Bashir in Kenya for constitution promulgation Photo courtesy
The wrangles evidenced recently between Kenya’s Judiciary and the Executive over the ruling that Sudanese strongman, Omar Bashir, be apprehended shall he visit Kenya, left many analysts flabbergasted. One judge, Nicholas Ombija, made a historical ruling when he ordered the Minister for Internal Security to see to it that should Bashir set foot on Kenyan soil, he must be apprehended and handed over to The Hague.
We used to read about such rulings made by European judges, famous ones being those that were made by Spanish Judge Fernando Andreu, and French judge Jean-Louis Bruguière, who in April 2008 and November 2006 respectively, indicted Rwandan President, Paul Kagame. When these two judges indicted Kagame, many people wrongly thought that this was a venue for only European judges. Now that Ombija has opened the Pandora’s Box for our bigwigs, who will be safe?
According to Kenya’s Minister for Foreign Affairs, it is difficult for the Kenya government to abide by the ruling of its own court. What a dangerous stance! The Minister holds that Kenya will abide by the AU position that opposes the indictment of Bashir.
How can a free country endanger its freedom for the sake of an individual who is not its citizen? Legally and logically, the constitution of Kenya is above that of AU. Whatever Kenyans do, Kenya comes first. Why is Kenya upholding AU’s non-binding decision whilst it violates the Rome Statutes that it signed voluntarily? Why does Kenya want to abuse its own new constitution before even it marks a year? Why doesn’t Kenya do like Uganda that distanced itself when Bashir was invited to a conference in Kampala?
It is shocking and sad to note that Kenya’s Minister for Foreign Affairs who was dispatched to Khartoum to mend fences, does not realise that the AU has lost its legitimacy by supporting illegitimate regimes, even when they have committed atrocities against their people. If anything, though the government in Nairobi is still flexing its muscles, the dent… deep and humongous one… has already been made.
Will the Kenya government taint its image in defence of a dictator? Will Kibaki uphold the constitution and serve the Kenyans that voted for him or trample over it and serve the Sudanese strong man? For what reasons and gains?
Kenya’s Executive arm is waging a losing battle, thanks to the fact that the judge made his decision based on the provisions of the new constitution. Therefore, whoever advises the Executive should be wise to underscore the fact that, under the new constitution, nobody is above the law. If the Executive is still thinking that it is operating in the past when the president was above the law and the Executive above judiciary, they need to be told that things have long changed.
Kibaki spoiled the party at the promulgation of new constitution by inviting Bashir. Will he add salt to injury? Thanks to the euphoria Kenyans were in, he got away with it. Will he get away with it again? The answer is nope. Logically, it doesn’t make sense for Kibaki to dent his image by siding with a dictator indicted for committing genocide against his own people.
Dr. Willy Mutunga, the Chief Justice has already weighed in heavily and categorically so to speak. Responding to rants that the executive were not thinking about complying with the ruling, Mutunga was quoted as thus: “The Judiciary and its officers shall not be intimidated to bend the law.” To make his message clear, Mutunga added that Kenya must choose between anarchy and the rule of the law. Suppose the executive stick on their guns, will the judiciary allow itself to be cowered or stiff its neck and therefore create a crisis especially at this time Kenya is at war with Al-Shabaab?
Kenya has nothing to lose by dumping Bashir. Kenya is a major economic and political player in South Sudan. Shall it keep on thinking it can serve two masters namely Bashir and South Sudan? It should not wonder when South Sudan decided to part ways with it. The French sages say:“les amis des mes sont mes amis.” That is, the friends of my friends are my friends. What of the enemies of my friends? Doing Bashir’s laundry will leave Kenya messy and stinky.
Source: The African Executive Magazine Dec. 14, 2011.