The High Court in Busia has ordered the Interior Cabinet Secretary and the Attorney General to initiate the parliamentary ratification and domestication of the International Convention for the Protection of All Persons from Enforced Disappearance (ICPED), ending a nearly two-decade legislative delay since Kenya signed the global treaty in 2007.
Delivering judgment on November 13, 2026, Justice S. Mohochi held that the Executive’s prolonged failure to domesticate the convention has created a dangerous legal vacuum that allows state elements to carry out forced disappearances with impunity.
In his analysis, Justice Mohochi noted that Kenya signed ICPED on February 6, 2007, yet after 19 years and nine months, the country has still neither ratified the instrument nor enacted domestic legislation criminalizing enforced disappearance as a standalone offense.
Citing Article 21(4) of the Constitution, which obligates the State to enact and implement legislation to fulfill its international human rights obligations, the court linked this statutory gap directly to recurring abductions. Justice Mohochi also took judicial notice of the Senate Standing Committee on Justice, Legal Affairs and Human Rights inquiry report on extrajudicial killings and enforced disappearances, which highlighted the absence of a specific statutory framework.
“Furthermore, the court takes judicial notice of the continued failure by the Respondents collectively to take steps under Article 21(4) of the Constitution to enact and implement legislation to fulfill its international obligations in respect of human rights and fundamental freedoms by ratifying the International Convention on the Protection of All Persons from Enforced Disappearance (ICPED), creating a fertile lacuna for elements within the state to perpetuate enforced disappearances with impunity necessitating appropriate structural interdict to cure the same,” Justice Mohochi ruled in paragraph 75 of the judgment.
Invoking the court’s constitutional mandate under Article 23(3) to grant structural interdicts, Justice Mohochi issued binding timelines for the Executive and Parliament under the Treaty Making and Ratification Act (No. 45 of 2012):
- Cabinet Approval and Transmission to Parliament (Within 90 Days): The Cabinet Secretary for Interior and National Administration and the Attorney General must prepare and submit a Cabinet Memorandum alongside the ICPED treaty to the Cabinet for approval, and subsequently transmit the instruments to the relevant parliamentary committees, specifically the Departmental Committee on Defence, Intelligence and Foreign Relations, and the Departmental Committee on Justice and Legal Affairs, for consideration, ratification, and legislative domestication.
- Compliance Affidavit and Legislative Timeline (Within 120 Days): The Attorney General must file a sworn Compliance Affidavit in the High Court within 120 days confirming the submission of the treaty instruments to Parliament and detailing the exact legislative timeline for enacting a standalone statute prohibiting and punishing enforced disappearances.
Justice Mohochi cautioned that any party that disobeys, neglects, or refuses to comply with the structural interdicts within the stipulated timelines will be held in contempt of court and face arrest, committal to civil jail for up to six months, personal fines, or property sequestration.
Related context from the ruling
1. The Busia Abduction Case (Okiya Omtatah Okoiti & Another v IG of Police & 9 Others)
The treaty directive stems from a landmark judgment ordering top security chiefs to produce abducted Busia electronics merchant Ahmed Ibrahim Ali Mohamed within 48 hours, dead or alive, after he vanished incommunicado for 292 days following a January 25, 2026 roadblock interception outside Korinda Main Prison. Justice Mohochi dismantled the State’s claim that he was kidnapped by “criminals posing as police,” awarded Ksh. 5.84 million in constitutional damages, and ordered police chiefs to tender formal apologies at Vigilance House and on Busia local radio stations.
2. Judicial Rebuke of IPOA
In the same ruling, Justice Mohochi castigated the Independent Policing Oversight Authority (IPOA) for sitting on the fence while the Directorate of Criminal Investigations (DCI) probed allegations implicating fellow officers, calling the watchdog’s passive stance “totally shameful and untenable.” The court stripped police of investigative control, ordered all files and Busia Weighbridge CCTV footage handed over to IPOA within seven days, and directed the IPOA Chairperson to assume exclusive control of the probe and report back to the court within 45 days.
