By Jerry Okungu
Nairobi, Kenya

Three weeks ago, a Kenya High Court Judge made a ruling that should President Omar Al Bashir set foot in Kenya, the Attorney General and the Minister for Internal Security must arrest him and send him to The Hague to face charges of Crimes against Humanity.

Despite the fact that the court ruling was based on existing Kenyan laws under the new constitution and the fact that Kenya is a signatory to the Rome Statues, sections of the Coalition government were quick to condemn the ruling as insensitive to Kenya’s regional interests and in fact Kenya’s Minister for Foreign Affairs was quick to add that the judgment was incapable of being complied with. To the ordinary person on the street, the Minister was already telling the country that the government was unlikely to obey a court ruling when the time came.

To date, there are chances that Kenya’s Attorney General has filed an appeal against this judgment in the Court of Appeal. This appeal is obviously filed on behalf of one arm of the government that would like to see Bashir a free man in Kenya any time he feels like visiting our country.

Many of us may remember that on the day Kenya was promulgating the new constitution, Bashir was one of the distinguished international dignitaries despite the fact that his arrest warrant was already four years old.

Failure to arrest Bashir speaks volumes about our relationship with the ICC, an international criminal court to which we are signatory. Coupled with the fact that six of our citizens are facing similar charges arising out of the 2007 Pose Election Violence, one wonders how a country that is reluctant to arrest an international fugitive will handle its citizens should the court decide that they will stand trial early next year. Are we preparing the ground for defaulting on the same should the court find that our own Ocampo Six have a case to answer?

Failing to respect the International Criminal Court requirements may be the easier part. It is the consequences of such disregard that may deal a blow to Kenya’s standing in the Community of Nations especially at the United Nations. If you doubt me, ask Malawians what is happening to them after they failed to arrest Bashir when he visited their country last October.

According to a press release released this week, the ICC Pre-Trial Chamber 1 decided that the Republic of Malawi failed to cooperate with the Court by not arresting and surrendering Omar Al Bashir to the Court during his visit to Malawi in October this year.

The Chamber chose to refer the matter to both the United Nations Security Council and the Assembly of States Parties to the Rome Statute.

The Chamber found that there was no conflict between Malawi’s obligations towards the Court to arrest and surrender the suspect and its obligations under Customary International Law. The Judges indicated that this analysis also rubbished the African Union’s position, which the Republic of Malawi relied upon, and which refuses to comply with the ICC’s requests for the arrest of President Al Bashir.

The Chamber, recalling its previous decisions on the Al Bashir case, re-affirmed that “the current position of Omar Al Bashir as Head of a state which is not a party to the Statute has no effect on the Court’s jurisdiction over the present case”. The Chamber also indicated that the Republic of Malawi failed to comply with its obligations to consult with the Chamber by not bringing the issue of Omar Al Bashir’s immunity to the Chamber for its determination, as it was invited to do by the ICC Registry’s note verbale sent to the Malawi authorities on 13 October 2011.

In the December 12 decision, Pre-Trial Chamber I examined Malawi’s observations submitted on 11 November 2011 and considered that Customary International Law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes. The Judges noted that immunity for Heads of State before international courts has been rejected time and time again dating all the way back to World War I. Giving the examples of international prosecutions against Slobodan Milosevic, Charles Taylor, Muammar Gaddafi, Omar Al Bashir and Laurent Gbagbo, the Chamber noted that initiating international prosecutions against Heads of State has gained widespread recognition as accepted practice.

Now that Malawi has been the first country to be reported to the United Nations Security Council, will Kenya merely shrug this development as inconsequential to its case? The United Nations may be a toothless bulldog and may not bite as hard as some other member states I know. However, the mere censor by this international body can have far reaching political consequences. Being censored is tantamount to being cited for lack of respect for a lawful international institution. Coupled with the fact that Kenya hosts one of the largest UN offices on the globe, it would be disastrous if our actions made the world community doubt our sincerity in its institutions.

At another level, two Kenyans have gone to court to overturn Justice Ombijah’s ruling on the basis of his 2005 thesis for his Master’s degree in international law. These two Kenyans would like us to believe that their basic rights to trade wit Bashir will have been fundamentally violated should Khartoum deny them visas to travel to Sudan.

Since promulgating our new constitution, some Kenyans have been taking this rights issue too far. When did Bashir become Sudan and Sudan become Bashir? Must we bend our laws just because two greedy Kenyans want to trade with Sudan at the expense of the Sudanese lives in Darfur? I don’t think so. Kenya is better off obeying international laws which it has domesticated in our statues.
jerryokungu@gmail.com