Kenya’s chief justice warns government against circumventing court orders

December 1, 2011 (KHARTOUM) – The Kenyan chief justice on Thursday stepped to the defense of his institution following a high court judge order this week to the government that it arrests Sudanese president Omer Hassan al-Bashir should he sets foot in the country.

The ruling was in response to a motion filed by the Kenyan chapter of the International Commission of Jurists (ICJ) last year following Bashir’s visit and the failure by the government to arrest him in compliance with the International Criminal Court (ICC) arrest warrant for him.

Kenya is an ICC member but said that the African Union (AU) decisions ordering its members not to cooperate with the court in apprehending Bashir overrules its obligation under the Rome Statute.

But Judge Nicholas Ombija disagreed with the government’s assertions and ordered the minister of internal security to detain Bashir if he visits. The Kenyan government slammed the ruling saying it will harm its relations with Sudan and prevents it from effectively mediating in the north-south conflict.

“[A]s much as we respect the ruling of the High Court, we are aware that the Court does not operate in a vacuum. It is important that the country’s national interests as well as the wider interests of the region that we live in are taken into account in matters of this nature. Since our judicial system provides for right of appeal, we shall carefully look at the judgment with a view to requesting the Attorney General to expeditiously prefer an appeal in the matter,” Kenyan foreign minister Moses Wetangula said yesterday in a statement.

Wetangula even appeared to challenge the court’s order saying that Bashir will lead Sudan’s delegation to an Intergovernmental Authority on Development (IGAD) summit that could be held “in Kenya or elsewhere”.

But the Kenyan top judicial official Willy Mutunga warned the government to respect the law.

“To choose not to obey court orders is to overthrow our Constitution. Court orders apply universally to ordinary citizens, corporations, members of the Judiciary, Executive and Legislature. If a country chooses to live by anarchy, it must be ready to face the consequences of disregarding the law,” Mutunga said in a statement carried by Kenyan media.

“I urge all Kenyans and institutions of Government to adhere to the provisions of our institution and abide by the rule of law. The Constitution provides avenues to be followed where individuals or institutions are aggrieved by judicial decisions” he added.

Mutunga also stressed the independence of the Kenyan judiciary.

“In accordance with Article 160 of the Constitution of Kenya, 2010 each judicial officer is independent and is not subject to the control or direction of any person or authority in the dispensation of judicial duties….The Constitution provides, nay demands, that State officers should exercise their duties in a manner that is consistent with the purpose and objective of the Constitution,” he said.

“The Judiciary and its officers will not be intimidated to bend the law,” Mutunga warned.

The top judicial official also expressed concern over remarks made by officials regarding the ruling.

“It is worrying that senior Government officials can make disparaging public pronouncements that seek to undermine the independence of our judicial officers and ultimately the judicial system,” he said.

Meanwhile the Kenyan foreign minister met in Khartoum with Bashir carrying a letter from President Mwai Kibaki.

Sudan state media quoted foreign minister Ali Karti that Nairobi promised to seek annulment of the judge’s ruling and stressed the friendly ties between the two countries.

However there was no word on whether Sudan will reverse its decision expelling the Kenyan ambassador and recalling its own.

(ST)