Saturday, 3rd December 2011
By ALEX NDEGWA
The Government is walking a tightrope as it seeks to challenge the High Court’s directive ordering the arrest of Sudan President Omar al Bashir should he visit Kenya.
It’s a delicate balancing act for Kenya, which has committed to cooperate with the ICC, but is equally pressed by souring diplomatic relations with Sudan to seek to quash the arrest warrant against Bashir.
The International Criminal Court, whose judges are due to decide on crimes against humanity charges facing six Kenyans next month, has urged nations to enforce the arrest warrant and turn over Bashir to face trial for war crimes committed in Darfur.
Even as the Government went flat out to convince Sudan that their president would still visit Kenya, ICC Prosecutor Luis Moreno-Ocampo requested Pre-Trial Chamber I to issue an arrest warrant against the current Sudanese Defense Minister Abdelrahim Mohamed Hussein.
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| Sudanese Defense Minister Abdelrahim Mohamed Hussein. ICC has issued an arrest warrant against him for allegedly committing crimes against humanity in Dafur. [PICTURE: REUTERS] |
"Mr Hussein should be arrested in order to prevent him from continuing with the commission of crimes within the jurisdiction of the court," said Ocampo in a statement sent to newsrooms on Friday.
Kenya was condemned by the ICC for hosting the Sudan ruler in August, last year, when the new Constitution was proclaimed at a historic event in Uhuru Park.
The Government’s subsequent unsuccessful lobbying of the UN Security Council to defer the Kenyan cases and a weak admissibility challenge capped a string of gaffes.
Authorities have wielded sweeping reforms in key institutions and allowed the ICC to set up shop in Nairobi to buttress Kenya’s pending appeal to have the ICC cede jurisdiction of the cases under the Rome Statute’s complementarity principle.
Critically the Government would be reluctant to take action viewed as hostile to the ICC as Kenya anxiously awaits the outcome of the confirmation of charges hearings against the Ocampo Six.
Even as the Executive challenges the court ruling, it would want to do it in such a way that it is still seen as respecting the separation of powers. And on Friday, Ikolomani MP Bonny Khalwale opposed plans to have the arrest warrants against Bashir quashed.
"We want to tell Wetangula that the new Constitution protects separation of powers and how Kenya relates with international treaties. If they didn’t go to court to stop our six sons from going to The Hague, why are they bothered about Bashir? We know they are protecting him for selfish reasons. If Bashir has issues with the court ruling, let him simply not come to Kenya," Khalwale said.
Asked whether strained relations won’t jeopardise trade and put at risk Kenyans in Khartoum, he replied:
"Yes, it’s worrying. But we should be more worried about facing sanctions by the international community for protecting fugitives."
Gwasi MP John Mbadi said the Government should boldly come out in the open and state that it does not recognise the Rome Statutes instead of embarrassing herself internationally.
"We have allowed six of our own brothers to be tried at The Hague, yet here we are seeking to protect a president of a foreign country who is being sought by the International Criminal Court. It amounts to legalising impunity and atrocities," Mbadi said.
Amend ConstitutionMosop MP David Koech said Cabinet ministers should not pretend that they could negotiate with Sudan over an order that was given by a law court.
"The best the Government could do in the situation is to appeal against the ruling by the court. Alternatively, the Cabinet can propose for the amendment of the Constitution as we have domesticated international laws and treaties which are binding," Koech said.
Molo MP Joseph Kiuna said Kenya should not blindly sign international treaties that did not take care of the interest of the country.
"Although we have a new Constitution, we should learn from America which only signs treaties and agreements if their interests as a country are taken care of," Kiuna said.
Kiuna said Kenya should quickly find a way of wriggling out of the mess it finds itself in without causing a rift with neighbouring countries. On Thursday, Chief Justice Willy Mutunga told judges to remain independent and criticised members of the executive who are out to cow judges.
Yet while it is apparent that the challenge of the court ruling would not amuse the ICC, Kenya is in a dilemma over the raging diplomatic storm with the neighboring nation.
In a fit of rage, Khartoum expelled Kenya’s Ambassador Robert Mutua and recalled its envoy from Nairobi. However, normal diplomatic relations are set to be restored after Foreign Affairs Minister Wetangula met Bashir in Khartoum on Friday.
Nairobi does not want to alienate another regional nation after falling out with Eritrea over accusations Asmara was supplying arms to Al Shabaab.
Sudan’s case is even more delicate given some elements in Khartoum have felt Nairobi has drifted to the newly independent South Sudan.
Wetangula described the High Court ruling "unhelpful" to the push for regional peace and stability.
Wetangula cited reasons ranging from legal, diplomatic etiquette to national and continental interests, to justify an appeal by the Attorney General against the directive.
He termed the ruling an affront on sovereign immunity and the collective African Union position, urging the suspension of the ICC case against Bashir.
"It is important that the country’s national interests as well as the wider interest of the region that we live in are taken into account in matters of this nature," he said.
In 2009, AU Heads of State and Government cautioned against the indictment of President Bashir.
The AU had requested the UN Security Council to defer the ICC action against Bashir under Article 16 of the Rome Statute on threats to peace and security.
Kenya, too, had rallied the AU to support its petition to the UN Security Council on similar grounds to have the ICC defer the two cases on crimes against humanity arising from the 2007 post-election violence.
Wetangula argues that Kenya is the chair of the Igad sub-committee on Sudan and had "a legitimate and strategic interest in ensuring that both peace and justice are achieved in Sudan."
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