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WHY COURT ISSUED A WARRANT OF ARREST AGAINST AL BASHIR

By Cornelius Wekesa Lupao – Advocate.

International Commission of Jurists-Kenya v Attorney General & 2 others
High Court, at Nairobi
N.R.O. Ombija J
November 28, 2011.

‘‘Applying International Law principles to the facts of this case, the High Court in Kenya clearly has jurisdiction not only to issue warrant of arrest against any person, irrespective of his status, if he has committed a crime under the Rome Statute, under the principle of universal jurisdiction, but also to enforce the warrants should the Registrar of the International Criminal Court issue one……In respect of this particular case, two warrants of arrest were issued against President Omar Ahmad Hassan Al Bashir [Omar Al Bashir], the sitting President of the sovereign Republic of Sudan on 4th March 2009 with five counts of crime against humanity and two of war crimes on 12th July, 2010 with three counts of genocide for allegedly orchestrating atrocities in the Western Province of Dafur in Sudan. It is in evidence, that subsequent to the issuance, the Registrar of the International Criminal Court [ICC] sent a supplementary request to ask the State parties to the Rome Statute to effect the arrest and surrender of President Omar Ahmad Hassan Al Bashir [Omar Al Bashir] should he come to the respective territory. It is common ground that Kenya is a State party to the Rome Statute………State parties are under a duty to execute or extradite the perpetrators of International Crimes to the ICC for prosecution. ’’

A Warrant of arrest was issued against President Al Bashir, the President of Sudan, due to an obligation that Kenya has to arrest him should he set foot in its territory, the court has held. This followed an application by the International Commission of Jurists (ICJ)-Kenya which sought orders to the effect that a provisional warrant of arrest against President Bashir is issued and a subsequent order against the Minister of State for Provincial Administration to effect the said warrant of arrest.

The application by ICJ was predicated upon the affidavit of, George Kegoro, ICJ’s Executive Director , and was based on grounds that the Constitution of Kenya at Article 2 (5) applies all treaties and conventions that have been ratified by Kenya to be part of the Laws of Kenya; that Kenya ratified the Rome Statute on the 15th March 2005 and followed up on that act by domesticating the Statute vide the International Crimes Act of 2008; that the Constitution of Kenya, 2010 at Article 3 puts an obligation on every person to respect, uphold and defend the Constitution; that there were two outstanding warrants of arrest against President Al Bashir issued by the International Criminal Court [ICC] on 4th March, 2009 and 12th July 2010 respectively; that there were also two requests for co-operation in the arrest and surrender of President Al Bashir issued by the International Criminal Court [ICC] on 6th March, 2009 and 21st July, 2010 to States that are parties to the Rome Statute; that President Al Bashir came to Kenya, on the 27th August, 2010, but despite the existence of the said warrants of arrest, the respondents in utter disregard of their obligations, under international law and the Laws of Kenya, failed to enforce the said warrants of arrest; that the applicant was apprehensive that President Al Bashir would again be coming into Kenya to attend a meeting convened by Kenya through the Intergovernmental Authority on Development (IGAD);that previously when President Al Bashir came to Kenya on the 27th August 2010, the respondents failed and refused to effect arrest on him despite the existence of the said warrants of arrest against him which fact was within their knowledge; that the applicant was apprehensive that should President Al Bashir come to Kenya, the respondents in total disregard of the law would once again fail to effect an arrest against him as they previously did and that it was in this premise, that the applicant sought the application.

On behalf of the applicant, the court was urged that the objectives of the applicant were inter-alia, the development, strengthening and protection of the rule of law; and in particular to keep under review all aspects of the rule of law and human rights within the Republic of Kenya and take such action as would be of assistance in promoting or ensuring the enjoyment of these rights.
It was stated further that the applicant was aware of the existence of the warrants of arrest against President Al Bashir [Omar Al Bashir, the President of the Sovereign Republic of Sudan, the said warrants having been issued by the Pre-Trial Chamber of the International Criminal Court [ICC] respectively on 4th March, 2009 with five counts of crime against humanity and two of war crimes and on 12th July, 2010 with three counts of genocide for allegedly orchestrating atrocities in the Western Province of Dafur in Sudan. This was pursuant to Article 91 as read together with Article 92 of the Rome Statute.

