The Government has bent over backwards to appease President Omar Hassan al-Bashir and assure him that he will not be arrested and spirited to the International Criminal Court (ICC) to answer charges of crimes against humanity.
Attorney General Githu Muigai has filed a case in the Court of Appeal seeking to overturn a High Court ruling that set off the storm, and an injunction to stop the execution in Kenya of any warrant of arrest against al-Bashir.
Sudan President Omar al-Bashir reads a letter from President Kibaki in Khartoum last Tuesday. Foreign Affairs minister Moses Wetangula held talks with President Bashir to defuse a diplomatic row over a High Court ruling ordering an arrest warrant against him for crimes against humanity. Photo: Reuters
Among the reasons the Kenya is fighting save its diplomatic relations with Sudan is the fact that the country is the fifth largest buyer of Kenyan tea. It buys up to Sh200 million of the crop annually, Wetangula said.
Sudan also threatened to close its airspace to Kenyan flights and said it would throw out up to 1,500 Kenyans living in the country
Kenya also has investments worth billions in Sudan and the latter has sponsored up to 250 Kenyan students studying in Khartoum.
Muigai wants High Court Judge Nicholas Ombijah’s decision delivered few days ago suspended, pending the lodging and determination of the State’s intended appeal.
It filed the application barely a week after Chief Justice Willy Mutunga defended the judge by warning the Executive against trying to intimidate judicial officers, or undermining the independence of the Judiciary.
Foreign Affairs Permanent Secretary, Thuita Mwangi has also sworn an affidavit in support of the Government’s intended appeal of the High Court ruling.
Justice Ombija’s ruling has drawn both support and condemnation from Members of Parliament (MPs) while human rights groups and civil society have attacked diplomatic efforts by Kenya to mollify al-Bashir.
Foreign Affairs Minister Moses Wetangula rushed to Khartoum early this week, to assure the Sudan leader that the court decision would be successfully challenged, a move seen as tantamount to predetermining the outcome of any intended appeal process, and a direct interference by the Executive arm of Government with the mandate of the Judiciary.
The Government’s reaction to Justice Ombija’s ruling is believed by many to have prompted the Chief Justice Mutunga to warning the Executive arm of Government to respect judges and stop interfering with the work of the Judiciary.
President al-Bashir initially suspended the Kenyan ambassador to Khartoum and recalled his envoy in Nairobi, but later rescinded the decision and gave Kenya a two-week ultimatum to withdraw the arrest warrant.
In the papers filed by Foreign Affairs Permanent Secretary Thuita Mwangi, through the Attorney General’s office, the Government informed the court that the ruling has created anxiety and threatened Kenya’s bilateral relations with Sudan.
"The further continuing uncertainty prevailing in the diplomatic and the bilateral relationship between the Republic of Sudan and Kenya is likely to adversely affect Kenyans living and working in Sudan, who are now threatened with expulsion," says Mwangi.
Thuita stated that it is not in public interest for Justice Ombijah’s orders to remain in force.
Jurisdiction of court
The PS indicated in the document filed at the court’s registry that Kenya plays a facilitative role in the Sudan process through the Inter-Governmental Authority on Development (IGAD) initiative and which lead to the establishment of the new democratic Republic of Southern Sudan, thereby enhancing peace in the region.
He said Justice Ombijah’s ruling delivered on November 28 has created uncertainty in the region.
Deputy Solicitor General, Ms Muthoni Kimani who filed for the AG, said it is not evident on what provisions of the Kenyan law the judge invoked the jurisdiction of the court to issue the provisional warrant of arrest.
She claimed the judge misinterpreted the role of the High Court vis-‡-vis the International Criminal Court (ICC) in applying an Article of the Constitution and International Crimes Act.
"The application before the judge of the Superior Court was not a proper case for application of International Customary Law; and universal jurisdiction," she stated.
Kimani claimed Justice Ombijah failed to appreciate that the immunity of a serving Head of State is guaranteed under the general rules of International Law, which are part of our laws by virtue of Article 2(5) of the constitution, whereas Article 2(6) qualifies any Treaties to ratification before becoming part of the laws of Kenya.
Article 2(5) states that the general rules of international law shall form part of the law of Kenya.
"He failed to consider the provisions of the Rome Statute relating to immunity from execution in respect of a sitting Head of State," she said in the suit papers.
The judge, she said, also failed to consider the delicate issues of immunity of a sitting president by not considering the Vienna Convention and the Privileges and Immunities Act.
Justice Ombijah issued a warrant of arrest against the Sudan President and ordered Internal Security Minister George Saitoti to effect it, if and when, al-Bashir sets foot on Kenyan soil.
If the Minister fails to execute the warrant, the judge said, the Kenyan Section of the International Commission for Jurists (ICJ) and any legal person who has the requisite mandate and capacity may be at liberty to do so.
"The Rome Statute obligations are in any case customary international law, which a State cannot contravene. Violating customary international law is internationally violating fundamental rules of intended public policy," he said. President al-Bashir was among dignitaries who attended promulgation of the constitution at Uhuru Park in Nairobi on August 27 last year.
He then left the country without being arrested, leaving a group of civil society members carrying out demonstrations in protest of the government’s actions.
ICJ then moved to court, saying that despite the existence of the warrants of arrest issued by ICC, police failed to arrest and hand him over to ICC.
Bashir was the first president to be indicted by the ICC, which is accusing him of genocide and war crimes in Darfur.
ICC’s registrar then sent a supplementary request on July 21, 2010 for cooperation to all State parties to the Rome Statute for the arrest and his surrender should he set foot on their territory.
Kenya is a State party to the Rome Statute having ratified it on March 15, 2005, hence becoming the 98th member.
The African Union (AU) has since opposed the ICC’s warrant of arrest against Bashir on grounds that it would paralyse its efforts and the United Nations to bring peace and justice in Sudan.
AU has also on several occasions called on its member States not to arrest the sitting President, accusing the ICC of targeting only Africans.
Bashir who was a brigadier in the Sudanese army came to power in 1989 after leading a group of soldiers in a military coup that ousted the government of Prime Minister Sadiq al-Mahdi.
About 2.7 million people have fled their homes since the conflict began in Darfur in 2003, and the UN says about 300,000 have died — mostly from disease.
Sudan’s government alleges the conflict has killed about 12,000 people and the number of dead has been exaggerated for political reasons.