The Mount Elgon Region of Kenya and Uganda.

On June 29, 2011, The Independent Medical Legal Unit (IMLU) achieved a monumental victory in the East African Court of Justice (EACJ) in its case against the Republic of Kenya, when the court denied a motion to dismiss filed by Kenya’s Attorney General and ordered the case to proceed. IMLU is a non-governmental organization with a mandate to protect Kenyans from human rights violations perpetrated by the government.  IMLU filed the reference against the Kenyan government seeking to hold it accountable for its failure to investigate and, if necessary, prosecute members of the Kenyan security forces responsible for extrajudicial killings, torture, and other human rights violations committed in Mt. Elgon District during the 2006-2008 violent conflict between Kenyan security forces and the insurgent Sabaot Land Defense Force (SLDF). Human Rights Watch (HRW) estimates that Kenyan security forces carried out hundreds of extrajudicial killings, detained and tortured thousands more, and are responsible for nearly 200 forced disappearances in violations of several international human rights conventions as well as the Kenyan Constitution.

In seeking dismissal, the Attorney General relied on Article 27 of the Treaty for the Establishment of the East African Community (Treaty), which limits the jurisdiction of the EACJ to interpreting and applying the Treaty and expressly restricts the Court from deciding cases related to human rights issues until a protocol—not yet completed—expands the Court’s jurisdiction over such cases. In response, the IMLU claimed that a good faith reading of Article 27 of the Treaty pursuant to the Vienna Convention on the Law of Treaties established the jurisdiction of the Court to hear allegations of violations of the fundamental principles of the Treaty. In the present case, these principles are set forth in Articles 6(d) and 7(2)—the obligation of states parties to ensure rule of law and good governance, and to maintain universal human rights standards. The EACJ agreed with IMLU and asserted its jurisdiction despite the Attorney General’s objections. According to the Court, IMLU allegations are based on violations of fundamental Treaty principles, and the mere mention of alleged human rights violations in the reference does not purge the Court of its jurisdiction over the case.

The Attorney General also argued that the reference was time barred pursuant to Article 30(2) of the Treaty. According to the Attorney General, IMLU knew about the complaint in 2008 and failed to file the reference to the EACJ within two months thereafter. Yet the EACJ rejected this argument, ruling that the alleged violations—Kenyan government’s failure to investigate alleged human rights violations— are continuous from the time of the incident until IMLU concluded that the Kenyan government was not going to investigate and, where necessary, prosecute for alleged human rights violations.

Though IMLU gained a significant victory with the EACJ ruling against the dismissal of the reference as a whole, the Court dismissed the case against the Minister for Internal Security of Republic of Kenya, the Chief of General Staff of Republic of Kenya, and the Commissioner of Police of the Republic of Kenya—all of whom IMLU sought to hold accountable. The EACJ ruled that under Article 30, the individuals named in the lawsuit cannot be joined because they are merely employees of the Kenyan government and are therefore neither a state party nor an institution of the East African Community (EAC) that can be sued in the EACJ. Accordingly, only the Kenyan government can be held accountable by the EACJ for failing to ensure the rule of law, so only the Attorney General may be named in the lawsuit.

The EACJ’s rejection of the Attorney General’s opposition is significant beyond the case at issue. The decision effectively expands the jurisdiction of the EACJ to cases that detail human rights abuses, provided those cases focus primarily on violations of the Treaty. The failure of the Kenyan government to investigate details of atrocities committed during conflict in the Mt. Elgon region leaves the families of victims in plight with no means of obtaining closure and justice for their loved ones. The reference filed before the EACJ seeks to hold the Kenyan government accountable for this failure, and the court’s denial of the respondent’s opposition permits the case to move forward.