Arrest Bashir if he comes to Kenya, Appeal Court orders State

President Uhuru Kenyatta with President Omar Hassan Al Bashir after his President inauguration ceremony in Khartoum, Sudan in 2015 [File, Standard]

Security officers should arrest Sudan President Omar Al Bashir if he dares step into the country, Court of Appeal has ruled.

In the judgement issued on Friday, Court of Appeal judges Daniel Musinga, William Ouko and Agnes Murgor said Kenya acted in utter impunity for failing to arrest the Sudan leader when he attended the 2010 Constitution promulgation fete.

Bashir is wanted by the International Criminal Court for a host of crimes against humanity. But the predicament is who will arresthim since the ICC does not have its own police and cannot try a suspect unless he is at its seat.

Grave crimes

“Kenya was and is bound by its international obligation to cooperate with the ICC to execute the original warrant issued by the ICC for the arrest of Al Bashir when he visited Kenya on August 27, 2010 and in future should he return to Kenya,” the judges ruled.

Bashir’s first warrant of arrest was issued on March 4, 2009 and the second on July 12, 2010.  He faces allegations of directing attacks against civilians and pillaging and three other counts of genocide- killing.

The crimes were allegedly committed between 2003 and 2008 in Darfur and left nearly 300,000 people killed and more than two million displaced.

The Sudan leader has however been roaming free ever since although he appears to have restricted his movements to choice countries.

Lawyers from the  State and a lobby group which wanted Al Bashir arrested,  the Kenya section of International Commission of Jurists,  argued on whether Kenya  should  arrest Bashir in  the  event  that he sets foot in the country.

The State in its bid to explain why it could not and will not arrest its friendly neighbor’s leader spoke of a catch 22 situation - that it brokered for a truce between South Sudan and Sudan  and the African Union  Charter  which dictates  that no  member State can arrest a sitting President. 

The State said its hands were tied by President’s immunity clause.

The Government argued that it is only Interior Cabinet Secretary or the Attorney General who ought to approach the court, in writing, for warrants of arrest immediately they received a request for cooperation. It also came out clearly that the matter was more political than legal.

 But the three Justices disagreed by holding that individuals who commit international crimes are accountable to the world and ought to pay for their crimes.

“As a matter of general customary international law it is no longer in doubt that a Head of State will personally be liable if there is sufficient evidence that he authorised or perpetrated those internationally recognised serious crimes,” the judges ruled.

Retired High Court judge Nicholas Ombija had issued a provisional warrant of arrest in anticipation that Al Bashir would attend Inter-Governmental Authority on Development Summit in Nairobi which was to be held in November 2010.

In a last minute decision, the Summit was shifted to Addis Ababa but the judge issued the orders anyway.

Grave crimes

It took one year for the High Court to issue the land mark judgment.

Court of Appeal settled that the orders were stale as the wanted man did not show up nor has he come again.

They ruled: “That is a period of nearly one year later. At this point the learned Judge ought to have acknowledged that the urgency which was the foundation of the application had dissipated and the warrant was stale.”

Technically, Sudan is not a State member of the Rome Statute. Under President Al-Bashir, Sudan signed the Rome Statute on September 8, 2000 but has not ratified it to this date. It wrote on August 27, 2008 to the ICC saying it had no legal obligation to hand in its President for trial.

Kenya rode on this to argue that courts must respect that Sudan is a friendly neighbour which hosts thousands of her citizens, and in the event Al Bashir is arrested, they may be victimised.