The provisional warrants of arrest issued six years ago directing the Internal Security Minister to arrest Sudanese President Omar al-Bashir have been lifted by the appellate court, removing a heavy yoke on Kenya’s shoulders.
Court of Appeal Judges David Musinga, William Ouko, and Agnes Murgor held that the provisional warrants issued on November 2011 should not have been issued by the High Court when it was clear that al-Bashir was not coming to Kenya, with the meeting he was scheduled to attend having been moved from Kenya to Addis Ababa, Ethiopia.
They said that in so far as the orders granting provisional arrest and the one directing the Interior Minister to effect the warrant are concerned, they were in agreement that the appeal by the Attorney-General must succeed as there was no jurisdiction upon which to issue them.
“True, after President al-Bashir left Kenya, no present effect could be given to the order that the government takes steps to arrest him upon coming to Kenya for the summit that was cancelled.
"And President al-Bashir is not in Kenya today,” the judges ruled.
On March 2009, the Pre-Trial Chamber of the International Criminal Court (ICC) had issued the first warrant for the arrest of President al-Bashir on five counts of crimes against humanity committed in Darfur.
A second warrant based on three counts of genocide was subsequently issued on July 12, 2010.
In both instances, the Registrar of the ICC sent requests for cooperation to all States Parties to the Rome Statute, including Kenya, asking them to arrest and surrender al-Bashir if and when he travelled to those countries.
However, as Kenya celebrated the promulgation of a new Constitution on August 27, 2010, President al-Bashir was among the leaders from the region who were invited and indeed he did attend the historic occasion.
Although Kenya was aware of the two warrants to arrest him, it did not arrest him.
When the Kenya section of the International Commission of Jurists (ICJ-Kenya Chapter) learnt that President al-Bashir was planning another visit to Kenya on October 2010 to attend an Intergovernmental Authority on Development summit meeting in Nairobi, it filed an application in the High Court seeking that the court grants a provisional warrant of arrest against him.
The planned visit did not take place as the Summit was moved to Addis Ababa, Ethiopia.
The orders sought were finally granted by the High Court on November 28, 2011.
In their decision on Friday, the Court of Appeal judges while lifting the provisional warrant of arrest against President al-l Bashir, however stated that Kenya was and is still bound by its international obligations to cooperate with the ICC to execute the original warrant for the arrest of President al-Bashir when he visited Kenya on August 27, 2010 and in future should he return to Kenya if the warrants are still in force.