The Kenya chapter of the International Commission of Jurists plans to go to court to obtain an arrest warrant against Sudanese President Omar Hassan al-Bashir.
They have already instructed lawyers to seek an order forcing the government to obey the International Criminal Court’s warrant of arrest against Mr Bashir should he set foot in Kenya again.
ICJ-Kenya seeks to persuade the courts to invoke the International Crimes Act and issue a provisional warrant.
Ensure his arrest
Documents seen by the Sunday Nation regarding the matter state the aim of the court action is to “deter Bashir from coming to Kenya, and to ensure his arrest should he ever visit Kenya”.
If successful, ICJ-Kenya’s executive director George Kegoro told the Sunday Nation the suit will “remind the political class that impunity shall not be condoned, and that gross violations of human rights shall be effectively redressed”.
ICJ-Kenya’s move comes at the beginning of a week when the Intergovernmental Authority on Development (Igad) is scheduled to meet in Nairobi over the implementation of Sudan’s Comprehensive Peace Agreement.
Although Khartoum is invited to the meeting, it is not clear whether Mr Bashir will attend or send a representative. If ICJ-Kenya gets the provisional arrest warrant, then ICC officers can come to Kenya and arrest Mr Bashir themselves.
Without the warrant, the law directs that the Sudanese President’s arrest will have to be executed by the Internal Security minister.
However, as the government failed to arrest Mr Bashir when he came to Kenya for the August 27 promulgation of the new Constitution, it is unlikely they would were he to return to the country.
The government has committed to respecting the African Union’s resolution to ensure a peaceful referendum in Sudan in January.
In fact, President Kibaki has already informed the United Nations that the stability of Sudan is crucial to the stability of the whole region, indicating that should Mr Bashir be arrested, the peace agreement is likely to collapse.
“I believe that continued engagement with the leadership of both the National Congress Party and the Sudan People’s Liberation Movement (SPLM) is the only way towards the peaceful resolution of the challenges facing the Sudan,” President Kibaki told the UN General Assembly on September 23.
The ICC cannot arrest Mr Bashir in Kenya because he enjoys diplomatic immunity as recognised in international law. If the Internal Security minister does not execute the warrant, the ICC’s hands are tied unless there is a corresponding warrant in the country.
“Political convenience in Kenya is increasingly taking centre stage at the expense of justice, and an invitation to a person accused of war crimes and crimes against humanity by the ICC is sending highly dangerous signals on the fight against impunity to the public ahead of the 2012 General Election,” the ICJ-Kenya document warns.