International Justice Monitor

A project of the Open Society Justice Initiative

Sudan’s leader raises a storm over arrest warrant supported by Kenyan Court

Sudanese President Omar Ahmad Hassan alBashir has only visited Kenya twice in the past six years, so what is all the fuss about Kenya’s judiciary reaffirming an International Criminal Court (ICC) arrest warrant for the Sudanese leader?

The easiest thing for the Sudanese leader to do to avoid further controversy is not to visit the Kenya, even if he is invited by his counterpart, President Mwai Kibaki. That should not be difficult considering he has only visited Kenya once since the ICC issued its first warrant of arrest for him in 2009. That visit took place in August 2010 when Kenya was marking the official start of its new constitution. Before that he was last in Kenya in January 2005 to sign a peace deal with the then main southern Sudan rebel group to end more than two decades of war.

As concerns the risk of arrest, Bashir has been careful to avoid countries that have warned they will cooperate with the ICC and arrest him, despite a July 2009 African Union decision not to cooperate with the court as far as the Bashir warrant is concerned.

For instance, the Sudanese leader did not go to South Africa for the opening ceremonies of soccer’s World Cup, which was held there last year once that country said it would arrest him if he traveled there. It had been suggested Bashir would go to South Africa for the World Cup, but in the lead up to an African Union heads of state summit Uganda hosted in July 2010, the country gave mixed signals about his welcome. Bashir did not join his fellow leaders for a routine AU meeting, yet it does not appear that he sees the Kenya situation in the same light.

In that case, his next best option is to make a legal challenge to Kenyan High Court’s decision. He could argue that Kenya is obligated to follow an African Union decision not to execute the warrant against him. The African Union does not want the warrants effected in order to bolster fragile peace efforts in Sudan’s western region of Darfur. The two arrests warrants that the ICC has issued are in respect of the Darfur conflict. The ICC has asked members states, Kenya being one of them, to execute the warrants so that the Sudanese president can face proceedings against him for ten counts of crimes against humanity and genocide.

However, earlier this month the ICC Pre-Trial Chamber made two rulings in light of Bashir’s recent travel to Chad and Malawi that the African Union’s decision does not nullify the Court’s arrest warrant for Bashir nor does it bar African countries that are also ICC member states from executing it. The Chamber made the rulings after Bashir visited Chad in August and Malawi in October, both of which are ICC member states.

To challenge the Kenyan High Court’s ruling, however, Bashir would have to become a new person. When the first ICC arrest warrant was issued in 2009, he did not go and surrender himself to the Court or even make a legal challenge to its decision. Instead, he traveled to a handful of African states in defiance of the ICC. To date he has traveled to several African and Arab countries, but only three of them are ICC member states: Chad, Malawi, and Kenya.

Rather than keeping quiet and letting the issue blow away, Bashir’a government chose to lash out at Kenya after the High Court issued an arrest warrant for the Sudanese leader in November this year and required the Minister of State for Internal Security to execute it.

The Sudanese government did not just lash out at Kenya. It also threatened to take the rare step of imposing a series of sanctions on another African country that included breaking diplomatic ties with Kenya, having 1,500 Kenyans living in Sudan expelled, and Kenya’s tea trade and aviation industry disrupted.

The threat is reminiscent of Sudan’s reaction when the ICC announced its first arrest warrant for Bashir in 2009. Within days, Sudan had expelled 16 international and local nongovernmental organizations working in Darfur, accusing them of passing on information to the ICC.

To forestall such sanctions, Kenya’s President Mwai Kibaki dispatched Minister of State for Defence Yusuf Haji and Foreign Affairs Minister Moses Wetangula to the Sudanese capital, Khartoum, to get Bashir to withdraw the threats and inform him that Kenya will appeal the High Court ruling. Wetangula later informed parliament on December 6 that the reason Kenya had responded this way was not just the threat of sanctions, but also there are unresolved issues between Sudan and South Sudan, which only seceded from Sudan in January this year. Wetangula said that the High Court decision complicated Kenyan diplomatic efforts to ease tensions between the two countries.

Kenya chairs the subcommittee on Sudan at the Intergovernmental Authority on Development, or IGAD. The subcommittee has previously focused on mediating an end to a decades-long war between Khartoum and what was then its southern region. That war ended with a peace deal in January 2005. The deal itself elapsed this year when southern Sudanese voted to secede, under provisions of the peace deal, and form their own nation, South Sudan, in January. However, there are territorial issues that remain unresolved between Sudan and South Sudan that Kenya is involved in trying to mediate.

The latest controversy over the Bashir arrest warrants comes from a court case that the Kenya section of the International Commission of Jurists (ICJ) filed in November 2010. The Kenya Section of ICJ filed the case after the Sudanese leader visited Kenya for a few hours on August 27, 2010 during ceremonies to bring into effect Kenya’s new constitution. The visit outraged human rights activists among others, especially because the new constitution expands the democratic space in Kenya and has taken decades and dozens of lives to come into existence. High Court Judge Nicholas Ombija made his ruling in the case on November 28, inadvertently sparking a diplomatic row between Kenya and Sudan. The Kenyan government is now appealing that ruling. The Court of Appeals heard preliminary objections to the case on December 20 and will issue its decision next month.

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