Kenyan court upholds Al-Bashir ruling

The Court of Appeal has refused to suspend the arrest warrant against Sudan President Omar Al-Bashir, putting the government in an awkward situation.

The decision means that the arrest warrant issued by the High Court  remains in force and the Sudanese President will be arrested if he sets foot in Kenya.

The Attorney General appealed against the decision ordering the arrest of Al-Bashir following an ultimatum by the Sudanese President.

President Bashir had given the government two weeks to overturn the decision by a judge on November 28. (READ: Bashir issues ultimatum)

A fortnight ago, the Sudanese President issued a terse statement threatening to slap a broad range of sanctions on Kenya unless an order for his arrest issued by Justice Nicholas Ombija was set aside.

In the statement, President Bashir threatened to impose sanctions on Nairobi, including banning flights by any airline from or destined to Kenya, from flying its airspace.

Most aeroplanes into Kenya from Europe fly over Sudan.

Justice Ombija granted the orders sought by the Kenyan chapter of the International Commission of Jurists (ICJ).

Al-Bashir is wanted by the International Criminal Court for war crimes, genocide and crimes against humanity.

Appellate judges Emmanuel O’Kubasu, Erastus Githinji and Onyango Otieno ruled that the reasons Deputy Solicitor General Muthoni Kimani cited were not sufficient.

Ms Kimani had asked the court to lift the arrest warrant because it had affected the bilateral relations between Kenya and Sudan.

“We are applying for a stay in the interest of the general public to ensure that Kenyans are not adversely affected,” she said.

She added that the orders issued by Justice Ombija had created anxiety in the international circles.

Lawyer Wilfred Nderitu acting for ICJ-Kenya objected to the application to have the warrant suspended.

He argued the Court of Appeal could not grant an order to suspend operation of the law. The lawyer said that some diplomatic relations might be affected in defence of the Constitution.

The judges further questioned the decision by AG Githu Muigai to send Ms Kimani to argue the case which is of great public importance instead of him appearing personally.

“The days when the Attorney General hid behind the state counsel are gone,” Justice O’Kubasu said.

The judges said it was not proper for the AG to address the press on the matter at his chambers and yet he did not turn up in court to argue the case.

Lawyer Nderitu had earlier raised an objection to the handling of the case by the Attorney General’s office.

On Tuesday, Prof Muigai said the government would respect the court’s ruling. He said the Appellate Court ruling “was normal in cases of such nature.”

He said the government would wait until January next year when the court would rule on the appeal. The Court of Appeal will rule on ICJ-Kenya’s preliminary objection on January 24.

He said the AG had no capacity constitutionally to represent the government because it was only the Director of Public Prosecutions, who is mandated under the law to act in such a case.

The Court of Appeal will rule on ICJ-K’s preliminary objection on January 24.