Kenya Must Gallantly Deal With the Bashir Issue And Without Further Embarrassment

30 Nov

The ongoing spat between Kenya and Sudan or more specifically, between Omar Al Bashir and Kenya is both simple on one level but more complicated on another.

Be as it may be, however, there is one thing that is abundantly clear and that is, both Al Bashir and Kibaki have thus far bungled handling of this issue one wonders whether either leader is being advised at all by anyone who knows anything about international relations and diplomacy.

If your own court makes a ruling contrary to your stated position on an international matter or issue, you do not as president trash that court’s decision publicly and further embarrass yourself and the country by saying you will appeal the decision because you don’t like it.

Rather, you quietly communicate to the party you believe would be aggrieved with the ruling consistent with your stated position or your country’s national interests.

On the other hand, if a court of a foreign state renders a ruling adverse to your interests or your country’s interests (the two are not one and the same when it comes to presidents or national leaders as there are times a national leader or president’s personal or political interests may be a divergence with the national interest), you do not react by expelling that country’s envoy and recalling yours from that country.

Such reaction under those circumstances is unnecessary and goes to show yours is more show than nothing of substance.

In this case, it is the height of arrogance and self-elevation to untouchable status for Bashir to react the way he has, including expelling our ambassador to Sudan and notice I could have said but did not say “his country” because Bashir is holding his country hostage while trying to hold on to power he cannot possibly say has been given to him by his near hopeless people he is ruling by force.

Both Kibaki and Al Bashir have therefor bungled how they have handled this issue regarding the ICC outstanding warrant against Bashir and the Kenya high court judge’s ruling the warrant must be enforced were Bashir to step inside Kenya.

The ongoing spat between Kenya and Sudan or more specifically, between Omar Al Bashir and Kenya is an embarrassment for Kenya.

How poorly and even embarrassingly these two leaders have handled this Bashir issue so far is the easy and simpler part to see clearly and understand.

Beyond that, however, things do get complicated.

The International Criminal Court (ICC) issued an arrest warrant against Al Bashir on March 4, 2009 upon the court’s finding that there were “reasonable grounds to believe that Omar al-Bashir bears criminal responsibility under the Rome Statute’ for five counts of crimes against humanity including murder, extermination, torture, and rape and two counts of war crimes.”

This marked the first time a warrant was issued against a sitting head of state making it a complicated issue by that fact alone made worse only by the fact Bashir is president of an African nation, which did not bore well with many of the African despots and masters of impunity and corruption presiding over economic genocides across the continent suitable for prosecution under the ICC if we can figure how.

Al Bashir has been on the lam since then.

On the lam, that is, except for Kenya, China and other African countries he is given red-carpet welcome if and when he chooses to visit the warrant be damned and never mind he stands accused of having committed crimes against humanity and is responsible for the genocide in Darfur.

The reasons given by Kenya for ignoring the ICC warrant against Bashir are (1) Bashir is a key to several security initiatives in the Horn of Africa, including the on-going operation by Kenya Defence Forces (KDF) in Somalia and (2) that the AU has directed member countries including Kenya to ignore the warrant.

Lesser persuasive reasons given for ignoring the warrant against Bashir include the fact that there are outstanding unresolved issues in the Comprehensive Peace Agreement (CPA) on oil-rich Abyei relative to South Sudan and the even less persuasive citation of the Vienna Convention on the immunity of Heads of States and Government, which does not technically apply in the case against Bashir.

Overall, however, the Bashir issue does present some serious and complicated questions that touch on a number of areas, not the least of which are relations within the Horn of Africa, Africa and between these two and the West each of which must be equally balanced to come up with a viable resolution of it.

Meanwhile, a judge of the Kenya high court has ruled that the warrant against Bashir must be enforced were Bashir to step-foot in Kenya.

In my view, the Kenya courts should stay away from the Bashir issue for several reasons:

First, the ICC having issued the warrant against Bashir, this is no longer a judicial matter but one for the executive to enforce.

If the executive chooses not to enforce the warrant, then there can be no other recourse other than letting Kenya become a pariah nation with concomitant consequences for its leader or one with a constitutional crisis even before the ink has dried on the new constitution.

Neither option is that terrific but one would have to prefer a pariah nation than one engulfed in a constitutional show down that can easily torpedo all these achievements we have attained thus far.

Second, the court should decline to exercise jurisdiction under the “unjusticiability” or “political question” doctrine both of which hold that there are certain questions and issues better left for the politicians to deal with than the courts.

The Al Bashir issue is precisely one such issue because it does not render itself to resolution by the courts for the simple reason the court’s position could be at odds with the state’s overall political interests more suitable for the politicians to determine at their own peril than the robed ones who are supposed to be apolitical.

Alternatively, the courts could simply decline to exercise jurisdiction on grounds there is no ripe issue to litigate.

Al Bashir is not in the country for anyone to determine whether or not he could be arrested.

If and when he lands and is given another red-carpet welcome instead of being handcuffed, someone could then file an emergency application for a writ of mandamus to order the executive to arrest him.

By the time one goes through all the procedural hurdles of filing such an application and having a hearing, Bashir would have been long gone, meaning, the issue will never be ripe.

Third, if any court has to do anything about further about the Bashir issue, it should not be the Kenyan court but the ICC itself.

Under the Rome Statute, ICC has the option to seek enforcement of the warrant through the UN.

Let the court pursue that option and have the chips fall where they may for I do not see how any individual can defy the UN if any recent examples are anything to go by and not even the AU would dare do so.

These are more than sufficient reasons for the Kenyan courts to stay out of this issue and by doing so, it does not mean the courts will be abdicating on their respective responsibilities or ceding power under the new constitution but they will be acting conformity with it and fully consistent with the doctrine of separation of powers which may otherwise be undermined by the executive simply ignoring the court’s orders as it would likely be the case here and thus setting us on an unavoidable and unnecessary constitutional crisis.

Besides, Kenya is on the spotlight at ICC therefore everything we do must reflect the interest of Kenyans not any individual or individuals no matter how cozy they are with the president.

By acting as he has, the president is signaling he is has little regard for the ICC and that cannot be good for our country.

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Posted by on November 30, 2011 in Politics


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