The applicant concluded its case by stating that despite the Government of Kenya being averse and/or aware of its commitments and obligations under international law and municipal law, President Al Bashir was invited and hosted by the Government of Kenya on 27th August, 2010 during the promulgation of the country’s new Constitution and that the presence of the said President in the Kenyan territory was in violation of Kenya’s obligations under the Rome Statute, the International Crimes Act, 2008 and the new Constitution of Kenya, 2010. It went on that the failure, neglect or refusal to arrest the said President violated the basic tenets of International law and that the hosting of the said President in Kenya in violation of Kenya’s obligations under the Rome Statute [ICC] and the International Crimes Act, 2008, and the Constitution of Kenya, 2010 raised serious concern over Kenya’s commitment to combating impunity for the most serious crimes against humanity.

On the other hand, the 1st and 2nd respondents urged that the request for a provisional warrant can only be made by the ICC. They urged that it was the ICC to demonstrate the reasons and the urgency. In this regard they placed reliance on Article 92 of the Rome Statute. They went ahead to state that Section 32 and 33 of the International Crimes Act, 2008 derive directly from Article 92 of the Rome Statute. Hence, according to them, section 32 and 33 of the International Crimes Act, 2008, should be read together with Article 92 of the Rome Statute for their full tenor and effect. Their view was that a reading of the aforesaid Sections and the said Article leaves no doubt that the request can only be made by the ICC in urgent cases. In the premises, the applicant (ICJ-Kenya Chapter) therefore lacked locus-standi as it had not stated its (ICJ-Kenya Chapter)’s, interest in the case. More so they argued that ordinarily, in matters of mutual legal assistance and extradition, foreign requests are channeled to the Hon. the Attorney General and that if the Attorney General is satisfied as to the authenticity of the request, he would then move the High Court for issuance of a warrant and conduct the proceedings on behalf of the requesting party.

They observed that this process is not done by an individual or any authority. Their view was that the applicant envisaged under Section 29 of the International Crimes Act, 2008 is the Minister, in charge of Internal Security, of the Sovereign Republic of Kenya. Thus, according to them, the applicant under both sections should be the State as opposed to the applicant herein or any other legal person. They emphasized that an application for a provisional warrant of arrest under Section 32 of International Crimes Act, 2008 can only be made upon receipt of a request from the ICC courtesy of Article 92 of the Rome Statute and that since, there was no evidence that such a request for a provisional warrant had been made to the Kenya Government by the ICC, the High Court lacked jurisdiction to hear, determine or give orders sought in the application. Finally the 1st and 2nd respondents concluded that the application was moot, moribund and fruitless since the IGAD Summit meeting which could provide an opportunity for President Omar Al Bashir was held in Addis Ababa in November 2010. Hence, as far as they were concerned, the argument that the said President might come to Kenya was speculative and could not be a basis upon which the court could issue a warrant even if the right procedure had been followed.

On behalf of the 3rd respondent, it was urged that the Vienna Convection on Diplomatic Relations Treaty was in conflict with the International Crimes Act, 2008.According to it, African Union’s decision adopted in July, 2009 at a Summit in Sirte Libya, under the auspices of the Assembly of heads of States, the AU’s highest decision making organ, directed all AU member States to withhold co-operation with the ICC in respect of the arrest and surrender of President Omar Hassan Ahmad Al Bashir.

It stressed that the African Union had repeatedly called for the United Nations Security Council to invoke Article 16 of the Rome Statute to suspend the warrant of arrest against President Omar Al Bashir and that Kenya being a member of the African Union, decisions and resolutions of the AU are binding on Kenya and its people. To the 3rd respondent, Kenya being a neighbor to Sudan, declaration of the warrant of arrest against Al Bashir would be an act of aggression and its execution of would jeopardize or risk the lives and property of an estimated 500,000 Kenyans in the Sudan and lead to a deterioration of the relations between the two States. It concluded that Kenya being a guarantor to the comprehensive peace agreement that ended the civil war in Sudan should not take action that would precipitate instability in Sudan.

