NAIROBI: The High Court of Kenya, in a landmark judgment, has held that the Kenyan Government violates the Constitution when it stays silent in the face of a citizen’s formal complaint against an international organisation that enjoys immunity from legal process.

In a judgment in a petition filed by the chairperson of Kenya Diaspora Alliance Shem Odongo Ochuodho, alongside with Abdurrahman Mokhtar (Libya); Roll Stephane NGOMAT (Gabon); and El Hacene Abdallah Bah Mbareck (Mauritania) as interested parties against the African Union Commission and its leadership before Justice Roselyne Aburili, it was found that ⁠immunity bars suit against the African Union, but not against the State.

By a Ruling of 3rd July 2026, the Court struck out the African Union Commission, the Economic, Social and Cultural Council (ECOSOCC) Standing Committee, the ECOSOCC Secretariat and the former Chairperson Moussa Faki Mahamat, holding that they enjoy immunity from every form of legal process under the General Convention on the Privileges and Immunities of the African Union and section 9 of the Privileges and Immunities Act, absent an express waiver, none of which was demonstrated.

The court further found out that immunity cannot create a vacuum of justice.

The Court retained jurisdiction to interrogate the constitutionality and legality of the conduct of Kenyan State organs, holding that where a citizen cannot sue, it is the duty of the Government, through the Ministry of Foreign Affairs, to take up the complaint through diplomatic channels.

Directive

The court directed that Dr Ochuodho as a Petitionner, and other ECOSOCC members such as Abdurrahman Mokhtar (Libya); Roll Stephane Ngomat (Gabon); El Hacene Abdallah Bah Mbareck (Mauritania) as interested parties, be reinstated to their positions.

“An order of mandamus compelling the 1st,2nd and 8th Respondents to immediately reinstate the Petitioner and to a large extend the interested parties to their rightful position as elected members of the ECOSOCC General Assembly, with all the attendant rights and privileges, for the remainder of their term,” notes the ruling.

It was realized that diplomatic discretion is not immunity.

While the decision whether to engage diplomatic channels rests with the Executive, the process by which the Government handles a citizen’s request must comply with the right to fair administrative action.

The Court identified four ways that right is breached: total inaction or “cold-shouldering”; absence of procedural fairness; failure to give written reasons; and arbitrary or unreasonable treatment of like cases.

Dr Ochuodho as a Petitioner was an elected member of the General Assembly of the African Union’s Economic, Social and Cultural Council (ECOSOCC) while Abdurrahman Mokhtar (Libya); Roll Stephane Ngomat (Gabon); El Hacene Abdallah Bah Mbareck (Mauritania) as interested parties to the ruling were respectively chairpersons of Trade & Industry; Peace & Security and Social Affairs of ECOSOCC.

Indefinite suspension

On 21st June 2022, they were suspended indefinitely, alongside seven other members, by the then Chairperson of the African Union Commission, without an inquiry by the ECOSOCC Disciplinary Committee and without a decision of the General Assembly, as required by ECOSOCC Statutes and Rules of Procedures.

Others who were suspended include two Nigerians Tunji Asaolu and John Oba. Others unfairly suspended include Abozer Elligai Elmana (Sudan); Abdurrahman Mokhtar (Libya); Roll Stephane Ngomat (Gabon); El Hacene Abdallah Bah Mbareck (Mauritania).

“A declaration that any actions or transactions carried on by the ECOSOCC Secretariat (the 8th Respondent) after the unlawful and indefinite suspension of the Petitioner and interested parties are illegal, null and void,” notes court document.

Ochuodho had days earlier written to the Minister for Foreign Affairs seeking the Government’s intervention but his letter was never answered.

The court further made a declaration of violation.

The Court declared that the failure of the Attorney General, the Ministry and Minister for Foreign Affairs, the Principal Secretary and the Ambassador to the African Union to address the Petitioner’s and to a large extent interested parties complaint violated their rights, and consequentially their rights of access to justice and to a fair hearing.

The Court additionally issued a supervisory order of mandamus compelling the Kenyan Respondents, within nine months of service of the Judgment, to develop and operationalise effective administrative mechanisms for receiving and processing complaints by Kenyan citizens working for international and regional organisations that enjoy immunity from legal process.

The Court expressly noted that the petition is not about the Petitioner alone: the issues raised affect every Kenyan citizen serving in international or regional organisations clothed with immunity.

The judgment converts what has long been a discretionary courtesy into an enforceable, supervised administrative duty.