International Justice Monitor

A project of the Open Society Justice Initiative

Kenyan court says AG can continue with appeal against Bashir warrant

Kenya’s second highest court has allowed the Attorney General to continue with an appeal case he has filed challenging a High Court ruling that the Kenyan government must arrest Sudan’s leader if he comes to the country.

A three-man bench of the Court of Appeal made the decision in response to a preliminary objection against the Attorney General pursuing the appeal that the Kenya Section of the International Commission of Jurists (ICJ) submitted. ICJ-Kenya had contended that between the time it first argued in November 2010 for the government to be compelled to arrest Sudanese President Omar Ahmad Hassan al-Bashir and when the High Court made its ruling a year later, the Attorney General had been stripped of powers of criminal prosecution and an independent Director of Public Prosecutions had been appointed. Therefore the Attorney General should not be allowed to argue a criminal case, ICJ-Kenya lawyer Wilfred Nderitu argued in December last year (see earlier story here).

Court of Appeal judges Emmanuel O’Kubasu, Erastus Githinji, and Onyango Otieno disagreed in their decision issued on February 17, saying that the case before them is neither a civil nor a criminal case because the question before the court is about enforcement of a court order.

“In view of the foregoing, we are satisfied that the Attorney General is a proper party to these proceedings and we accordingly find no merit in the preliminary objection,” the judges said in their ruling.

ICJ-Kenya had raised the preliminary objection in December when the appeal case first came up for hearing. The Court of Appeal said it would issue its decision at the end of January but was unable to do so because the judges went to the port of city of Mombasa to adjudicate other appeals there.

No date has been set for when the judges will continue with the case.

When they next sit they will be expected to hear arguments on the Attorney General’s application for a stay against the enforcement of the International Criminal Court (ICC) arrest warrant the High Court issued November last year until the main appeal is heard and determined. In December, the Attorney General had applied for interim orders to be issued while the judges determined the preliminary objection. The judges rejected that application.

For now, the High Court’s order to the government to arrest al-Bashir if he visits Kenya still stands.

Nderitu told ICC Kenya Monitor he intends to appeal against the Court of Appeal’s dismissal of his preliminary objection before the Supreme Court, the country’s highest court.

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