The High Court has given the Kenyan government nine months to establish a system for handling complaints by citizens working for international organisations after officials failed to respond to a former African Union representative seeking government intervention.
Justice Roselyne Aburili ruled that the failure by senior government officials to respond to Shem Odongo Ochuodho’s complaint violated his constitutional right to fair administrative action.
The judge directed the Attorney General, Ministry of Foreign Affairs, Cabinet Secretary for Foreign Affairs, Principal Secretary for Foreign Affairs and Kenya’s Ambassador to the African Union to establish and operationalise the system within nine months of being served with the judgment.
The mechanism will provide a formal avenue for Kenyans working for international and regional organisations to raise complaints and obtain a response from the government, particularly in disputes involving institutions protected by diplomatic immunity.
Ochuodho had moved to court after he was suspended from the African Union’s Economic, Social and Cultural Council (ECOSOCC) in June 2022.
He argued that his suspension was unlawful and that he had been denied an opportunity to defend himself before the decision was made.
The former AU representative subsequently approached Kenyan government officials, asking them to intervene through diplomatic channels over his dispute with the organisation.
However, according to the court, the officials did not provide a meaningful response. Justice Aburili found that the government could not simply ignore a formal complaint from a citizen seeking diplomatic assistance, especially where the organisation involved enjoys immunity and cannot easily be sued before Kenyan courts.
The court, however, clarified that government officials were not required to guarantee the outcome sought by a complainant. Instead, they were required to consider the complaint, make a decision and communicate that decision to the affected citizen.
Where the government decides against pursuing diplomatic intervention, the court said reasons should be provided where required by law.
Justice Aburili described the government’s “Total silence” as a failure to provide the expeditious, efficient and fair administrative action guaranteed under Article 47 of the Constitution.
Ochuodho’s original dispute arose from his suspension from ECOSOCC. He claimed the AU had acted outside its own rules and denied him a fair hearing.
He argued that the ECOSOCC General Assembly, rather than the AU Commission Chairperson, had the authority to remove a member for conduct contrary to the organisation’s rules.
He further argued that no proper disciplinary inquiry had been conducted before his suspension.
The High Court did not, however, determine the substantive claims against the AU bodies because of their immunity from legal proceedings.
Justice Aburili noted that Kenya’s Constitution recognises international treaties and agreements ratified by the country, while domestic law grants certain international organisations immunity from legal proceedings.
The court relied on previous decisions recognising that such immunity can limit access to Kenyan courts where it is provided for under applicable international agreements.
According to the judgment, Ochuodho had written to Kenyan authorities seeking intervention over what he described as illegal activities within ECOSOCC. He was suspended on June 21, 2022.
The government officials named in the case did not file responses to the petition or make submissions before the court. Justice Aburili found that their failure to respond violated Ochuodho’s right to fair administrative action and affected his rights to access justice and a fair hearing.
However, by the time the case was determined, Ochuodho’s term at ECOSOCC had already expired in December 2022. The judge therefore found that ordering his reinstatement would serve no practical purpose. The court also could not compel the AU to reinstate him because of the organisation’s immunity.
Instead, the judge issued a broader order requiring the government to address the gap exposed by the case.
The government must now create a functioning process through which Kenyans working for international and regional organisations can submit complaints, have them considered by relevant authorities and receive formal responses.
