Note: The written decision of J. Ombija can be found here.

On 28th November 2011, Justice Nicholas Ombija, a judge of the High Court of Kenya, delivered his ruling on an application for issuance of a provisional warrant of arrest against President Omar al Bashir. The application had been filed by the Kenyan Section of the International Commission of Jurists, (ICJ Kenya), and had joined both the Attorney General and the Minister for Internal Security as the Respondents.

Over several days of hearings, the court heard arguments from all the sides through their lawyers. The court also allowed Kenyans for Justice and Development Trust (KEJUDE) to appear as an Interested Party. 

ICJ Kenya does not yet have the benefit of the written ruling (as it is awaiting proofreading). From the notes of counsel for ICJ Kenya, the judge found that contrary to what the Respondents and the Interested Party had urged, ICJ-Kenya has locus standi to present the application under the new Constitution. He further noted that under Article 2 of the Constitution, international law that Kenya has ratified or acceded to (including the Rome Statute) is part of Kenyan law and, therefore, justified the “importation” of applicable provisions of the Rome Statute into ICJ Kenya’s application. He held that if the relevant Minister (in this case the Minister for Internal Security) reneges on his legal obligation to apply for a warrant of arrest under Section 30 of the International Crimes Act, then, under section 32 of the act, any person with locus may apply under to the High Court for the issuance of a provisional warrant. The judge thereby proceeded to order the issuance of the provisional warrant, to be enforced by the Attorney General and the Minister for Internal Security. He further ordered that in the event that these two public officers fail to enforce the warrant, then ICJ Kenya or any other private person may have them compelled to do so through the prerogative writ of mandamus. 

We are following up on the ruling and as soon as we obtain it, we shall furnish a copy to all those interested.  

ICJ Kenya makes the following observations:  

Kenya is a signatory to the Rome Statute which it has domesticated through the International Crimes Act, 2008. As the court found, Kenya has obligations under both the Rome Statute, which has become part of Kenyan law by virtue of section 2 of the Constitution of Kenya, and International Crimes Act which is domestic legislation.

The political leadership in Kenya obtained the support of the people of Kenya for the passage of a new Constitution on the promise that the constitution would alleviate decades of unaccountable exercise of public authority, and would usher in a new dispensation characterised by the rule of law.

What ICJ Kenya has tried to do in the Al Bashir is to hold the government of Kenya to the promise that it made to the people of Kenya that they will govern in accordance with the new Constitution. 

ICJ Kenya applauds Justice Ombija for the ruling. In the view of ICJ Kenya, the ruling has vindicated the rule of law that had come under serious threat following the visit to Kenya by President Bashir in August 2010, during which Kenya failed to arrest him, contrary to its domestic and international legal obligations. 

The Kenyan Court judgement is not unprecedented. In South Africa, the South African Litigation Centre made a similar application in May 2009 following word that President Bashir planned to attend the inauguration of President Zuma. President Bashir cancelled the trip. Sudan did not recall its ambassador from South Africa on that occasion, or expel the South African ambassador.

In 2010, following reports that President Bashir may visit Uganda, the Ugandan Minister of State for Foreign Affairs, Henry Okello Oryem, announced that President Bashir may be arrested on such a visit. However, President Museveni denounced the statement and apologized to President Bashir, who however, decided not to go to Kampala. Again, Sudan did not break relations with Uganda or expel its ambassador.

The Kenyan judiciary has spoken with great clarity. The Kenya government has two choices. On the one hand, the Kenya government can uphold the decision of the Judiciary and act on Bashir if he comes to Kenya. On the other hand, the Kenya government can go on defying the Constitution, the courts, and the will of the people of Kenya, in order to protect a friend of a few people in the government.