In the last two days, a lot of heat has been generated around the visit of Sudanese President Omar Al-Bashir during the promulgation of our new Constitution.
The unfortunate statements attributed to some members of the UN Security Council as well as the ICC Pre-Trial Chamber cannot go without a response. The statements, and the decision, assert that African Union member states have “a clear obligation to co-operate with the Court in relation to the enforcement of such warrants of arrest. . . .’’ to which Kenya is a State Party.
It is quite curious that the decision by the Pre-Trial Chamber was made strangely in respect of the “expected attendance of Omar Al Bashir at the celebration scheduled for Friday 27 August”. Anyone conversant with the proper role and mandate of the ICC must be dismayed by the manner in which this decision was arrived at, let alone the substance and implications.
It is clear that the attempt by the Pre-Trial Chamber and some of the UN Security Council members to create a controversy totally fails to appreciate the context of the Horn of Africa region. First, Kenya’s stability is linked to that of its neighbours and the region. Indeed, Kenya has an abiding interest in ensuring peace and stability there by promoting peace, justice and reconciliation.
This can be achieved through continuous engagement with the Sudanese Government. Kenya has remained seized with Sudan, supporting the process that led to the signing of the Comprehensive Peace Agreement, as well as its implementation. Kenya continues to bear the negative consequences of the civil war that it helped negotiate to end.
For this reason, the country remains keen to pursue any measure that would encourage Sudan to attain sustainable peace. Furthermore, as a member of IGAD and a guarantor to the peace process in Sudan arising from the implementation of the Comprehensive Peace Agreement and the impending referendum in South Sudan, Kenya has an absolute duty and obligation.
The objective of having representation from the region, particularly Sudan, at Kenya’s most historic political event was therefore, to share a positive national development and to encourage Sudan as it moves towards its own historic referendum in early 2011.
The enthusiasm of the ICC to involve the UN Security Council is not only a reflection of its failure to appreciate the intricate reality on the ground, but also an indicator of yet another effort to force African countries to support the ICC.
This is irrespective of the complex dynamics that require striking a balance between peace and justice, which Kenya believes is not only necessary for Sudan, but essential for stabilising the region. In inviting President Bashir, Kenya is acting in alignment with the African Union decisions on this matter.
Interestingly, both the statements and the decisions grossly ignore the obligations of Kenya to the AU, arising from decisions of Assembly/AU/Dec. 245(XIII) adopted by the 13th Ordinary Session of the Assembly of Heads of State and Government, wherein the Assembly “decide[d] that in view of the fact that the request by the African Union has never been acted upon (by UN Security Council), the AU Member States shall not co-operate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar El Bashir of The Sudan”.
Also, the statements did not take cognisance of the obligations of AU member states arising from Article 23 (2) of the Constitutive Act of the African Union, which obligates all members “to comply with the decisions and policies of the Union”. To this extent, the decisions adopted by the AU policy organs are binding on Kenya.
Kenya strongly believes that sustainable peace and security anywhere must be underpinned by the three interconnected, mutually interdependent pillars of peace, justice and reconciliation.
It will be recalled that the repeated appeals to the UN Security Council by the Assembly of Heads of State and Government of the African Union as well as the AU Peace and Security Council to defer the proceedings against President Bashir for one year, and to allow for the peace process to make irreversible progress, have never been acted upon by the UN Security Council.
Mr Mwangi is permanent secretary, Ministry of Foreign Affairs.