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

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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The Birth of a New Country South Sudan

The Birth of A New Country Southern Sudan

The all but certain emergence of a new country to follow the referendum in Southern Sudan, which begins today, has had me thinking: what does it take to raise a country from infancy onwards to maturity? This in turn triggered another question in my mind, why are countries formed; can we all not agree to live and be governed by one government?

Or put another way, can we not have a One World United, let’s call it the United World of the World (UWWW)? So before looking into what does a new country like the one about to be formed in Southern Sudan needs from infancy to maturity, I decided to look into these other questions that came in mind; not all of them. But the two I have mentioned above, namely, why are countries formed and why can we not live under one roof, in one country, that is.

The first thing I wanted to find out is how many countries are in the world as I write only to find out that, while it would appear to be a rather simple matter to determine how many countries there are in the world, it is in fact quite complex. This is due not only to the ever-shifting political landscape, but also because the term “countries” is somewhat fluid and open to interpretation.

A narrow definition of what a country is might look at a well-established group – such as the United Nations – and take its list of recognized members. Going by the United Nations, there are 193 recognized states, with 192 being members of the United Nations, and the Vatican City, which is a permanent observer with all rights of a member, save voting rights.

One could also take an established definition for what a state is, and find all states which match that definition. The most widely-accepted definition is given by the Montevideo Convention, from 1933. By these guidelines, a state must have a government, be in a position to interact with other states diplomatically, have a defined territory, and possess a permanent population.

A rough count of states that meet this criteria places the number of countries in the world at 201. That includes the 193 states recognized by the United Nations, as well as eight additional states: the Western Sahara, Taiwan, Northern Cyprus, Somaliland, South Ossetia, Transnistria, Abkhazia, and Nagorno-Karabakh. These states meet the criteria set out by the Montevideo Convention, but are all in a struggle with another, larger state, for independence, and so far have not been formally recognized by the United Nations.

An even broader definition could include some states which have been recognized by a number of countries, but have either failed to establish a steady government, or have failed to receive recognition by enough fellow states to truly meet the criteria of the Montevideo Convention. By adding in states such as the Cook Islands, Palestine, or the Chechen Republic, one could get to a much greater number of countries in the world – somewhere in the range of 210-230.

Going even broader, one can include countries that are part of a larger country, sometimes referred to as constituent countries. One obvious example of this would be the countries of England, Scotland, Wales, and Northern Ireland – all making up the single country of the United Kingdom. In most counts of the countries in the world, these four countries are counted as one, but they could easily be counted as four instead. By including these types of countries there could be many hundreds of more countries in the world.

Similarly, territories – such as the territory of Guam, a possession of the United States – are usually not counted in an official count, but are states by many criteria. These are referred to by the United Nations as Non-Self Governing Territories, and include an additional 16 territories.
So, going back to my question how many countries are there in the world, the short answer is 193 by the count of the United Nations, 201 by a narrow interpretation of the Montevideo Conventions and somewhere over 220 by a looser interpretation of the Conventions.

Having found out the number of countries in the world, I next wanted to know why do we even have these many countries; can we not all live under one country, one global village so to speak? Before I could even engage myself to answer the question, I spontenously thought about the familiar story about the building of the Tower of Babel found in Genesis 11:1-9 about the tower of Babel; could it offer an answer to this question?

The Bible tells us that a united people with one language living after the Great Flood, migrated to the land of Shinar, where they resolved to build a city with a tower “with its top in the heavens.” God came down to see what they were up-to and said: “Behold, the people is one, and they have all one language; and this they begin to do: and now nothing will be restrained from them, which they have imagined to do.” And so God scattered them upon the face of the Earth, and confused their languages, and they left off building the city, which was called Babel.

Did God intend to create many small nations out of one? I think so; therefore there is no reason to go against His wish and try to go back to the day before the Great Flood in forming one world, one nation so God provided the justification upon which these countries may be created and that is, diversity united by a common goal and purpose to celebrate the differences among as even as we are united in Him. Now, this is but one believe why I think countries are necessary but it is just that; one’s belief. In reality, a quest for political freedom from oppression drives formation of many a country.

That being settled, I come to the question that started all this for me; what does it take to raise from infancy to maturity, a new country like the soon likely to emerge in Southern Sudan? To be sure, a new country faces daunting challenges, not the least of which is stability, especially where those from whence they have been given birth, have unfinished agenda. Setting aside stability challenges related to overall security, there are several other challenges such a country will face and even though some of these challenges are relatively easy to address, such as picking the country’s name (akin to naming a child, except it is not a good idea to pick a name that already exists), or picking a national anthem, ditto, other challenges are complex and require a great deal of money and expertise to successfully tackle. The major ones that come to mind are the following:

• Establishing a political system and corresponding voting rights

• Establishing an economic system

• Establishing a legal system

• Establishing monetary and tax systems

• Establishing an agricultural system not only to feed the nation but also to start off the economy by providing resources for commodities trade.

• Establishing a basic education system, especially vocational education so that the country can build up its working force.

• Establishing a healthcare system to keep everyone healthy to fight the new government

• Establishing law enforcement, both a military to protect from outside forces and a policing force to enforce domestic peace.

• Along with all the setting up, it would be very useful to start trading with other nations as soon as possible.

• Securing and/or expanding relations with influential large nations that would give the new state political, financial, and possible military backing.

• Last but definitely not least – build a new and expanded infrastructure

• Establishing a monetary system

Tackling these challenges is not going to be easy, but, as is in the case of the birth of a new baby where the parents would have taken all the time necessary to study parenting and what comes with it, one can assume Southern Sudan President Salva Kiir has been doing just that relative to the birth of the new country and is ready to nurse and raise the soon to be born country. As is also the case in new births, one hopes family and friends are ready to offer a hand as necessary except changing diapers, which only the brave of the bravest family and friends would dare.

 
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Posted by on March 16, 2011 in Uncategorized

 

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