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John Gathungu v. A-G and the Republic of Kenya

This case summary is being revised and will be updated soon

Court High Court of Kenya, Kenya
Decision date 28 October 2010
Keywords International Criminal Court (ICC), jurisdiction, Sovereignty
Other countries involved
  • Kenya
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Procedural history

In a case instigated before the Kenyan High Court on 22 September 2010, businessman Joseph Gathungu filed a lawsuit challenging the constitutionality of the investigation by the International Criminal Court (ICC) into the 2007-2008 election violence in Kenya. Gathungu claims that under the new Constitution of Kenya – adopted in August 2010 after a referendum – the investigation by the ICC is illegal. According to the suit, the investigation violates the new Constitution, as well as Kenyan sovereignty. Furthermore, the suit seeks to have Kenya’s ratification of the ICC declared illegal, as the ICC is not provided for in the new Constitution.

The suit was filed amid growing claims that Kenya should handle the prosecution of cases itself, most notably by Minister of Justice, Mutula Kilonzo. Nonetheless, on 21 September 2010, ICC Prosecutor, Luis Moreno-Ocampo indicated that he intends to present two cases involving some six accused who “bear the greatest responsibility” for the planning and execution of the post-election violence. On 28 October 2010 the Kenyan High Court declined the requests to halt the proceedings.

The ICC's relevant decisions concerning the situation in Kenya:


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Instruments cited

Constitution of Kenya, 6 May 2010

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Additional materials

'Kenya court declines man’s request against ICC', Daily Nation, 28 October 2010