Bashir to skip Uhuru swearing-in

President Al Bashir arrives for the promulgation of Kenya's new constitution at Uhuru Park, Nairobi on August 27, 2010. His visit sparked outrage among Kenyan leaders and the international community. 

 Photo/STEPHEN MUDIARI  

By BERNARD NAMUNAN

• Government spokesman Muthui Kariuki said the Sudan President has indicated that he will not attend the event despite being among the 54 Heads of State who were invited.
• The Kenya chapter of the International Commission of Jurists (ICJ Kenya) warned that the country would fail in its duties as a member State of the treaty establishing the International Criminal Court (ICC) if it allows President al Bashir, an indictee of The Hague, safe entry and exit.

Sudan President Omar al Bashir will not attend Tuesday’s inauguration of Uhuru Kenyatta as Kenya’s fourth Head of State.

This comes as a section of lawyers petitioned Attorney General Githu Muigai to arrest and hand over President al Bashir to The Hague in case he flies into the country on Tuesday.

Government spokesman Muthui Kariuki said the Sudanese President has indicated that he will not attend the event despite being among the 54 Heads of State who were invited.

“President al Bashir, like all other African Presidents, was invited. However, I can confirm that he will not be attending,” he said.

The Kenya chapter of the International Commission of Jurists (ICJ Kenya) warned that the country would fail in its duties as a member State of the treaty establishing the International Criminal Court (ICC) if it allows President al Bashir, an indictee of The Hague, safe entry and exit.

In addition to the two warrants issued by the ICC, lawyers Wilfred Nderitu and Elias Mwenda reminded Prof Muigai that the High Court issued a provisional warrant compelling the government to arrest President al Bashir any time he sets foot on Kenyan soil.

“As a State Party to the Rome Statute establishing the ICC, Kenya is under obligation to enforce the warrants by arresting and surrendering President al Bashir to the ICC if he enters Kenyan territory,” they said in their petition.

Warning of serious consequences to the country, they asked the AG to advise both incoming President Kenyatta and his predecessor Mwai Kibaki that it would be in breach of the Constitution and the Rome Statute to entertain President al Bashir at the Kasarani Stadium ceremony on Tuesday.

“We request you as the principal advisor to the Government and as a member of the Committee to the Assumption to the Office of President, to advise both the incoming and outgoing President that President al Bashir’s invitation and subsequent presence on the territory of Kenya amounts to a breach of the Constitution, the International Crimes Act, and the Rome Statute of the International Criminal Court.

"In addition, we request you to enforce the provisional warrant in keeping with the decision of the High Court to the effect that any legal person may enforce the provisional warrant,” they stated.

Mr Nderitu and Mr Mwenda petitioned the AG following reports by Sudanese newspapers stating that President al Bashir will fly into the country on Tuesday to attended the inauguration.

President al Bashir is wanted by the ICC to answer charges of war crimes committed in the Darfur region in 2003.

The Hague issued the warrants in March 2009 and July 2010 while the High Court issued the provisional warrant in November 2011.

However, the Sudan President has dismissed the warrants and declined to surrender himself to the ICC, also making him a target of Western countries if he steps into their territories.

That notwithstanding, the Kibaki administration caused a stir on August 27, 2010 when it invited President al Bashir to attend the promulgation of the new Constitution. The ICC swiftly reported Kenya to the UN Security Council.

“There is little doubt that this time round, President al Bashir’s presence in Kenya will be seen as a grave and direct affront and disrespect for both the ICC and the UN Security Council and it is not too far-fetched to expect that sanctions may be imposed on the country, with an adverse effect on the body politic,” the lawyers warned.

They argued that the readiness of President-elect Kenyatta and Deputy President-elect William Ruto to cooperate with the ICC will be determined by the decision to either host President al Bashir or block his entry.

Mr Nderitu, a former ICJ Kenya chairman, and Mr Mwenda accused the outgoing administration of breaching the Constitution and the Rome Statute.

“Whether President al Bashir enters Kenyan territory or not will therefore be a crucial test, indeed the litmus test, for the incoming administration as to its commitment to the Constitution and the rule of law.

"Already, the willingness and commitment of the outgoing administration towards cooperation with the ICC has been constantly and increasingly seriously questioned both locally and internationally, and by the court itself,” they said.

President-elect Kenyatta and Mr Ruto are facing charges of crimes against humanity at The Hague arising from the 2007/2008 post election violence. Former journalist Joshua arap Sang is also facing charges at the ICC.

The petition was copied to Director of Public Prosecutions Keriako Tobiko, Internal Security permanent secretary Mutea Iringo and the deputy Registrar of the High Court.