On December 12, 2009, a Westminster Magistrate’s Court in England issued a warrant of arrest against a former Israeli Foreign Minister, Tzipi Livni, at the request of lawyers representing Palestinian victims of Israeli military operations in Gaza. Ms Livni, the head of the opposition party Kadima, had been a member of the war Cabinet during Operation Cast Lead, in which it was claimed that 1,400 Palestinian civilians were killed.

The British court issued the arrest warrant in exercise of “universal jurisdiction,” a principle in public international law that gives any state criminal jurisdiction over persons accused of international crimes.

Israel was livid. Prime Minister Benjamin Netanyahu said: “We completely reject this absurdity taking place in Britain.” The Israeli Foreign Minister summoned the British Ambassador to Israel and rebuked him on behalf of his government for the warrant.

Support the warrant

The British government was embarrassed. Prime Minister Gordon Brown personally called Ms Livni and assured her that he did not support the warrant. He promised to change the law that allowed it to happen.

This year, the British Parliament passed the Police Reform and Social Responsibility Act. It introduces a requirement that private prosecutors must obtain the consent of the director of public prosecutions before the issuing of a warrant of arrest by any court in exercise of “universal jurisdiction”.

Almost a month and a half after the Act received Royal Assent, which was given by the Queen on September 15, 2011, a similar situation played out in Kenya. High Court Judge Nicholas Randa Owano Ombija issued a provisional warrant of arrest against the President of Sudan, Hassan Omar al-Bashir, and ordered the Internal Security Minister to effect the warrant if and when the Sudanese president sets foot within the territory of the Republic of Kenya.

President Omar al-Bashir was outraged. He ordered the Kenyan Ambassador to Sudan to leave the country in 72 hours and contemporaneously ordered the Sudanese Ambassador to Kenya to return to Khartoum.

The Kenya Government, caught by surprise by the court decision, termed the court’s decision “very unhelpful” and described it as a “judgment in error”. Kenya’s Foreign Minister, Moses Wetangula, criticised the court for what he termed a “blatant display of insensitivity”. He stated that the government would appeal the decision.

Unlike the United Kingdom, which appreciated that courts are independent to make decisions based on the provisions of the law, Kenya is reacting by blaming its own Judiciary.

The UK Government, while pronouncing that it did not support the decision of the court in the Israeli matter, dealt with the issue not by castigating its Judiciary, but by amending the law to reflect the concerns of the Executive in such matters.

Mr. Justice Ombija had no choice in the matter. Kenya, by its own free will, ratified the Rome Statute on March 15, 2005. Again, by its own free will, it domesticated the statute and it became law in Kenya when the International Crimes Act was passed in 2008.

In August 2010, we promulgated a new Constitution which provides under Article 2(6) that: “any treaty or convention ratified by Kenya shall form part of the law of Kenya under the Constitution”. Section 3 of the International Crimes Act states that: “This Act shall be binding on the government”. And Section 4(1) of the Act says: “The provisions of the Rome Statute specified in subsection (2) shall have the force of law in Kenya”.

One of the provisions provided for as having the force of law in Kenya is part 9 of the Rome Statute which says in Article 86: “State parties shall, in accordance with the provisions of the statute, co-operate fully with the court in its investigations and prosecution of crimes within the jurisdiction of the court”.

What was Mr. Justice Ombija expected to do in light of these provisions of the law? He really had no choice, and the Chief Justice was correct and justified in supporting the judge against accusations by the Foreign Ministry.

This case

In any event, hadn’t the ministry anticipated that such a result could emanate from this case? Is it the Judiciary that failed Kenya’s national interests by stating the law as it is or was the ministry asleep?

It would have helped the situation a lot more if someone had asked the judge to postpone the ruling in the interests of the nation, particularly as our soldiers are in Somalia at war with Al-Shaabab. There is the real danger that Sudan, which is listed by the American government as a state sponsor of terrorism, could secretly support Al-Shaabab against us for threatening its president.

But these are issues that should have been raised with the Judiciary and a request made for postponement of the decision. As there was no urgency in the matter, I believe the judge would have been considerate. Without such a request, it is unfair to accuse the Judiciary of insensitivity to national interest. Judges are not there to run our foreign policy or pronounce our national interests. That is the work of the Executive.

In so far as the judgment on President Bashir is concerned, it is not the Judiciary that failed our national interest. It is the Executive that failed to protect it by presenting a credible case for delay to the court. But what is more disturbing is why Sudan is singling Kenya out for this diplomatic treatment. We are not the only country that has threatened to arrest President Bashir.

South Africa and Botswana governments have stated they shall arrest Mr. Bashir should he step in their countries. Brazil, Argentina, Central African Republic, France, Jordan, Libya, Malaysia and Turkey have also shown their support for the warrant.

Mr Bashir has not responded to any of these countries the way he is responding to Kenya. One would have expected his reaction to Kenya to be more considerate, knowing that this was an act of an independent judiciary. Are there other considerations informing President Bashir’s reaction? Why is the Sudanese leader acting as if he has been betrayed by Kenya? Or has someone actually betrayed him?

Paul Mwangi is an Advocate of the High Court of Kenya