Kenya’s high court considers request that forces government to arrest Sudanese president

November 18, 2010 (WASHINGTON) – The Kenyan High Court received a request on Wednesday from the local chapter of the International Commission of Jurists (ICJ) that seeks an order from the judges that forces the government to arrest the Sudanese president Omer Hassan Al-Bashir should he set foot in the country.

The International Criminal Court (ICC), to which Kenya is a full member, issued an arrest warrant for Bashir in 2009 for war crimes in Darfur and added genocide to the indictment this year. Bashir rejects the charges saying they are part of a Western conspiracy to topple his regime.

However, the Kenyan government allowed Bashir last August to attend the promulgation of the new constitution without apprehending him as required under its obligations to the Rome Statute.

One of the arguments put forward by some Kenyan officials that they are adhering to resolutions adopted by the African Union (AU) that instructs member states not to arrest Bashir even if they are ICC members.

Local media reported that the ICJ wants the High court judges to order the Ministry of State for Provincial Administration to execute the arrest warrant against the Sudanese leader should he visit again.

“There are also two requests for cooperation in the arrest in the arrest and surrender of Omar al Bashir issued by ICC on March 6, 2009 and July 21, 2010 to states that are parties to the Rome Statute,” ICJ Executive Director George Kegoro said in the filing made with the court.

“Al Bashir came to Kenya on August 27 and the Kenyan authorities in utter disregard of their obligations under the international law and the laws of Kenyan failed to enforce the warrants of arrest…. The applicant is apprehensive that should Omar al Bashir come to Kenya, the respondents in total disregard of the law will once again fail to effect an arrest warrant against him as they previously did”.

Yesterday after hearing the case filed by ICJ, High Court Judge Nicholas Ombija directed that the suit papers be served on the Attorney General. The parties will appear before him for hearing next Tuesday.

The case represents the first legal challenge to decisions made by governments to flout their obligations to the Rome Statute particularly in Africa which rallied behind Bashir.

Some groups in South Africa threatened to go to court for the same purpose but the government backed down and warned publicly that it will arrest Bashir if he visits.

The special summit of the Inter-Governmental Authority for Development (IGAD) was relocated from Nairobi to Addis Ababa in October after the ICC judges asked Kenya last month to arrest Bashir if he attends or in the alternative to inform them of “any problem which would impede or prevent” his apprehension.

The Kenyan government responded by saying that the Sudanese president is not expected to visit.

(ST)