ICJ Kenya’s 2015 Strategic Plan identifies litigation as an important advocacy strategy for achieving the objectives identified in the plan. ICJ Kenya has undertaken to file in court or participate in, a minimum number of impact litigation cases per year which are demonstrative of the interests that ICJ Kenya seeks to advance.
During 2011, ICJ Kenya was involved in the following cases.
(a)Before the East African Court of Justice
ICJ Kenya has filed an application to act as an interested party in a reference filed by the Independent Medico-Legal Unit (IMLU) under a programme implemented jointly by the two organisations. The respondents in the reference are the Attorney General of Kenya, the Chief of the General Staff, the Commissioner of Police and the Secretary General of the East African Community. The litigation seeks court intervention to prevent, investigate or punish acts of torture, inhuman or degrading treatment carried out against more than 3000 residents of Mt Elgon allegedly perpetrated by the respondents jointly and severally between 2006 and 2008, in violation of international law. The Attorney General’s preliminary objections on several grounds, including jurisdiction, limitation of time, misjoinder of parties, and the failure by the applicant to submit a certificate of registration with the suit, were dismissed by the court, paving the way for a hearing on substance.
(b)Torture cases in Kenyan courts
Under the same programme, ICJ Kenya, with IMLU, were under duty to file 40 cases before Kenyan courts seeking redress on behalf of victims of torture. The cases have been filed in various courts around the country, and it is the obligation of ICJ Kenya, working with the lawyers acting in the cases, to manage their progress in court. A challenge that will have to be met is that funding for the programme has ended and that therefore, the management of the cases will have to be undertaken without specific financial resources. There are discussions as to how this will be managed.
(c)Application for a provisional arrest warrant for President Al Bashir
Following the failure by the Kenya government to arrest Sudanese President Omar Al Bashir, as required by its obligations under the Rome statute and the International Crimes Act, when he visited the country in August 2010, ICJ Kenya filed an application for an arrest warrant against Al Bashir, should he ever return to Kenya. The application was heard by Justice Ombija who decided in our favor, granting the application and imposing an arrest warrant against Al Bashir. An appeal is pending.
(d)The Uganda Renditions Case
Working with the advocate Mbugua Mureithi, ICJ Kenya has filed a suit in the High Court of Kenya, seeking access to information that is needed by the six Kenyans who are charged in Ugandan courts for terrorism in connection with the bombing in Kampala in July 2010. The approach in the case is that the defendants need certain information, held by the Kenya government, and without which they cannot defend themselves effectively. The suit is pending hearing.
(e)The Mombasa case in which Justice Ojwang’ commended ICJ
During the year, a petition was filed challenging the jurisdiction of the ICC court to handle the post election violence cases in Kenya on the grounds that such jurisdiction would be unconstitutional. ICJ-Kenya filed as an interested party in this matter and provided the court with relevant jurisprudence and best practice concerning the invocation of complementary jurisdiction. The court dismissed the petition. Justice J B Ojwang’, then a High Court judge, who presided over the matter, praised ICJ-Kenya’s timely intervention indicating that we had enriched local jurisdiction.
(f)The IDP Litigation
ICJ Kenya working with a number of civil society organisations have just filed a suit in the High court on behalf of persons displaced by the post election violence. The suit relies on the responsibility of the state to protect all citizens and alleges that this responsibility was breached in relation to persons who were internally displaced by the violence, for whom it seeks a number remedies, including reparations.
(g)The Al Amin Kimathi case
During the year, ICJ Kenya was involved in a multi-pronged endeavour which led to the release of Al Amin Kimathi, who had been arrested in Uganda in September 2010 with Mbugua Mureithi, when they had visited the country to organise the defence of eight Kenyans originally arrested and transferred to that country for alleged involvement in the Kampala bombing on 7th July 2010. ICJ Kenya was involved in advocacy that led to a resolution by the Commonwealth Lawyers Association for the release of Kimathi in India in February 2010 and thereafter organised a fact-finding mission to Uganda in April 2011, which led to a meeting with the Chief Justice of Uganda, Justice Benjamin Odoki. ICJ Kenya has since filed a suit in the High Court invoking the constitutional freedom of information provisions with a view to finding out how rendition between Kenya and Uganda, which led to the transfer of the original Kenyan defendants to Uganda, is organised. The suit is pending.
(h)The Okemo/Gichuru Extradition case
ICJ Kenya applied to participate as amicus curiae in the case in which Kenya seeks the extradition of former finance minister, Chris Okemo and former Kenya Power Managing Director, Samuel Gichuru, to Jersey to stand trial for money laundering and allied charges. ICJ Kenya’s involvement directly forestalled a challenge by Gichuru and Okemo which would have brought an end to the extradition proceedings in a magistrate’s court and paved the way to a hearing of the extradition proceedings on merit.