Sudanese President Omar al-Bashir escalated the standoff between his country and Kenya on Friday night when he gave Nairobi a two-week ultimatum to overturn a High Court order for his arrest.
In a terse statement, President al-Bashir said his country would slap a broad array of sanctions against Kenya, including banning flights by any airline originating from or destined to Kenya, from overflying its airspace.
Most flights coming into Kenya from Europe overfly Sudan. It is unclear what effect such a ban would have.
The Sudanese strongman has also threatened to expel more than 1,000 Kenyans living in Sudan and ban its exports to his country should it fail to overturn the ruling within the next two weeks.
Also covered in the expulsion order are Kenyan peacekeeping troops based in Darfur, the statement added.
“The President of the Republic, Field Marshal Omar al-Bashir, decided to delay the expulsion of the Kenyan ambassador to Khartoum and recalling the Sudanese ambassador from Nairobi for two weeks, following his receiving yesterday evening of Kenyan Foreign Minister as an envoy of President Mwai Kibaki,” the communiqué published in the daily Sudan Tribune read.
“Bashir told the Kenyan presidential envoy that Sudan expects that the State opposes the Kenyan court’s decision itself because it is contrary to international and regional obligations and hurts its direct interests particularly with Sudan,” the statement said.
It stated that “Sudan will wait for two weeks to give an opportunity for Kenya’s effort to contain the issue and take the measures required but will have no choice but to move forward in steps, which began by expelling the ambassador of Kenya and the withdrawal of its ambassador in Nairobi.”
Foreign Affairs minister Moses Wetang’ula, who was dispatched to Khartoum by President Kibaki to try to pacify Mr Bashir, told journalists on Friday that Khartoum had agreed not to enact the sanctions following his visit.
His statement that Sudan would not expel Kenyans living or studying in Sudan or stop Kenyan exports to Khartoum appears to have been overly optimistic in light of the Sudanese government statement.
“Sudan had set out a raft of reprisals against Kenya that would have had a negative effect on our economy and country ... We were able to stop these,” Mr Wetangula said on arrival in Nairobi on Friday.
He said Kenya would have lost a key market for its tea, coffee and other products if the row had continued. Sudan bought tea worth $200 million from Kenya last year, but its exports to Kenya were negligible, he added.
Nor would Kenya’s ambassador to Sudan, Mr Robert Mutua, be expelled, while Sudan’s ambassador to Kenya would stay in Nairobi, the minister said.
Though Mr Wetang’ula has reiterated the government’s determination to appeal the ruling against President al-Bashir and has even picked a team of lawyers to initiate the process, it will be a tall order for the State to meet the two-week ultimatum to overturn the ruling.
The Kenyan Judiciary is independent, and it is unclear whether judges in the Court of Appeal will buy the government’s arguments to set aside the ruling.
“From a legal position, a resolution of the Intergovernmental Authority on Development (IGAD) or African Union, which the government is relying upon to challenge the ruling, is inferior to our constitution,” said veteran lawyer Paul Muite. “A resolution of the Geneva Convention is also inferior to the Rome Statute which Article 2(6) of the Constitution domesticates. To this extent, Justice Nicholas Ombija’s ruling is sound, and I don’t see how any court can set it aside.”
But a source within government offered a different view: “Under international law a sitting head of state enjoys complete immunity from criminal prosecution.
There are several cases that have delved into this matter very deeply including the Abdoulaye Yerodia case in the International Court of Justice where it was ruled that the minister for Foreign Affairs should not be arrested in Belgium on the strength of a warrant issued there.
There is also the case of the USA and Robert Mugabe in which the US Court of Appeal found in President Mugabe’s favour.
These will be used to argue the case against the judgment entered by Justice Ombija.”
A ban on using Sudanese airspace would significantly affect Kenya’s commercial and tourism interests as it would force all flights originating from or destined to Kenya to seek alternative and most likely longer routes to reach their destinations.
The majority of the flights coming from or destined to Europe overfly Sudan, and such a ban could adversely affect the operations of the aviation industry.
In the ruling, Justice Ombija ordered the government to arrest the Sudanese leader and hand him over to the International Criminal Court (ICC) should he set foot in Kenya.
The ruling faulted the government for failing to apprehend al-Bashir when he visited Nairobi on August 27 last year to witness the promulgation of the new Constitution.
The Sudanese leader is wanted by the ICC for war crimes, crimes against humanity and genocide he allegedly masterminded in Sudan’s western region of Darfur.
Kenya is a signatory to the Rome Statute that established the ICC but argues that the African Union (AU) resolution that its members not cooperate with the court in apprehending al-Bashir overrides its obligation under the statute.
Mr Wetang’ula maintains that President al-Bashir is welcome to attend the forthcoming IGAD meeting in Nairobi to discuss the Comprehensive Peace Agreement (CPA) signed between Sudan and the former Southern Sudan on grounds that the Sudanese leader is a critical player in the pact.
The Sudanese newspaper quoted Sudanese Foreign ministry officials as saying that al-Bashir expects Nairobi to scrap the arrest warrant within the next two weeks and not simply file an appeal.
Kenya’s Chief Justice Willy Mutunga has publicly defended Justice Ombija and warned the Executive to obey court orders instead of intimidating the Judiciary.
“To choose not to obey court orders is to overthrow our Constitution. Court orders apply universally to ordinary citizens, corporations, members of the Judiciary, Executive and Legislature.
“If a country chooses to live by anarchy, it must be ready to face the consequences of disregarding the law,” the CJ said.