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| Posted to the web on October 17, 2010 |
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October 16, 2010 (WASHINGTON) – A Kenyan law group will soon seek court action to force the government to arrest the Sudanese president Omer Hassan Al-Bashir if he ends up attending the Intergovernmental Governmental Authority on Development (IGAD) summit on Sudan slated for late October.
Kenya’s Chief Justice Evans Gicheru takes the Oath of Allegience and due execution of office under new constitution during the promulgation of the new constitution at the Uhuru Park grounds in Nairobi August 27, 2010 (Reuters)
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Stella Ndirangu, Legal Officer for the Kenya chapter of the International Commission of Jurists (ICJ), told Sudan Tribune by phone from Nairobi that she is confident about the chances of the judge granting the group’s request and ordering the Kenyan government to apprehend the Sudanese leader.
Bashir is charged by the International Criminal Court (ICC) with genocide and war crimes allegedly committed in Sudan’s western Darfur region. The African Union (AU) persistently urged the United Nations Security Council (UNSC) to put the indictment on hold, warning that it could destabilize Africa’s biggest nation and endanger an upcoming referendum on southern independence.
He has already defied the warrant by paying a visit to Nairobi last August for the promulgation of the new constitution despite Kenya having a legal obligation to arrest him given the country’s ratification of the Rome Statute which is the founding treaty of the ICC.
Ndirangu stressed that under the International Crimes Act of 2008, which domesticated the Rome Statute, the government is obliged to take the Sudanese president into custody irrespective of his status as a head of state.
Section IV of the Act details the responsibility of the government in executing an arrest warrant received from the ICC.
Kenyan officials have said they are party to the AU resolutions which calls on states not to cooperate with Hague tribunal in arresting Bashir.
But the president of the Assembly of States Parties to the Rome Statute Christian Wenaweser told the Kenyan foreign minister Moses Wetangula during their meeting last month that the country’s obligation to cooperate with the ICC orders "could not legally be suspended by a decision of the African Union".
"Only the Security Council could suspend the Court’s investigations in accordance with article 16 of the Rome Statute," Wenaweser was quoted as saying.
The ICC judges had ordered the court’s registrar during Bashir’s visit to transmit Kenya’s non-compliance to the UNSC for action though nothing has ensued from the council.
Wetangula has said at the time that his country will not allow "anyone to make friends and enemies".
However, the ICJ official predicted that the Kenyan top diplomat would be less outspoken and defiant on the issue as he was in the past given mounting calls by the parliament on him to resign in light of a damning report released recently that alleges irregularities in the purchase of a piece of land for the Kenyan Embassy in Tokyo.
She noted that it is Wetangula who would be the one to offer guarantees to Bashir that he won’t face arrest on Kenyan soil.
Ndirangu said that ICJ’s lawyers are sorting out several technical issues before proceeding to the Judges with their motion in the coming week.
Bashir’s visit in August caused a split in the Kenyan coalition government after several senior officials including the prime minister Raila Odinga voiced strong opposition to extending the invitation to the Sudanese president. Furthermore, the country came under heavy criticism internationally for what was described as a breach of its legal obligations.
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