President Omar al Bashir warrant of arrest:A High Court ruling that caused a forure in the diplomatic and political circles

When the High Court Judge,Nicholas Ombija,issued a court order,on Monday,29th November,directing the government to arrest Sudanese President,Omar al Bashir ,should he ever set foot in KENYA,he didn’t know he was arousing a raw nerve which has ruffled many feathers.It was just a High Court ruling which went through the normal judicial process unnoticed,until it’s ruling shocked the deep rooted roots.The executive arm of the government was caught off guard by the High Court ruling which almost crippled the political and diplomatic feathers in the wrong ways.

And,according to the law experts this High Court verdict portrays a milestone ,a high scorecard in the judiciary which for a long time had been trapped and performed it’s duties at the whims the executive.It had been trapped in the cobweb of corruption,inefficiency and delayed justice .It was operating in a cocoon where only the elites in the society accessed the flawed justice at their own favour.

Now the reforming judiciary is asserting and stamping it’s authority,where it is following the rule of law to the letter,as the effects of the new constitution trickles down,with the separation of power within the three arms of the government starts to take root.The reformed judiciary is moving out of the cocoon of the older order and now treading to the tune of the new constitution.

With Kenya been a signatory to the Rome statute,which established the International Criminal Courts,the High Court Judge,based his argument on this laws,which opened a can of worms.Varied opinions are being aired either ,criticizing,or,appraising the ruling.But,the fact of the matter is,Judge Ombija seems to have based his judgment on the fact that Kenya is a party to the Rome statute.

According to Foreign Affairs minister,Moses Wetangula,while down playing the ruling lamented that,he feels that the judge didn’t conduct himself properly.It would be difficult to obey the ruling ,and,he described it as “judgment in error”which failed to consider the need to balance delicate international relations.He characterized Mr.Ombija’s judgment as “unhelpful”arguing that the High Court should not “operate in a vacuum”.

But,in a quick rejoinder ,while supporting the judge,the Chief Justice,Dr.Willy Mutunga,told the leaders who are unable to live by the constitution should resign instead of trying to return the country to the dark days of oppression and impunity.To those disobeying a court ruling -constitution provisions are there to be obeyed and any public ,or,state official who finds certain clauses administratively inconvenient must be reminded that vacation of office is a honourable option if one is no longer feels capable of honouring his,or,her oath of officeto protect ,defend and uphold the constitution.

He warned leaders who were failing by default ,or,design to respect the law.He reiterated that the judiciary under his watch would not fear to interpret the constitution as required.We shall not blink,or,flinch in interpreting the constitution.

The High Court case was filed by the International Commission of Jurists[I.C.J] kenya chapter,after Bashir visited Kenya during the promulgation of the new constitution.The I.C.J moved to Court to protest government’s failure to arrest Al Bashir under International Treaty.

President Al Bashir,is wanted by the International Criminal Courts to answer charges of war crimes,crimes against humanity and genocide committed in Sudan’s war torn region of Darfur.And,all state parties to the Rome statute,which established the I.C.C,are obliged to arrest him if he sets foot in their territory .The Hague based courts has already issued two warrants of arrest to him.

However,in July 2009,the African Union,asked it’s members to disregard the arrest warrants for President al Bashir ,after U.N security council turned down it’s request to suspend indictment.Thus President Al Bashir freely visited Kenya on August 27,2010,as a guest of the government during the promulgation of Kenya’s new constitution.He is further protected by the African Union agreement not to honour the I.C.C indictment.

After that state visit upon which Kenya didn’t act despite been a Rome statute signatory caused a massive furore of criticism from human rights groups.

And,following that ruling by the High Court judge,Mr.Bashir,reacted angrily by ordering Kenya’s envoy to Khartoum to leave the country within 72hrs,and,recalling Sudan’s ambassador to Kenya,a decision which was later receded.


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