Kenya Hosts Bashir at Celebration of Its “U.S.-Style” Constitution

by Julian Ku

Lots of ironies in this story about Kenya hosting Sudan’s President Bashir at a ceremony celebrating the establishment of its new “U.S.-style” Constitution.

NAIROBI, Kenya – Kenya’s president signed a new constitution into law Friday that institutes a U.S.-style system of checks and balances and has been hailed as the most significant political event since Kenya’s independence nearly a half century ago.

Joining African leaders at the festivities was Sudan’s president who faces charges of genocide and crimes against humanity in connection with violence in Darfur, where U.N. officials estimate 300,000 people have died.

This is quite a slap in the face to the ICC Prosecutor and the defenders of the Bashir arrest warrant. If Bashir is not prevented from traveling to ICC signatories like Kenya, then the arrest warrant looks even more toothless. As far as I know, the ICC Statute does not contain any sanctions for parties that violate its terms, but I suppose other states or the Security Council could penalize Kenya and Chad for their violations.  I don’t see this happening, which offers yet another reason to think the entire plan to arrest Bashir was probably a dumb idea to begin with.

http://opiniojuris.org/2010/08/27/kenya-hosts-bashir-at-celebration-of-its-us-style-constitution/

6 Responses

  1. Doesn’t look good, that’s for sure. According to article 87(7) of the Rome Statute this matter can be referred to the Security Council, since the latter came up with the situation in the first place.

  2. ICC released a Press Release on this, and see here for the Court’s referral of this “neighbourly visit” to the Security Council.

  3. This is worrying given that investigations of 2007/8 Post Election Violence are being conducted in Kenya by the ICC prosecutor. Will those implicated in crimes against humanity in Kenya be buoyed by the impunity displayed by Al Bashir this Friday? Will the Kenyan Government also ignore possible arrest warrants against Kenyan citizens in the event the prosecutor decides to prefer charges?

    Earlier, Kenya forced the prosecutor’s hand by breaching its assurances that it would self-refer to the ICC. Add to this the fact that much of the world suspects (despite the Kenya government’s off-hand denials) that Felicien Kabuga, wanted for international crimes relating to the Rwandan Genocide, resides in Kenya. This country is fast picking up the reputation of being a haven for those hiding from International Justice.

    It is also incongruous for the Kenyan foreign minister to justify Bashir’s presence to journalists by saying that as far as he knows ‘no court has found Al Bashir guilty’ when less than a month ago, several Kenyans- allegedly linked with the World Cup bombings in Uganda- were bundled across the border into Uganda in the dead of night without the requisite extradition process. Why does the presumption of innocence protect Bashir and not them? In contrast, a (relatively) lengthy legal process preceded the Bashir Arrest warrant.

    Unfortunately despite the new constitution (which I heartily welcome), there is still the grim reality in Kenya that the weak are punished and the powerful are protected.

  4. Some of the parties could go to the Assembly of States Parties and ask whether Kenya and Chad violated the statute. Eventually this could be decided bij ICJ. It’s that simple.

    Article 119
    Settlement of disputes

    2. Any   other   dispute   between   two   or   more   States   Parties   relating   to   the interpretation   or   application   of   this   Statute   which   is   not   settled   through negotiations within three months of their commencement shall be referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or may  make  recommendations  on  further  means  of  settlement  of  the  dispute, including  referral  to  the  International  Court  of  Justice  in  conformity  with  the Statute of that Court.

  5. It must be frustrating for the Court not to have the power to execute these warrants itself. But do the judges have a legal basis for this “Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territory of the Republic of Kenya”?

    Article 87(7) allows the Court to inform the ASP and SC of a state party’s failure to comply with a cooperation request, but only after a finding to that effect. The Court made no such finding in this decision. (Had it been such a finding, it should have heard Kenya first pursuant to regulation 109(3)).

    What is the role of article 87(7) if the judges may inform the ASP and SC of whatever they like to inform these organs? The purpose of this “decision informing” the SC and the ASP is not generously to share information that only the judges had access to – the ASP and SC were well (or better) informed about Bashir’s possible visit to Kenya. Rather than a decision to inform, it is a decision to encourage the ASP and SC to “take any measure they may deem appropriate”. Without a legal basis, such encouragement comes down to political activism.

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