Tension is mounting between Nairobi and Khartoum over an order by Kenya’s high court to arrest the president of Sudan and hand him over to the International Criminal Court (ICC) should he ever set foot in Kenya.
Now, Sudanese president Omar al-Bashir has given Nairobi a two-week ultimatum to overturn the court’s order for his arrest.
The Sudanese leader is wanted by the ICC for war crimes, crimes against humanity and genocide over the conflict in the western region of Darfur.
In return, the Sudanese leader has threatened a broad array of sanctions, including banning flights by any airline originating from or destined to Kenya from overflying its airspace. Most flights coming into Kenya from Europe overfly Sudan.
“My own position is that the Sudanese government has acted a bit improperly,” said Emanuel Kisiangani, a senior researcher in the African Conflict Prevention Programme at the Institute for Security Studies in Pretoria, South Africa.
“This was a decision taken by a Kenya court and not the Kenyan government,” he said, “and therefore reprisal action by Sudan, such as recalling their ambassador from Kenya and threatening to expel the Kenyan ambassador to Sudan, was a bit quick (sic). They should have pursued the issue diplomatically.”
Kenya is a signatory to the Rome Statute that established the ICC but argues that the African Union (AU) resolution that its members not cooperate with the court in apprehending al-Bashir overrides its obligation under the statute.
But Kisiangani pointed out that the Kenyan judiciary operates on the basis of the country’s constitution and not on the basis of AU resolutions or anything else although they might be signatories to those organizations’ treaties.
“Right now, the new Kenyan constitution provides that any treaties or conventions which Kenya has ratified become domesticated and part of Kenyan law,” explained Kisiangani, “and Kenya has ratified the Rome Statute under which the ICC seeks the arrest of Bashir.”
He, however, said in terms of state-to-state relations Sudan might have an upper hand as the threatened actions could hurt Kenya economically.
Kisiangani expressed optimism that diplomacy might succeed in resolving the issues at hand, citing the recent visit to Khartoum by Kenyan foreign minister Moses Wetang’ula, and Kenyan government efforts to appeal the court ruling.
“The question is whether the appeal process can be concluded within two weeks. I doubt it.”
Increasingly in Kenya, he said, there is this “assertiveness of the judiciary. [It] is independent, and might not just [comply with] what the government is trying to do diplomatically.”
“I think that is where we are going to have a predicament,” said Kisiangani, adding “Government will appeal, but I am not sure they will be able to overturn the decision within two weeks.”