AFRICANGLOBE – A Kenyan judge yesterday obligated the Attorney-General and Security minister to arrest Sudan President Omar Bashir should he set foot in Kenya. In an order seen to shame government officials who feted Bashir as a state guest during the constitution promulgation on August 27, 2010, Judge Nicholas Ombija decreed he must be arrested and sent off to The Hague to answer to charges of crime against humanity in relation to the Darfur genocide.
And should the state fail to execute the warrant, the judge said, the International Commission of Jurists Kenyan Chapter – which sought the court order – should go back to court and seek another order to compel the state to perform its duty under the international laws. Bashir has been indicted by the International Criminal Court for genocide crimes committed in Sudan.
The court also issued two warrants of arrest which have never been enforced. The jurists’ organisation said it was forced to move to court after the government invited Bashir to the ceremony on August 27, 2010.
Despite two warrants hanging over his head and two requests made by ICC to the Rome Statute member states to apprehend Bashir and hand him over so that he can face the law, the Sudanese President walked into the country and out without any trouble. The question of his arrest was never raised. Instead Kenyan officials gave excuses as to why they did not apprehend him.
Among the excuses given was that the African Union had requested for suspension of the warrant and Kenya being a member of the Union could not go against these wishes. The Kenya government cited strategic interest in the neighbouring country. Foreign Affairs assistant minister Richard Onyonka said arresting Bashir may have risked disrupting peace in Sudan. “Apart from being an immediate neighbour, Sudan’s stability is vitally linked to Kenya’s continued peace and well being,” he said.
Onyonka said Kenya has an obligation, both as a neighbour and as a mediator in the peace agreement, to keep talking with the leadership of Sudan’s power-sharing government to ensure that peace is sustained. He said the Kenya government also invited Salva Kiir, the Sudan vice-president who is now Southern Sudan’s leader, to attend the promulgation.
Kiir could not attend because government protocol does not allow the president and vice-president to travel abroad at the same time, Onyonka said. “We must have a peaceful resolution to the issues of Sudan and Kenya is going to make sure that we achieve the results,” he said. “If it means negotiating with both parties we shall.”
Transport minister Amos Kimunya said at the time: “It is important, as Kenyans, for us to appreciate that Kenyan interests must come first, regional interests come second and international interests come third.” Under the Rome Statute any member state is under obligation to arrest any individual accused of committing crimes against humanity irrespective of his or her state, where the crimes were committed or their social status.
Yesterday judge Ombija said having ratified the Rome Statute which created the ICC, Kenya is under duty to apprehend any war criminal. He said the international law forms part of Kenyan law and is recognised by the country’s constitution. This means the government’s failure to arrest Bashir amounts to violation of its duty. The ICJ Kenyan Chapter blamed the Kenya government for failing to arrest Bashir when he visited the country.
According to ICJ, the Kenya government, in utter disregard of its obligation under international law, failed to arrest Bashir despite the existence of two warrants of arrest issued by ICC. The government however opposed the case and issuance of warrant saying ICJ does not have powers to institute the case. It said the request for provisional warrant of arrest against Bashir ought to be made by ICC first.
In one of its letters, the ICJ called for arrest of Bashir in the event he turns up for the Igad Conference scheduled to be held in the country which was later moved to Ethiopia for fear that he will be arrested. A statement from the ICC Registrar, Silvana Arbia, had said: “The International Criminal Court requested the Republic of Kenya to inform the Chamber, no later than 29 October, about any problem which would impede or prevent the arrest and surrender of Omar al-Bashir in the event that he visits the country on 30 October, 2010.”