Inviting President Bashir to Kenya is an affront to international law

Developments following Kenya’s High Court order to arrest the Sudanese President if he steps on Kenyan territory are a classic example of the differences between advocates of the old and new schools of international law.

The new school of thought transforms the world society from a system of sovereign states to a world union in which the United Nations protects human rights, punishes international crimes, and enforces its law against states and individuals.

The emphatic references to sovereignty of nations, national interest, and the possible adverse effect on regional and international interests portrayed the two governments as belonging to the old school in international law.

The Kenya Chapter of the International Commission of Jurists (ICJ) must have filed the case against the Sudanese president on the basis of their belief in this new approach to international law, inadvertently sparking an unprecedented diplomatic row between Kenya and Sudan.

The ICJ was responding to an earlier request from the Registrar of the International Criminal Court (ICC) asking member states to arrest the Sudanese president when visiting countries signatory to the Rome Statute.

Thus, Kenya should have done it when Bashir attended the promulgation of the Constitution ceremony in August last year.

Al-Bashir is wanted by the ICC for crimes against humanity and genocide.

Appeasement

His over-reaction to the High Court order arises from failure to appreciate fully the impact of on-going political reforms in Kenya that emphasise respect of the principle of separation of powers among the three arms of government — the Executive, Judiciary, and Parliament.

Ideally, the Foreign ministry should have firmly informed Khartoum that court decisions in Kenya are independent of the Executive function and influence, and advise, thereafter, that the two friendly countries should explore alternative diplomatic engagements that would preclude al-Bashir’s presence in Kenya.

The reaction of the Kenya government to appease Khartoum by condemning the court order and, in the same breath, inviting the Sudanese president to attend the forthcoming IGAD Summit in Nairobi is, therefore, an unwarranted affront on the independence of the Judiciary.

A rejoinder by the Chief Justice during the diplomatic row that the independence of the Judiciary must be respected was a timely intervention.

In any case, it is Kenya’s domestic policies that are meant to define the nature and purpose of its foreign policy.

Besides, Kenya is currently co-operating fully with the ICC by allowing its nationals to undergo the ongoing court process at The Hague regarding the 2007 post-election violence.

Taking astride the recent High Court order would have been consistent with our established image and belief that certain offences are the concern of all states.

Insensitivity

Former Israeli Foreign Minister Abba Eban once defined international law as the law which the wicked do not obey, and which the righteous do not enforce.

Surely, Kenya should not be seen as disrespecting the law among states or to be a nation so neutral that it is unable to project its image abroad.

Whatever the reasons behind the issuance of a warrant of arrest by the ICC against the Sudanese president, Kenya has no reason to display the kind of panic it did following the High Court order.

What the High Court order attempted to stop is the wanton display of insensitivity by government towards international law as happened when the Sudanese president attended the promulgation of the Constitution last year.

Finally, the heightened activity at Foreign Affairs may be indicative of failure of the ministry to examine, more intensely, the effect of the ongoing reforms in Kenya and how that impacts on this country’s foreign policy.

In the past, Kenyan leaders had a free hand to flout the law and arm-twist government officials and institutions to please foreign powers.

The ministry of Foreign Affairs must now review its approach to external relations with a view to protecting and projecting our values as a people.

Mr Osoro works with the Centre for Policy Analysis. Email:osorojb@yahoo.co.nz