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| Sudanese president Omer Hassan al-Bashir |
A Kenyan judge on Monday
formally issued a provisional arrest warrant for the Sudanese president Omar
Hassan al-Bashir in line with a ruling he made late last year saying that
Nairobi had an obligation to apprehend him.
“Whereas the High Court of Kenya
Hereby issues this provisional warrant of arrest against the said Omar
al-Bashir and commands you, Professor George Saitoti, E.G.H., M.P., Minister of
State for Provincial Administration and Internal Security and, failing you, the
Minister for the time responsible for matters relating to national security, to
apprehend the said Omar al-Bashir should he come to Kenya, and to surrender him
to the International Criminal Court", said the warrant signed by judge
Nicholas Ombija.
Ombija is the same judge who granted a
motion filed by the Kenyan chapter of the International Commission of Jurists
(ICJ) that sought to compel Nairobi to detain the Sudanese leader if he sets
foot in the country.
Kenya is a member of the International
Criminal Court (ICC) which in 2009 and 2010 issued two arrest
warrants for Bashir on ten counts of war crimes,
crimes against humanity and genocide he allegedly committed in Sudan’s western
region of Darfur.
Despite the country’s legal obligation
under the ICC’s statute, it chose to receive Bashir in August 2010 without
arresting him, prompting the ICJ to move the issue to the local High Court.
Kenyan officials argue that they are
bound by African Union
(AU) resolutions instructing its members not to cooperate with the ICC with
regard to Bashir even if they are ICC members.
They also said the move would hamper
their mediation efforts between Khartoum and Juba in their ongoing dispute.
This prompted Kenya’s chief justice Willy Mutunga to warn the executive branch
that they should respect decisions of the judiciary.
In response to last year’s ruling,
Sudan ordered Kenya’s ambassador out of the country within 72 hours and
recalled its envoy in Nairobi as well. The decision was put on hold however,
following a visit by Kenyan foreign minister Moses Wetangula to Khartoum with a
letter from the Kenyan president Mwai Kibaki.
When he returned, Wetangula said that Bashir
had wanted to evict all Kenyans in Sudan, close airspace for planes heading to
Kenya and freeze bilateral trade, but this was reversed after his meeting with
the Sudanese leader.
But Sudan issued a statement shortly
after the visit giving Kenya two weeks to have the decision reversed or else it
will proceed with sanctions as originally planned. The deadline has passed
without any action on Khartoum’s part.
Last month the Sudanese ambassador to
Kenya Kamal Ismail Saeed downplayed the row further saying that the judge’s
ruling will not affect bilateral relations and that his country is determined
to strengthen ties further in all areas.
Kenya’s attorney general said last
month that the government appealed the judge’s order based on its conviction
that Bashir, as a sitting head of state, enjoys full immunity under
international law from criminal prosecution.
This week the appellate chamber was
expected to make a procedural decision on a preliminary objection raised by ICJ
stating that the Attorney General is not the proper representative of the
Kenyan government in criminal cases such as the one involving Bashir.
But the concerned judges were
reportedly out in the city of Mombasa and will set a new date for their ruling
on the matter which does not relate to the heart of the government’s appeal in
the case.
Kenyan official expect that the case
could last a year with a possibility that it could reach the Supreme Court.
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