|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.