On Monday, following an application lodged by the International Commission for Jurists (ICJ) Kenya Chapter, Justice Nicholas Ombijah of Kenya’s Supreme Court ordered the Attorney General and the Minister for Internal Security on Monday, to arrest Sudan’s President Omar al-Bashir should he ever set foot in Kenya.

Omar al-Bashir is wanted by the International Criminal Court (ICC) on charges of ‘crimes against humanity’ (murder, torture, forcible transfer and rape), ‘war crimes’ (attacking civilians and pillaging) and ‘genocide’.

Judge Ombijah ruled that Kenya was obliged to arrest al-Bashir since it was a signatory of the ICC Rome Statute which stipulates that any signatory country should abide by arrest warrants issued by the ICC. The ICC Rome Statute was established in 2002 but like many African countries, Kenya used to refuse to implement ICC’s 2009 arrest warrant against al-Bashir.

Forum readers will recall that President Omar al-Bashir has ‘set foot in’ Kenya before. In August 2010 Bashir was one of the governments’ guests during the promulgation of the new constitution. Kenya failed to arrest the Sudanese leader then, arguing that the country supported the African union position requiring member states to protect president Al-Bashir and not hand him over to the ICC.

ANGER IN KHARTOUM, CONFUSION IN KENYA

The ruling by Judge Ombijah has, perhaps understandably, not to have been received well by Sudan, and the Kenyan ambassador in Khartoum has been ordered to leave the country in 72 hours.

“The Kenyan ambassador has been notified to leave in 72 hours while the Sudanese ambassador in Nairobi has been asked to return to Khartoum,” said Al-Obaid Ahmed Mirawih, spokesman for the Sudanese Ministry of Foreign Affairs.

Judge Ombijah’s decision has also led to a degree of dispute at the highest levels of the Kenyan government.

Kenya’s Foreign Affairs Minister, Moses Wetang’ula (as reported by the Daily Nation) said it would be difficult to obey the ruling, describing it as a “judgemental error”, which failed to consider the need to balance delicate international relations. Wetang’ula says his ministry will even appeal against warrant for Al-Bahir’s arrest.

Justice Minister Mutula Kilonzo, however, does not seem to share the same sentiments with Wetangula, saying that the government has no choice but to obey the ruling and arrest Bashir.

The Kenya Forum agrees with the view taken by Mutula Kilonzo but would add that there is an even more interesting angle to the ruling in the High Court.

THE SEPARATION OF POWERS

The judgement is seen in Khartoum as a ruling by the Kenyan government but it’s not: it is a ruling handed down from the High Court of Kenya. The Forum would argue that this shows that there is now clearly a ‘separation of powers’ between Kenya’s judiciary and the government, and that this is a positive indication signifying the independence of the judiciary in Kenya’s new constitutional framework.

The question as to whether Kenya will indeed execute the order and arrest AL-BASHIR should he return to our country in the not too distant future, is another matter altogether and the aftermath of Judge Ombija’s ruling matter in respect of Kenyan-Sudan relations is yet to be seen.