Upon consideration of issues at hand, the Court began by acknowledging the fact that Article 2(5) of the Constitution of Kenya, 2010 provides that the general rules of international law, the Rome Statute being such, form part of the law of Kenya hence the Constitution incorporates it in the Courts of Kenya. This, the Court stated that it is fortified by the enactment of the International Crimes Act, 2008 [Act No. 16 of 2008. To this end, the court concluded that Kenya’s constitution incorporates the role of the International Institutions such as the ICC hence the role of the International Criminal Court [ICC] operates within the frame-work of the Rome-Statute in the framework of the Kenyan Legal System.

Further, the court observed that in the context of Kenya, the High Court exercises any jurisdiction, original or appellate, conferred on it by legislation. In this regard the Constitution of Kenya, 2010 and the International Crimes Act 2008, it went on, confers jurisdiction on the High Court to enforce the Rome Statute. The Court in addition observed that in the realm of International Law, under the principle of universality, any State is empowered to bring to trial persons accused of international crimes regardless of the place of the commission of the crime, or the nationality of the offender.

Similarly, the court observed that the view that the duty to prosecute international crimes has developed into jus-cogens and customary international law, thus delegating States to prosecute perpetrators wherever they may be found. The State parties to the ICC according to the court are under a duty to prosecute or extradite the perpetrators to the ICC for prosecution.

The court, upon applying various International Law principles to the facts of this case, stated that the High Court in Kenya clearly has jurisdiction not only to issue a warrant of arrest against any person, irrespective of his status, if he has committed a crime under the Rome Statute, under the principle of universal jurisdiction, but also to enforce the warrants should the Registrar of the International Criminal Court issue one. It went on that in respect of this particular case, two warrants of arrest were issued against President Omar Ahmad Hassan Al Bashir [Omar Al Bashir], the sitting President of the sovereign Republic of Sudan on 4th March 2009 with five counts of crime against humanity and two of war crimes on 12th July, 2010 with three counts of genocide for allegedly orchestrating atrocities in the Western Province of Dafur in Sudan. It stated that it was in evidence, that subsequent to the issuance, the Registrar of the International Criminal Court [ICC] sent a supplementary request to ask the State parties to the Rome Statute to effect the arrest and surrender of President Omar Ahmad Hassan Al Bashir [Omar Al Bashir] should he come to the respective territory.

As to who would implement the instructions of the Pre-trial Chamber, the court considered three aspects; first , whether there were serious issues raised by the applicant, second, whether it had been established by evidence that the applicant was directly affected by the issue raised,in other words, whether it was within the mandate of the applicant and third, whether the applicant had a genuine interest in the matter at hand. In this regard, the court held that the applicant had a genuine interest in the development, strengthening and protection of the rule of law and human rights. It went on to obsere that there was ample evidence that the Pre-Trial chamber of the ICC had issued two warrants on the 4th March 2009 with five counts of Crimes against humanity and two of war crimes on 12th July 2010 with three counts of orchestrating atrocities in the Western Province of Dafur in Sudan against President and that a request for arrest and surrender had been made to Kenya as a State party to the Rome Statute pursuant to Article 91 as read together with Article 92 of the said Statute.

Moreover, the court went on, that subsequent to the issuance of the second warrant of arrest, the Registrar of the International Criminal Court [ICC] sent a supplementary request on 21st July, 2010 for co-operation to all State Parties to the Rome Statute for the arrest and surrender of President Al Bashir should he set foot in Kenya but that the Government of Kenya had refused, neglected and/ or ignored to comply with the ICC request even when the said President was in Kenya on 27th August, 2010O.

With the above, the court concluded that the applicants had the necessary locus –standi to bring this application and that the orders sought by the applicant were justiciable and tenable in law hence issued them accordingly.

Message form The Hon. Mr. Justice N.R.O. Ombija, Judge of the High Court:

“It has come to my attention that there is in circulation on the internet and by email a copy of a ruling in the case of The Kenya Section of the International Commission of Jurists v Attorney General & 2 others – Misc Criminal Application No. 685 of 2010 supposedly attributed to me and which is not my decision or the final official ruling of the court in this case. I wish to clarify that the authentic ruling in the case, which corresponds with the one that has been delivered and signed by me, is the one found on the website of the National Council for Law Reporting (www.kenyalaw.org).”


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