Bashir visit, an act of impunity?

By Jakarateng'
The promulgation of Kenya’s new constitution on Friday 27th August 2010 was a historic ceremony ushering in what a majority has dubbed the birth of a second Republic. Unfortunately, the history of the country suffered a major blow due to immediate international ridicule and mixed reactions on Kenya's unprecedented invitation and hosting of the Sudanese leader Hassan Omar al Bashir at the ceremony.

The International Criminal Court (ICC) has issued a warrant of arrest for President Bashir who is on the court's list for "genocide and crimes against humanity" in Darfur. The ICC therefore expects any country that the Sudanese leader visits to act swiftly, arrest and deliver him to the court or an international legal organ that can guarantee his deliverance to the confines of the ICC.

It is of great concern, directly tantalizing and expressly interesting that Kenya, on her most cherished and memorable moment in history chose to invite President Bashir to celebrate the promulgation of the new constitution. Kenya, a signatory to the Rome Statue which created the international court, becomes the second country to host and fail to arrest the Sudanese leader after the ICC issued arrest orders for the President.

The visit has led to several negative reactions from world leaders who are expecting Kenya to clarify why Bashir was invited and allowed to safely travel back to Sudan despithe the standing ICC arrest orders. President Obama has accused the Kenyan Government of shielding the Sudanese leader from criminal justice.

The ridicule is endless and many development partners have also signaled their disappointment and intention to hold the Government to account over the visit. The ICC has already slammed the Government in a protest note to the UN Security Council hoping to hold President Kibaki to account for playing host to one of its criminal targets.

Former UN Secretary General, Kofi Annan also expects Kenya to clarify the presence of Bashir at the ceremony. “Like many, I was surprised by the presence of President Al-Bashir of Sudan in Nairobi for the promulgation of Kenya’s new constitution,” Annan said in a statement.

Act of impunity

There are disagreements in the Government over el Bashir's invitation and attendance of the ceremonies. The Orange Democratic Movement (ODM) party has taken a great leap and distances itself from all knowledge of the invitation. The party leaders claim they were never consulted or involved in planning the visit and that ODM was 'surprised by the unexpected presence of Omar el Bashir'. The party says the visit was not 'only a stain and a blemish to the celebration but an act of impunity'. ODM is now seeking a proper explanation from among others, the Foreign Affairs Minister, Mr Moses Wetang'ula.

Prof Anyang Nyong'o, ODM's Secretary General said (at a Press conference in Nairobi), “We would like to assure Kenyans that ODM will do its best, as a partner in the coalition government, to obtain proper explanation from the ministry of Foreign Affairs,”.

Surprise visit?

On Tuesday, Cabinet Secretary Francis Muthaura could not provide the media with the complete guest list thereby holding a "secret" list of other "regional leaders" from the media. Muthaura is reported to have told journalists that the First Vice-President of Sudan, Hon. Salva Kiiir would represent the country at the celebrations. If it is true as reported that Cabinet Secretary, Muthaura had Hon. Kiir as the highest Sudanese leader on the official attendance guest list for Sudan, does it mean that Bashir sneaked in without an official invitation from the Government?

Speaking to the press, Kenya's Foreign Affairs Minister said "we invited him (Bashir), he honored us and we are happy about it, and he has attended the function and gone back to his country". Mr Wetang'ula further defended the invitation and cited the position taken by the African Union (AU) in July 2010 where it instructed its members including Kenya not to apprehend Bashir.

"The AU has taken a position, we have asked the UN National Assembly and the Security Council to defer those warrants, we are waiting to see what they will do and Kenya will not be the first to violate what the AU has decided", said Wetang'ula. He explained that Bashir "cannot be arrested in Kenya" since he was invited just like the other heads of state at the ceremony.

Any regrets?
“We have no regrets at all. Kenya chaired the Comprehensive Peace Agreement and we have to talk to both sides. Peace in Sudan is our interest. Somalia has been a big headache for Kenya and we do not want another (such) situation. He was our guest and we are happy that he honored the invitation,” Mr Wetang’ula said.

If Mr Wetang'ula is right about the invitation, then he and the entire Government of Kenya should prepare to face the laws that were promulgated on Friday.

A detailed examination of the new constitution reveals that the invitation of Bashir and his presence in the country right after the promulgation was a violation of the new constitution. Article 2 of the constitution states that general rules of international law forms part of the law of Kenya.

Article 21(4) of the Constitution says: "The State shall enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms". Being a signatory to the Rome Statute and acting according to her new laws, Kenya was bound to arrest the Sudanese leader. Article 2(6) states that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the new constitution. This section makes Kenya answerable and responsible for the violation of the same Statute to which she is a signatory.

Demonstrators arrested

Funny enough, the police engaged a section of the public in running battles and arrested two people for demonstrating against Bashir's visit. The arrests were made in a paramilitary manner that rekindles the bitter memories of the past where police brutality was nearly the order of the day during similar arrests.

The debate is on and can be tougher by time. Calls are pouring for the Government to clarify the issue and expressly apologize to Kenyans and the international community as soon as is reasonably practicable.