Political violence may land top leaders at ICC, warn experts

Youths at Nyandiwa shopping centre in Homa Bay County during the Linda Mwanachi rally on August 16, 2026. [Sammy Omingo, Standard]

Kenya is quickly hurtling towards being a guest of the International Criminal Court (ICC), legal experts now warn.

Although High Court Judge Lawrence Mugambi in May said that Kenya is not yet a failed state, legal experts say that failure to act on goons and ethnic balkanisation by politicians are red flags that can invoke the complementary justice system of the ICC.

They argue that the intention is to clip the ‘big fish’ who either turn a blind eye when atrocities happen or are the persons used to facilitate violence.

Justice Mugambi, in his judgment, said that there was insufficient evidence produced in court to demonstrate that Kenya’s national systems had failed in addressing abductions and deaths in custody.

“Kenya has not yet reached a point where it is unable to handle such matters,” said Justice Mugambi.

However, senior lawyer Paul Muite, on Thursday, said that the political goodwill to deal with the vices is lacking.

Muite insisted that the country’s security organogram starts with the National Security Council, where all security heads, the President, Deputy President, and the Defence and Interior Cabinet Secretaries sit.

The senior lawyer was of the view that if the top organ does not have the resolve to deal with the issue, and the Director of Public Prosecutions (DPP) and National Cohesion and Integration Commission (NCIC) do not tame the loose tongues, then ICC prosecutors can step in.

“Kenyans want the ICC to take up the ongoing goons' violence, especially those goons working with the Police and enjoying Executive protection have to convince the ICC that Local Institutions are unable to deal with these crimes because they're State captured,” said Muite.

His sentiments were echoed by lawyer Ochieng Oginga, who told The Standard that cases to be referred ought to be serious crimes, which include genocide, crimes against humanity, war crimes and the crime of aggression.

Oginga added that Article 5 of the Rome Statute would only apply if there are rampant incidents which relate to the furtherance of a political agenda or policy against the citizenry.

“In the context of what is currently happening in Kenya, a case may be made for the offence of Crimes against Humanity; however, it must be demonstrated that the goon attacks are rampant, widespread or systematic and directed against civilian populations.”

“It should be understood that an ‘attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 of Article 7 of the Rome Statute, against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attacks,” said Oginga.

However, he was of the view that the lowest-hanging fruit to deal with goons is to either initiate private prosecution if and when the DPP will not act, and if the same fails, then it would mean the issues can be escalated.

“Easiest available remedy would be first to exhaust the local remedies by pursuing private prosecutions, where the Office of the Director of Public Prosecutions and the State have failed to undertake any such investigations. Perhaps this would be a key starting point to build a case for admissibility and invocation of the ICC jurisdiction,” he noted, adding that the East African Court of Justice (EACJ) has no powers to hear criminal cases.

Lawyer Adrian Kamotho also weighed in on the issue, saying that the judicial system is capable of handling the strife being witnessed and that the call for an ICC probe is too early.

“There is absolutely no justification for the call for an ICC intervention from both a factual and legal standpoint. Flowing from the 2010 Constitution, Kenya's criminal justice system has tremendously evolved and ranks among the best globally. The cited grievances do not in any manner fall near the admissibility threshold set by Article 17 of the Rome Statute. Comparatively, the wheels of justice roll much faster in Kenya compared to other jurisdictions including the ICC. On average, criminal cases have a turnaround time of 1-3 years compared to an average of 20 years at the ICC.”

Lawyer Danstan Omari also said that the atrocities happening in the country cannot qualify for referral to the ICC.

He noted that State Parties, civil societies and opposition leaders can report to the Office of the Prosecutor, but noted that with several persons being arrested over goonism and police officers being called to account, it will be difficult to have them accepted by the court.

Omari said that even if the ICC does not come calling, the President can be pursued for the crimes happening in the country, just as South Africa’s former President Jacob Zuma.

The lawyer insisted that the letters to the ICC are political manoeuvres, which he added are a bad image for the country if the President does not act.

Immediate former Law Society of Kenya President Mwaura Kabata was of the view that the pictures all over the country have the prints for ICC cases.

He said that the DPP has not taken charge in taming the current situation. Kabata observed that Kenya has only tried to punish alleged perpetrators and police officers once under the International Crimes law when Baby Pendo was killed.

“The Situation in Kenya is not new to the ICC. We may need to revisit the International Criminal Court prosecutorial sanctions since there has been no attempt by the independent office of the DPP to take charge of this dangerous trend.”

“We have witnessed police officers either accompanying goons in wanton destruction of life and property at best or unable to protect innocent civilians at worst. The offences of Murder and forceful deportation of people is printed all over the Kenyan political landscape,” said Kabata.

Lawyer Kibe Mungai explained that there is nothing that stops the ICC’s complementary system of justice from being invoked in the country. He was of the view that political actors are drumming up for war while the police are not dealing with goons.

In the case before Justice Mugambi, civil society groups asked the High Court to refer abduction cases to the ICC.

Two human rights groups, Kituo cha Sheria and Mathare Social Justice Centre, in their joint case argued that failure to tame the abductions and enforced disappearances under the Kenya Kwanza government ought to be investigated and prosecuted by the international court.

They sued the Attorney General, arguing that the Inspector General of Police had allegedly admitted that the police did not know who the abductors were and the whereabouts of abductees.

Their lawyer, Dr John Khaminwa, said that the abductions qualify to be crimes against humanity.

He said that only the ICC prosecutor can help Kenyans resolve the mystery and punish those at the heart of it.

“With the admission from the Inspector General of Police that the National Police Service cannot investigate the recent spate of abductions nor make any arrests it is clear that the National Police Service is failing in its duty to protect the people in the Republic,” argued Khaminwa.

He argued that the police should have already traced the victims and apprehended the culprits.

Nevertheless, Khaminwa said that the Kenya Kwanza administration has, since June 2024, failed to bring to book those behind the abductions.

He cited abductions during the Gen-Z protests, the killing of youths by police officers and others maimed, as evidence of the government's failure to tame lawlessness.

“The duty of any civilized government at the first instance is to protect its citizens from any harm caused by any of its actions. That as it appears that the National Police Service is incapable of conducting the investigations, this court has the duty to protect and defend the people of the Republic by referring the matter of the enforced disappearances to the International Criminal Court,” argued Khaminwa.

Billy Mwangi was missing alongside Peter Muteti, Bernard Kavuli, Gideon Kibet Bull and his brother Ronny Kiplagat, and Steve Kavingo for 11 days.

Khaminwa claimed that the government was behind the abductions. He said the abductions were meant to silence those who are vocal against President William Ruto-led administration.

“It has been well documented that critics of the Government of the day have been unlawfully abducted and held at secret locations by Government agents as an act of intimidation to curtail demonstrations and their constitutional right to freedom of expression. Families of the abducted victims are living in emotional and physical distress for the lack of information or investigation by national security organs,” he claimed.

Mathare Social Justice Centre coordinator Gacheke Gachihi, in his affidavit, told the court that the government was aware of the abductions but was unable or unwilling to intervene.

The AG and the DPP argued that there was evidence to show that they had failed to tame the atrocities.