that he chose to step down rather than follow orders that might have implicated him in further violations.
Who is responsible for the abductions?
According to the KNCHR, the disappearances are intended to undermine democratic freedoms and herald a revival of state-sponsored repression against activists, political opponents, and reform advocates.
The commission indicated that the abductions peaked in 2024 after the Gen Z protests over the government’s failure to address its new tax regime amid growing economic challenges, particularly the rising cost of living. Some 61 deaths were recorded from the protests.
According to Amnesty International, a clandestine intelligence unit is responsible for orchestrating these enforced disappearances. Additionally, there are concerning witness accounts indicating that foreign agents are involved in the abduction of dissidents in Kenya.
In November 2024, Ugandan opposition leader Kizza Besigye – a fierce critic of President Yoweri Museveni – went missing in Nairobi while on a mission to attend the launch of Kenyan politician Martha Karua’s book. He reappeared four days later before a military court in Kampala.
His wife, Winnie Byanyima, reported that the 68-year-old leader of the Forum for Democratic Change (FDC) was forcibly transported across the border to a Ugandan military prison.
Uganda’s Information Minister, Chris Baryomunsi, said Besigye’s arrest was conducted with the full knowledge and support of the Kenyan government.
“The government of Uganda was in touch with the government of Kenya. Otherwise, how would you arrest somebody from the middle of Nairobi and then bring him back to Uganda through the airport or even if it was by land without the full knowledge and support of the state there in Kenya?” he asked.
Four months earlier, 36 individuals affiliated to Besigye’s FDC party were apprehended in Kisumu despite their lawful entry into Kenya. They were subsequently deported to face terrorism-related charges in Uganda.
In October 2024, seven Turkish asylum seekers who had been critical of President Recep Tayyip Erdogan were abducted in Nairobi. Four of them were forcibly repatriated to Turkey despite having valid immigration documentation and expressing concerns regarding their safety at home.
Foreign Affairs Principal Secretary Korir Sing’oei defended the action, claiming that the repatriation was conducted at the request of the Turkish government.
“The repatriation was not a departure from the humanitarian principle and ethos for persons fleeing conflict and persecution that Kenya strongly endorses, but a crucial balancing of interests for the bigger good,” he said.
In early January 2025, Tanzanian human rights activist Maria Sarungi Tsehai was abducted in Nairobi by four unknown assailants and later released by the roadside following an outcry. In an interview, Tsehai claimed the Tanzanian government was behind her abduction.
“I am sure part of the abduction was to get access to my devices and through them, my online activities, which sometimes include whistleblowing and also a lot about abductions in Tanzania,” said Tsehai.
Amnesty International’s Regional Director for East and Southern Africa Tigere Chagutah called out the abuse of Kenya’s extradition process.
“This is not the first time a foreign dissident has been abducted on Kenyan soil. It is part of a growing and worrying trend of transnational repression with governments violating human rights beyond their borders… These practices must stop,” said Chagutah.
Despite assurances by Inspector General of Police Douglas Kanja, Directorate of Criminal Investigations (DCI) Director Mohamed Amin, and Government Spokesman Isaac Mwaura, the lingering fear of further persecution and enforced disappearances continues to haunt victims.
Torture, violence, and psychological distress
Bob Njagi and Aslam Longton survived the abduction and torture. On February 2, 2025, they shared with the Kenya Human Rights Commission (KHRC) the harrowing details of their captivity, revealing that they endured torture, violence, and psychological distress.
“During our captivity, we were subjected to torture by security agents simply for advocating change. Although we were released, we live in constant fear of being targeted again. Many activists, like us, who have been forcibly disappeared, have been found dead. Countless others remain missing,” they said.
The death of Justus Mutumwa, as recounted by his brother, Dancan Kyalo, further exposed the extent of the brutality. According to Kyalo, Mutumwa’s body showed signs of torture, including marks on his wrists suggesting he had been tied up.
“His forehead had deep cuts, his eyes had been pierced and his lips were cut. His wrists bore visible marks, indicating they had been tightly bound,” revealed Kyalo.
His family had reported him missing on December 21, December 2024 and only came to learn of his death at the end of January 2025. According to the police, the body had been lying at the mortuary since December 18, 2024, when it was pulled out of the Nairobi River in the Ruai area.
Billy Mwangi, an abduction survivor, told NTV that he was whipped, beaten, and confined to a dark room: “The food was inedible. The situation was not conducive for me, and I am currently under medication. I am tormented and tortured psychologically.”
