FILE - Sudanese President Omer Hassan al Bashir
arrives at the promulgation of Kenya’s New Constitution
at the Uhuru Park grounds on August 27, 2010 in Nairobi (AFP)
The Sudanese government on Monday night took the surprise step of asking the Kenyan ambassador in Khartoum to leave the country after a High Court judge in Nairobi ordered the government to arrest president Omer Hassan al-Bashir.
Bashir is wanted by the International Criminal Court (ICC) based in The Hague since 2009 on ten counts of war crimes, crimes against humanity and genocide he allegedly masterminded in Sudan’s western region of Darfur.
African nations rallied behind Bashir and the African Union (AU) issued several resolutions directing its members not to cooperate with the court in apprehending the Sudanese leader.
Kenya, an ICC state party, allowed Bashir in August 2010 to visit drawing strong rebuke from Western nations and rights groups. It also angered the Orange Democratic Movement (ODM) headed by Prime Minister Raila Odinga which shares the coalition government with arty National Unity (PNU) led by president Mwai Kibaki.
In November 2010 the Kenyan High Court received a request from the local chapter of the International Commission of Jurists (ICJ) seeking to compel the government to execute the arrest warrant against Bashir should he visit again.
The court today dismissed the government’s argument that the ICJ has no standing to make such a request.
“I am satisfied that the applicant (ICJ-Kenya) has locus standi [the right to appear before a court] to seek the orders because Kenya is obligated to arrest him being a member state to the Rome Statute,” Judge Nicholas Ombija said in his ruling.
"The matter raised by the applicant and the orders sought are justifiable.... The application is thus tenable in law. I grant the orders sought and direct the minister of internal security to arrest President Bashir should be set foot in Kenya in future," Judge Nicholas Ombija said in his ruling.
Kenyan media on Tuesday quoted the foreign minister Moses Wetangula as being critical of the ruling, describing it as a "judgment in error" that "clearly shows the insensitivity of the court to international relations".
It is not clear if the Kenyan government intends to appeal today’s decision.
The ICJ has applauded the ruling and warned that President Kibaki and Attorney General would be in contempt of the Kenyan Courts and the Rome Statute if they did not comply.
"If the government does not execute this court warrant, it will not only be failing in its obligations as set out in the Rome Statute but also putting unnecessary and undue strain on the already bruised human rights records of the country after post-election violence serious crimes," said ICJ Deputy and Programmes Director Mwaura Nderi.
Sudan initially sought to downplay the court’s decision saying it will not affect its bilateral ties with Kenya and that it was more related to internal politics on dealing with the ICC.
"The bilateral ties are deeply-rooted and are governed by the charter of the African Union. We are waiting for the outcome of the contacts between Khartoum and Nairobi," Sudanese foreign ministry spokesperson Al-Obaid Marawih said at a news conference on Monday.
The foreign ministry in Khartoum also said that the court’s decision is closely linked to successes achieved by Bashir in visiting other countries including state parties like Kenya.
The statement went on to say that the ICC prosecutor has failed to convince the member states in the Rome Statute of arresting Bashir and other figures wanted by the court including those in relation to the Libya situation.
In separate statements to the London-based al-Sharq al-Awsat newspaper Marawih cleared the Kenyan government from responsibility for the court’s decision.
“It is difficult to say that the decision [is coming] from the state, but a court’s decision, and the prosecutor is not the executive, but the call was from the Kenyan branch of a European organization” Marawih said.
He added that a group of activists previously tried to persuade the Kenyan government and pressure it to adopt a political decision, and when they failed they sought a judicial ruling.
But in a matter of hours Khartoum decided to take a tougher stance.
“The Sudanese government has ordered the Kenyan ambassador to leave the country within 72 hours” Marawih told Agence France Presse (AFP).
“They have also ordered the Sudanese ambassador to leave Kenya and return to Khartoum,” he added.
An opposition leader in Sudan suggested to Sudan Tribune that Bashir may have personally ordered the expulsion.
“Now Bashir is in charge, he reacts and doesn’t think and nobody can dare to talk him off, especially when it comes to himself and the ICC,” said the opposition figure who asked not to be named.