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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.

Sudan’s President Omer Hassan al-Bashir reads a letter from his Kenyan counterpart Mwai Kibaki as he received Kenya’s foreign minister Moses Wetangula in Khartoum December 1, 2011 (Reuters)

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.


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  • 2 December 2011 09:33, by Dinka Dominated SPLA/M

    Oh Man I enjoyed reading this artical and i love it death to whoevery is aganist the rules of laws that set by country

    • 2 December 2011 11:19, by Sam.Eto

      So blind - here let me help you with your reading.

      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”.

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

    • 2 December 2011 12:41, by Dr.Feel Good

      These fake Arabs talks about Bush and Tony Blair to be tried in ICC. But you know what? Bush and Tony did not kill their own people, get that in your fanatic minds.Just get rid of Omar and come build a strong relationship with the south Sudan( The land of living kinds) becus nothing in your desert of north.

    • 2 December 2011 18:01, by Deng Ateny Lueth

      Kenya must Choose between the two, serving constitution or criminalogy. Kenya needs to stand firm just like Uganda when dealing with that terrorist government of North Sudan. Kenya should stay adhereance to the constitution of Kenya and arest Bashir should set foot in kenya period.

  • 2 December 2011 09:50, by Dekery

    Kenya Govt’,

    Mediation are over, why you want to be in relations with snegs? Don’t worry from the court ruling and don’t worry of south Sudan

    South Sudan has move completely away from this greedy ARABS with all our resources and soon we will be EAC where all our oil will be based at your port Mombasa in which you will benefit and we prefer you than the ARABS THIEVES


    • 2 December 2011 10:28, by Albino Kuel

      HAHAHAHA Bashir must face justice and whoever defend Mr.Bashir is a fool man in the World ,laws breakers are the worst people in this World so Bashir must face ICC by all mean.
      Wen Achieng-Malual

    • 2 December 2011 13:47, by Longa

      I think Kenyan Independent Court has set unprecedented example for other African governments to follow and see how independent court works. Law is law and should be abided by. African high courts are used by government high ranking sensitive personalities to perpetrate injustices against its own people. Bravo, Kenyan independent high court, go ahead.

  • 2 December 2011 11:37, by Gabriel KK

    Kibaki is trying to maintain Khartoum in order to steal a part of Eastern Equatoria state through their old agreement with Bashir but it is not possible now because Sudan is out of South Sudan affairs and Lokichoggio or Lodwar is our border with Kenya. Shame on Kibaki and Watangula.

  • 2 December 2011 12:25, by Gunkills

    Good you said it very well Sudantribune not South Sudantribune. One thing you need to understand this is an independent website with no any siding!

  • 2 December 2011 18:46, by mohammed ali

    Sudan Tribune the propoganda machine in action!Kenya disatched 3 senior executive swiftly with a letter from the president of Kenya; these are the personal envoy of the president,the minister of foreign affairs and the minister of defence. ST chooses to say this on one line only and the whole article is for their propoganda.What a professional journalism.Shame on you!

    • 2 December 2011 18:53, by mohammed ali

      Nobody on Earth can arrest President Basheer , he is our president and we know and sure that we will and can protect him.As for you , just die with your hatred ; it will and is burning you right now. Your "throughouly washed empty brain" unfortunately will come to understand when it is far too late!

      • 2 December 2011 19:28, by Daniel Buolmawei

        Well, Ali, he will never come to South Sudan once we signed the ICC. He knows this very well. We are people who are not to be fooled by political propagandas. Bashir will eventually be arrested whether you like it or not. Don’t joke with the world community friend. His time will surely arrive like his colleagues before him.

  • 2 December 2011 19:22, by Daniel Buolmawei

    I like legal quarelling. It is a real test whether Africans are ready to obey the law they set. You see the so-called Foregn Minister campaigning against the constitutional rule of Judge and appeared to make the government bigger and above the constitution of Kenya. We are watching you closely. Who in the world can violate his/her constitution because of fake relationship with another nation?

  • 2 December 2011 22:06, by Elijah B. Elkan

    To all Bashir supporters, please it’s time to give up on the loser. Bahsir is a world criminal who killer millions of people in the south,Darfur,east and north Sudan in the name of that hideous religion call Islam. Bashir is not a leader, but paranoided delusional idiot. His days are numbered.

  • 20 July 2013 18:07, by toneypan

    Why so many girls love replica handbags?Do not concern yourself relating to build of your Replica watches.

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