Kenyan Appeals Court Strongly Affirms That al-Bashir Cannot Claim Immunity As a Defense Against the ICC’s Arrest Warrants

by Tim Fish Hodgson

[Tim Fish Hodgson is a Legal Adviser for the International Commission of Jurists in Johannesburg, South Africa.]

A Kenyan Court of Appeal decision handed down last week has, once again, reaffirmed the Kenyan government’s international obligation to arrest Sudanese President Omar al-Bashir should he ever return to Kenya. The Court concluded “the Government of Kenya by inviting al Bashir to Kenya and failing to arrest him acted not only with complete impunity but also in violation of its international obligations.”

The African Union and some individual States such as South Africa, Uganda and Kenya appear to have serious concerns relating to what they perceive the conflicts between their obligations to arrest al-Bashir under the Rome Statue of the ICC and their obligation to respect his diplomatic immunity as a Head of State. This apparent conflict is clearly expressed by both the African Union’s ‘Withdrawal Strategy Document’ and the draft International Crimes Bill introduced by the Minister of Justice to South African Parliament. But the greatest testament to this discomfort is these and other states repeated failures to arrest al-Bashir despite their international legal obligations and pressure from local, regional and international human rights defenders.

The Kenyan Appeal Court recognized the “rare geopolitical predicament” faced by the Kenyan government in balancing its “focal role” in Sudan and “remaining true the African Union resolution not to cooperate with the [ICC]” with its obligations in terms of the international criminal law which is has domesticated in its own International Crimes Act.

Nevertheless, grounding its judgment in the historical foundations of international criminal law, the Court quotes with approval the Nuremberg Tribunal’s observation that “perpetrators cannot shelter themselves behind their official positions in order to be freed from punishment in appropriate proceedings”. The Court notes that when a state commits acts which violate ius cogens norms it “waives any rights to immunity” and concludes that, similarly, “we have no doubt that an exception to immunity exists in cases where the individual is responsible for crimes against humanity”. This, it reasons is because “acts amounting to international crimes of individuals cannot be considered legitimate performance of official functions of State” capable of attracting immunity in the first place.

In taking this approach the Kenyan Court of Appeal deftly acknowledges that despite the potential political conflicts that there is no real legal conflict between provisions on the Rome Statute with respect to immunity. This same approach was supported by the International Commission of Jurist’s submission to South African Parliament signed by six former Constitutional Court Justices and Navi Pillay the former United Nations High Commissioner for Human Rights. In a judgment that has received praise from international law experts John Dugard and Guénaël Mettraux no less, the Supreme Court of Appeal of South Africa too concurred with this approach, noting that allowing immunity to prevent arrest in such situations “would create an intolerable anomaly”.

Highlighting the irony that Kenya’s government disregard of its international obligations in inviting al-Bashir to the inauguration of Kenya’s progressive Constitution, the Court also notes that the government’s actions violate a specific provision of the Kenyan Constitution itself. Article 143(4) of the Constitution reads “[t]he immunity of the President under this Article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity”.

Despite these categorical statements of Kenya’s legal obligations to arrest al-Bashir pursuant to the Kenyan Constitution, the International Crimes Act and the Rome Statute of the ICC, the Court overturned the provisional arrest warrant for al-Bashir issued by the High Court on the ground the requisite urgency no longer existed at the time the order was issued.

This, it reasoned, is because section 131(1)(c) of Kenya’s International Crimes Act explicitly permits the issuing of a provisional warrant only if “it is necessary or desirable for an arrest warrant to be issued urgently”.

This aspect of the Court’s judgment, which is inconsistent with the Rome Statute, strongly implies that future applications relating to al-Bashir’s arrest would need to be heard and determined urgently before or during a visit to the country. This despite the Court’s own observations that the Kenyan government remains bound by its international obligation to cooperate with the International Criminal Court by executing warrants the ICC had issued when al-Bashir’s visit in 2010.

Bolstering the possibility of the urgent issue of a provisional arrest warrant in a Kenyan High Court, however, the Court’s decision affirms that human rights organizations such as the Kenyan Section of the International Commission of Jurists have legal standing to approach the High Court requesting the issue of a provisional arrest warrant. This will mean that, as with litigation initiated by the Southern Africa Litigation Centre in South Africa, the Kenyan government’s own continued indifference or deliberate resistance to its international obligations, would not prevent al-Bashir’s arrest should he return to the country.

The judgment of the Kenyan Court of Appeal is of regional and international significance in the face of increasing threats of collective withdrawal of African countries from the ICC. Most particularly, after failing to arrest al-Bashir on a visit to South Africa in 2015, the South African government appears to be charging ahead with its intention to withdraw from the ICC by proposing the enactment of woefully inadequate domestic legislation.

As a decisive statement by an African court this judgment will be useful for human rights defenders, lawyers and judges in South Africa who are consistently accused of lacking regional legitimacy by the government in their attempts to ensure that al-Bashir is arrested and prevent South Africa’s withdrawal from the ICC. In the South African context, it remains to be seen whether newly appointed President Cyril Ramaphosa may change the South African government’s headstrong tune in the face of considerable, consistent and widespread criticism.

Finally, to some the Kenyan Appeal Court’s decision to invalidate the provisional arrest warrant for al-Bashir may appear to provide legitimacy to the Kenyan governments action. Properly read, this is perhaps merely politically astute exercise of its powers and is clearly overshadowed by the Court’s decisive condemnations of the government’s intransigence and strong findings which make absolutely clear that the Kenyan government is obliged to cooperate in al-Bashir’s arrest should he ever return to Kenya.

In terms of 163(4) of the Kenyan Constitution decisions of the Appeal Court may be appealed to the Supreme Court of Kenya if it can be shown that the matter involves the interpretation or application the Constitution or if it is decided that it is a matter of “general public importance”.

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