Kenya's invitation to al-Bashir an affront to poll violence victims

Last week’s symbolic delivery of an invitation to Sudanese president Omar al-Bashir by Kenya’s Foreign Affairs minister Moses Wetang’ula to attend the ongoing extraordinary summit of the Inter-Governmental Authority on Development (Igad) taking place in Nairobi this week speaks volumes of the government’s commitment towards tackling impunity.

The invitation comes at a time when Kenya is exploring options to deal with gross violations of human rights which occurred during the post-election violence, and for which the Waki Report places significant blame on State security agencies and implicates a number of Cabinet ministers and senior government officials.

THE PROSECUTOR OF THE INTERnational Criminal Court (ICC) has subsequently sought the permission of the Pre-Trial Chamber to launch official investigations into Kenya’s post-election violence.

President al-Bashir faces a warrant of arrest issued by the ICC listing seven counts of individual criminal responsibility both as a direct and co-perpetrator of war crimes and crimes against humanity in the western region of Darfur.

These include murder, extermination, rape and forcible transfer of civilians in violation of the Rome Statute.

The timing of the overt invitation, keeping in mind Kenya’s own scrutiny by the court, lends the impression that Kenya supports impunity.

Victims of post-election violence in Kenya suffered violations concurrent with crimes against humanity as set out in the Rome Statute, including systematic rape.

Similarities can be drawn between the harm suffered by victims in Kenya and Darfur, notwithstanding the difference in scale. By extending such overtures to al-Bashir, given his inability to travel to other parts of the world, Kenya is effectively endorsing international crimes.

The Ministry of Foreign Affairs formulates foreign policy. Through its actions, the international community is able to gauge our foreign policy.

The international community has been grappling with the issue of impunity for decades, leading to the adoption of the Rome Statute in 1998 on the basis of which ICC was set up in 2002.

More than 110 countries, 30 of which are African including Kenya, are parties to the Rome Statute, signalling a commitment to ending impunity.

The action by our minister goes against the spirit of the Rome Statute which encapsulates the desire by the international community to secure justice for victims of the worst forms of human rights abuse.

The invitation of al-Bashir to Nairobi portrays our foreign policy as running contrary to our commitments under international law.

Further, a cross section of AU member states, led by Arab states sympathetic to al-Bashir’s indictment have formed a cauldron of impunity around the beleaguered Sudanese head of State.

The explicit invitation to al-Bashir signals a policy shift towards the position of this group of states with regard to the Sudanese president’s indictment and the role of the ICC.

Other State Parties to the Rome Statute have been clear on their obligations under the treaty in relation to the ICC’s arrest warrants against al-Bashir.

South Africa and Uganda expressly stated they would be obliged to arrest President al-Bashir were he to set foot on their territory. Kenya is a State Party to the Rome Statute and has domesticated the treaty through the International Crimes Act of 2008.

THIS PLACES LEGAL OBLIGATIONS on our authorities to cooperate with the ICC. Such cooperation includes the execution of ICC arrest warrants. Kenya has a duty to arrest al-Bashir should he set foot on Kenyan soil.

The policy shift has a bearing on Kenya’s own dilemma regarding the ICC. It is reasonable to consider the invitation to al-Bashir as a sign that the Executive is unable and unwilling to support the prosecution of those bearing the highest responsibility for the atrocities of December 2007 and early 2008.

More significantly, the invitation of al-Bashir to Kenya is an affront to the families of thousands of Kenyans who lost their lives during the post-election violence, the women who still bear the scourge of rape, and the thousands of citizens who remain internally displaced.

The writer works for the Kenyan Section of the International Commission of Jurists