CJ takes tough line over Bashir arrest warrant

Chief Justice Willy Mutunga dug in on Thursday, warning the Executive to stop interfering with the Judiciary.

Standing shoulder-to-shoulder with a judge who had issued warrants of arrest against Sudanese president Hassan Omar Al-Bashir, Justice Mutunga said his judges would not be intimidated into bending the law.

Kenya must choose between anarchy and the rule of the law, he said.

“The Judiciary and its officers shall not be intimidated to bend the law,” he added.

“In accordance with Article 160 of the Constitution, each individual judicial officer is independent and is not subject to the control or direction of any person or authority in the dispensation of judicial duties,” the CJ said.

High Court judge Nicholas Ombija on Monday ordered Internal Security minister George Saitoti, who is in charge of the police, to ensure the arrest and handing over of the Sudanese leader to the International Criminal Court if he sets foot in Kenya.

President Al-Bashir is wanted for crimes against humanity and genocide at the ICC.

While the ruling was in keeping with the law, especially the treaty setting up the ICC, it flew in the face of regional politics and diplomacy.

The warrant triggered a diplomatic confrontation between Nairobi and Khartoum, with the latter kicking out Kenya’s ambassador to Sudan, Mr Robert Mutua, and recalling its own.

The government, which has made commitment to the African Union not to arrest President Al-Bashir and is involved in various regional security and diplomatic initiatives with Khartoum, reacted to the warrants with horror.

Foreign Affairs Minister Moses Wetang’ula, who rushed to Khartoum to mollify Mr Bashir, on Tuesday described the warrant as “insensitive” and has promised to appeal.

“As much as we respect the ruling of the High Court, we are aware that the court does not operate in a vacuum. It is important that the country’s national interests as well as the wider interests of the region that we live in are taken into account in matters of this nature. Since our judicial system provides for right of appeal, we shall carefully look at the judgment with a view to requesting the Attorney General to expeditiously prefer an appeal in the matter,” Mr Wetang’ula said.

But in a terse statement, Justice Mutunga asked the Executive to respect the separation of powers and keep off the Judiciary’s domain.

“I have stated before that the Judiciary does not intend to use its independence or interpret the doctrine of separation of powers in a manner that transgresses the domain of the Executive and the Legislature,” he said.

It was “worrying”, the Chief Justice said, for senior government officials to make disparaging public statements that undermine judicial officers and the Judiciary in general.

He advised anybody aggrieved by a court ruling to appeal against it instead of threatening to disobey such ruling.

“Any dissatisfaction with a decision of the court should be followed with an appeal and not proclamations of non-observance of court orders,” the CJ said, adding that failure to obey court orders amounted to overthrowing the Constitution.

In Parliament section of MPs supported the warrant of arrest issued against Al-Bashir.

The MPs criticised the government’s intention to contest the High Court decision and accused it of encouraging impunity.

They accused the government of treating Mr Bashir with kid gloves despite the warrant of arrest by the ICC.

Defence assistant minister David Musila said Mr Bashir should keep off Kenya if he did not want to be arrested. Nyakach MP Pollyns Ochieng’ criticised the government for sending Mr Wetang’ula to settle the issue with Mr Bashir following the ruling.

“This government is promoting impunity yet it is known that Mr Bashir is on ICC’s most wanted list over the Darfur killings,” the MP said.

Ikolomani MP Boni Khalwale said Kenya had no responsibility to protect Mr Bashir.

However, Foreign Affairs assistant minister Richard Onyonka, defended the government. He said the Sudan is a significant peace player in the Horn of Africa and Kenya must maintain friendly relations with it.

And Human Rights Watch expressed support for the warrants against President Bashir.

“It is wonderful to see the Kenyan courts acting in line with Kenya’s international commitments and the Constitution,” Human Rights Watch spokesman Ben Rawlence told the Nation. “Now the government must uphold their decision and act on it.”

In Malindi, the executive director of the International Commission of Jurists, Kenya chapter, Mr George Kegoro, said the government was bound by the Rome Statute and the ruling of the High Court.

Reported By Peter Leftie, Caroline Wafula, Robert Nyagah, Kevin J Kelley and Agencies