Lawyers furious with State stand

Human rights lawyers Gladwell Otieno (right) and Atsango Chesoni at a press conference on Friday. They condemned the government for declaring that it will not enforce an arrest warrant against Sudanese President Omar al-Bashir. Photo/FILE

By declaring that it will not enforce an arrest warrant against Sudanese President Omar al-Bashir, the government may unwittingly be confirming fears of the International Criminal Court that it might not hand over the Ocampo Six if required to do so.

Lawyers are cautioning that the government’s declaration, which could be seen as support for impunity, may also weaken its argument for referral of the Kenya case and complicate matters for the six suspects.

They say that support for the Sudanese leader might be seen as a sign that if the Kenyan case were to be referred, there is little chance that the suspects would be arrested and prosecuted in Kenya for the alleged offences.

Besides, it demonstrates that the Executive has no regard for the rule of law and respect for fundamental human rights.

This, in their view, could persuade the ICC judges to confirm the Kenya case.

“Kenya’s behaviour is a personification of impunity. The ICC judges are not silly. The government is displaying impunity, and it is not helping the suspects,” said Mr Paul Muite.

German-based lawyer Alexander Eichener shares the view.

“The government’s conduct as a whole does not serve the suspects’ interest but rather will strengthen the court’s already visible conviction both in Pre-Trial chamber and appeals chamber that it (government) is not neutral, but actively aids and abets suspects to escape from justice,” he says.

Deputy Prime minister Uhuru Kenyatta, Head of Public Service Francis Muthaura, MPs William Ruto and Henry Kosgey, postmaster-general Hussein Ali and journalist Joshua Sang are facing crimes against humanity charges before the court.

The ICC Pre-Trial chamber is next month supposed to rule on whether any of the six cases will proceed to trial.

It is Prosecutor Luis Moreno-Ocampo’s contention that Kenya is unwilling to try the suspects, some of them powerful and highly influential officials in the coalition government.

“The decision by the government may be an indication of its unwillingness to cooperate with the ICC with respect to the two Kenyan cases,” said a group of human rights lawyers led by Ms Atsango Chesoni, one of the experts who drafted the new Constitution. (Read: Lobby backs Bashir arrest warrant)

The power elite around President Kibaki favours Mr Kenyatta to succeed him when he retires from State House next year while Mr Muthaura is a close confidant.

In what was largely seen as an attempt by a section of the government to shield the suspects, an unsuccessful petition was filed at the ICC arguing that the cases facing the Ocampo Six be referred back to Kenya.

The government also dispatched Vice-President Kalonzo to seek support abroad for Kenya’s efforts to stop the cases.

He did not succeed even as arguments emerged that the move was counter-productive, ill-advised and could strengthen the prosecution’s arguments against Kenya and the suspects.

Mr Eichener thinks the Kenya government has made it “absolutely doubtless” that it is opposed to the ICC, and that it has done and continues to do everything within its means, “in order to protect, to hold brief for, and to openly defend the suspects”.

Mr Muite sees the al-Bashir saga as an attempt to protect the powerful at the expense of victims of atrocities in Kenya and Sudan.

The Sudanese president is the subject of two arrest warrants issued by the ICC for alleged atrocities committed in Darfur. He faces genocide, war crimes and crimes against humanity charges.

Judge Nicholas Ombija last week stirred the hornet’s nest when he ordered that President Bashir’s arrest “should be effected by the Attorney-General and the minister for Internal Security should he ever set foot in Kenya”.

Mr Bashir was in Kenya last year for a ceremony in Nairobi to mark the adoption of the new Constitution.

Coded message

“The reason why President Kibaki invited Bashir to Kenya during the ceremony to promulgate the new Constitution was to send a message to the ICC that it will not honour any arrest warrants,” argues Mr Muite.

After Mr Bashire left the country a free man, the Kenyan chapter of the International Commission of Jurists, an association of legal professionals that promotes human rights, approached the courts to issue a warrant.

Foreign Affairs minister Moses Wetang’ula described Mr Justice Ombija’s decision as a “judgement in error” and on Thursday flew to Khartoum to make peace with Mr Bashir.

“The judgement wasa threat to the conflict resolution process Kenya has initiated in the 50 years of war in Sudan,” he said. But Mr Muite reckons that Kenya’s conduct is ill-advised. “I am afraid the conduct of the government before the confirmation of charges hearings, is not helping the suspects.”

Kenya argues that it is bound by a decision of the African Union which had advised member countries not to act on the ICC arrest warrants saying it would jeopardise efforts to restore peace in Darfur.

But Ms Chesoni said Kenya had only one choice in the matter: to honour its Constitution and its international obligations.

“The fundamental principle of international law is that “agreements shall be kept,” says Ms Chesoni’s group, Kenya for Peace with Truth and Justice.

Mr Ndungu Wainaina, a defender of the ICC process in Kenya, said Mr Wetang’ula’s remarks “smack of official impunity”.