Kenya told ICC judges no visit expected by Sudan president

November 1, 2010 (WASHINGTON) – The Kenyan government sent an official response to the judges of the International Criminal Court (ICC) last week, letting them know that the Sudanese president Omer Hassan Al-Bashir will not travel to Nairobi for the Inter-Governmental Authority for Development (IGAD) summit, according to court documents.

Bashir’s expected attendance at the IGAD summit has generated controversy and subsequently forced the organizers to move it to Addis Ababa. It was later announced that the summit is to be postponed to a later date although there was no official explanation for the delay.

The ICC has issued two warrants for Bashir, one dating from March 2009 on five counts of crimes against humanity and two counts of war crimes, and one issued in July 2010, on three counts of genocide.

Theoretically, Kenya as a full ICC member has a legal obligation to arrest Bashir should he set foot on its territory. However, last August it chose to invite the Sudanese president to attend the promulgation of the country’s new constitution without apprehending him. The decision made Kenya come under intense criticism from Western countries and even caused rifts within its coalition government as prime minister Raila Odinga condemned the visit saying he was not made aware of it.

Following news of the scheduled visit, the ICC judges asked Kenya “to take any necessary measure to ensure” Bashir is arrested and turned over for trial or explain “any problem which would impede or prevent” his arrest.

The then Kenyan Foreign Minister Moses Wetangula had said it was logical for the meeting to take place at the African Union’s (AU) headquarters in Addis Ababa and denied that the change of venues was because of ICC pressure.

“We are trying to see if we can have it in Addis, which is the seat of the AU (African Union), so that the twin bodies of IGAD and the AU itself can deal with the issues, in preparation for the January 9 referendum,” Wetangula told Reuters by phone.

“We have not and we will not divert any meetings out of Nairobi because of ICC. ICC does not have a hold on Kenya, we are a signatory to a treaty establishing it so we cannot live under fear over a treaty that we are just a party to,” he said.

However, the Hague-based tribunal on Monday released two official responses from the Kenyan government to the judges’ request. The first came via email from the from the Kenyan attorney general Amos Wako on October 28th stating that “[t]he IG AD Meeting will not be held in Kenya and therefore H. E. Mr. Omar Hassan Ahmad Al Bashir will not be in Kenya on 30th October 2010”.

On October 29th at 3:30pm Hague time, the Kenyan Foreign ministry of foreign affairs sent another response by fax to the ICC registry which read that “the Government of Kenya is not aware of any impeding visit by Mr. Omar Hassan Al Bashir, President of the Republic of the Sudan to the Republic of Kenya”.

Neither responses made any reference to Kenya’s position on whether they are prepared to arrest Bashir should he visit.

Kenyan officials have argued that they are committed to an African Union (AU) decision stating that no country in the continent shall cooperate with ICC in apprehending Bashir. But several countries such as South Africa, Uganda and Botswana said they will not abide by these resolutions.

Last month, 23 pressure groups sent a letter to the Kenyan president Mwai Kibaki to protest Al-Bashir’s invite, saying that his visit would be “an insult” to the victims of Darfur conflict and make “a mockery” of Kenya’s commitment to the ICC.

“A return visit by Al-Bashir would make a mockery of Kenya’s declared commitment to the International Criminal Court, and would be an insult to victims of atrocities in Darfur and globally” said Hassan Shire Sheikh of the East and Horn of Africa Human Rights Defenders Projects.

The letter stated that Kenya’s domestic law, the International Crimes Act and the Kenyan Constitution all oblige the Kenyan government to adhere to its commitment to the ICC.

“For all of these reasons” says the letter “we urge the Kenyan government to clearly affirm its commitment to cooperate with the ICC, as states such as South Africa and Botswana have done, and clarify that President al-Bashir will be arrested should he enter Kenya.”

The letter said that arresting Al-Bashir would be “an important way to show respect for victims in Darfur, along with Kenya’s commitment to accountability for crimes committed during electoral violence in Kenya.

On October 17, the Legal Officer for the Kenya chapter of the International Commission of Jurists (ICJ), Stella Ndirangu, told Sudan Tribune that her group would seek court action to force the government to apprehend Al-Bashir should he attends the IGAD summit.

(ST)