Sudanese President and genocide suspect Gen Omar al Bashir has scored a major diplomatic coup over Kenya. His threats of retaliation against the High Court’s arrest order that made Kenya’s executive arm squirm and whimper may go down as Kenya’s biggest diplomatic fiasco. Gen Bashir has been walking around with an arrest warrant on his head for the past five years. He has defied international law and tried to rope the continent’s fading club of dictators to his rebellion against the international criminal justice system. The hapless African Union has been browbeaten into accusing the ICC of being a racist, partisan and quasi-judicial process targeting the continent for humiliation. But those arguments fall flat for lack of alternatives and because their proponents are not credible. Its most vocal advocates have such appalling human rights records at home that nobody will listen to them. To avoid the prospect of the sad ending that his peers in the north have met, Gen Bashir has promptly promised not to seek re-election when his term expires in three years. But with every passing day and peers being routed by popular revolutions, his continued stewardship of the Sudan is even more shaky and untenable.
Thanks to regional geopolitical considerations, the world continues to soft-pedal on Gen Bashir. But soon as the fragile Comprehensive Peace Agreement with the newly independent South Sudan is sewn up, he will have little room to rant and terrify pacifist neighbours like Kenya. Mr Bashir needs to ask Mr Laurent Gbagbo, now at The Hague, what happened to him.
That Kenya’s ministers of Defence and Foreign Affairs could fly to Khartoum to appease the Sudanese President was a bizarre display of our impotence as a sovereign state. Who between Kenya and Sudan stood to lose the most from a fall-out? Is Kenya the underdog or why is the Kenya government so beholden to Bashir when in fact the world is on Kenya’s side?
Bashir could as well go ahead and bar all aircraft from Kenya from landing in Khartoum, expel the Kenyan members of the UN peacekeeping mission in Sudan and all Kenyans studying or working in Sudan. He can withdraw all Sudanese investments and sever all trade ties. Costly as these actions may be, Kenya’s rush to pacify Bashir was astonishing. It had the option of sitting back to let Bashir further isolate himself and provide the impetus required to further push him to account for the dead and suffering thousands of Sudanese. Instead Kenya squandered an opportunity to provide exemplary African leadership in the quest for global justice by recapitulating and thinking small.
The government has no business appealing the decision of the court on behalf of Bashir. Kenyan taxpayers money should not be expended to advance injustice or to frustrate the rule of law. President Kibaki and all his ministers are bound by the national values and principles of governance enunciated in Section 10 of our constitution, to wit, all their actions must advance the rule of law and democracy. Kenya need not fret and cower from Bashir’s tantrums because it is not the first time such a diplomatic row has occurred between countries.
In February 2009, Uganda’s Red Pepper published a series of articles claiming that President Muammar Gaddafi had exhibited an unusual fondness of Best Kamigisha, then 42-year-old widowed queen of Toro, one of Uganda’s five traditional kingdoms. The paper alleged that the two were romantically involved and the pretty queen had been holidaying in Tripoli, and accompanying Gaddafi on foreign trips as he paid reciprocal visit to Uganda.
The tabloid persisted in its love allegations but the government initially left it to the Libyan authorities to act and the ambassador in Kampala sued the rabid tabloid for defamation, demanding $1 billion (Sh89.8 billion) in damages. The government however jumped into the fray after Gaddafi complained to Museveni. The prosecutor moved to charge the editors with criminal defamation of a foreign dignitary with intent to disturb peace and friendship between Uganda and Libya. That intervention was unnecessary in a purely civil matter but Kenya’s actions show it would be inclined to borrow a leaf from Kampala.
In another similar incident, a French court indicted nine (military) aides of President Paul Kagame for the 1994 Genocide in November 2006. Kagame characteristically leaped at the French government, cutting off diplomatic ties and recalling his envoy but a deal was soon struck that restored full diplomatic ties with President Sarkozy visiting Rwanda and Kagame reciprocating the gesture last year.
That did not deter German Interpol from arresting one of the indicted aides, Rose Kabuye, then Rwanda’s protocol chief against whom warrants had been issued for actions that allegedly triggered the genocide. German police handed her to the French court for trial but she was released after France dropped the charges and undertook to initiate fresh investigations.
These incidents only demonstrate that in a democracy, institutions such as courts and the media must be left to perform their function. They must not be interpreted to represent the executive, nor should they mirror the thinking of the political leadership of the day. But that logic is alien to tyrants who believe courts are an extension of the political state and must convey the will of the government of the day. That’s is the case in Sudan where judges, like Kenya of yore, must always second-guess the executive. In that context, one can see the foundation of Bashir’s baseless fury.
Baseless because it betrays his lack of understanding of more functional democratic societies like ours. The Kenya constitution clearly stipulates that “the general rules of international law shall form part of the law of Kenya” and further, that “any treaty or convention ratified by Kenya (such as the Rome Statute) shall form part of the law of Kenya law (2)”. The same Constitution also mandates every citizen to defend it (sect 3) and grants any Kenyan, singly or organized as a group, company, civil society or community based organization, the right to institute measures to enforce the constitution in the public interest (Chapter 17).
Seeing how the constitution and international law which we have domesticated was being violated, law-abiding citizens organized as the International Commission of Jurists took the initiative of ensuring justice is done for the citizens of Sudan by seeking the arrest of one Omar al Bashir, who happens to be the President of the great African republic of Sudan. High Court Judge Nicholas Ombija obliged. As long as the Court’s order, which according to Wetangula is incapable of obedience, stands, any good intentioned Kenyan can carry out a citizen arrest of Mr Bashir.
The government’s paranoid response also raises fundamental questions about our foreign policy. Ideally, diplomatic relations are forged between countries represented by leaders who come and go as Bashir surely will. It is assumed that such leaders are popular (elected) which is not always the case. And as the Libyan example has recently shown, it is the people who are sovereign: the fatal rout of Gaddafi has not deterred Kenya and other African countries from relating with the Libyan people.
Bashir’s tyrannical posture only lends credence to the obvious need to democratize the Sudan. Kenya’s rightful policy should be support to the people of Sudan, not necessarily its contested leadership, which Mr Wetangula and the Kenya government have elected to suck up to. It is not the business of the Kenya government to protect suspects wanted for genocide and crimes against humanity.
Government officials who took an oath to protect the constitution cannot abdicate that responsibility without inviting sanctions from Kenyans. If the Attorney General and the Minister for Internal Security cannot execute the court order when Gen Bashir ever steps on Kenyan soil, they will be liable for contempt of court proceedings and other measures to remove them from office.
It is unfortunate that the government should be speaking out of turn with our new Supreme Law and the reality of the new Kenya. It should tone down its panicky diplomatic rhetoric and refer the matter to the Attorney General to pen a polite notes verbates to el Bashir regretting that there is nothing that can be done about the court order and advice him to turn up at The Hague to clear his name or avoid visiting us. The new Kenyan Constitution is no respecter of persons, even foreign presidents. And that should be our rightful foreign policy — to promote human rights and rule of law globally.
Bashir’s warrant of arrest is a standing testimony of the international community’s determination to ensure the rule of law and justice for all. Bashir seized power in a military coup and progressively morphed into a civilian President but he is still a runaway despot. Claims of brutal suppression of the fundamental freedoms of Darfurians and other western Sudanese require due legal process. That is not to say he should be convicted without trial or hanged unfairly. But he must accede to one simple request — appear before the ICC and confront those charges. His streak of defiance and hostility is the stuff of a man scared of justice. Kenya should not acquiesce to his threats and intimidation or bend its laws to shield him from justice.
Until the warrants are lifted, Kenya is obligated to arrest and hand him over to the ICC. It cannot hide behind the resolution of the African Union not to cooperate with the ICC because that does not supercede our constitution. Nor should considerations such as the delicate Sudan peace process and our own appointment with the ICC interfere with the rule of law. The government’s cowardly actions are demeaning of our statehood and injurious to our pride as an aspiring democracy and champion of rule of law on the continent. I am very ashamed of my government.
Makali is a journalist media consultant.