A triumphant day meant to mark Kenya’s “second birth” has been tarnished after its government was reported to the UN Security Council for hosting and refusing to arrest Sudan’s fugitive president, Omar al-Bashir, in defiance of its legal obligations.
Bashir, who is accused by the international criminal court (ICC) of genocide and war crimes allegedly committed in Darfur, was a guest at the signing ceremony for a historic new Constitution on Friday. As a party to the court, Kenya was legally obliged to arrest al-Bashir. The ICC has no police force and relies on member states to enforce its warrants.
Foreign Minister Moses Wetangula said it had “no apologies to make about anybody we invited to this function.
“He [al-Bashir] was here today because we invited all neighbours and he is a neighbour,” said Wetangula.
In a statement, judges in the Hague said they were formally reporting Kenya’s non-compliance to the UN Security Council and other ICC member states “in order for them to take any measure they may deem appropriate”.
The court issued an arrest warrant for al-Bashir in March 2009, and since then he has only once risked travelling to a member state, visiting Chad earlier this year.
Kenya’s stance was strongly criticised by local and foreign human rights groups, and raises serious questions over the government’s commitment to cooperate with the ICC in connection with its own case. Within the next few months the court is expected to announce charges of crimes against humanity against several senior Kenyan politicians accused of fomenting ethnic violence after the disputed 2007 presidential election.
With al-Bashir looking on, tens of thousands of Kenyans braved the cold and rain to celebrate the promulgation of the new Constitution on what the president, Mwai Kibaki, called “the most important day in the history of our nation since independence”.
The legislation, which replaces colonial-era laws, curbs the vast powers of the president and senior politicians that have enabled decades of impunity for the ruling elite and encouraged a ruinous system of ethnic patronage. The new Constitution also provides for devolved power to often-marginalised regions, requires sweeping judicial and land reforms, and improves civil rights and women’s representation.
Despite an energetic campaign by the church and some politicians to reject the laws, Kenyans overwhelmingly approved the Constitution in a national referendum this month. The vote for reform was peaceful and well-organised, a marked contrast to the 2007 presidential election which plunged the country into chaos.
Passing a new Constitution was a key element in the power-sharing deal to end the post-election chaos, although efforts by local reformers to replace the colonial-era laws go back more than 20 years. Kibaki, who is trying to rescue his legacy after his dubious election win, and the prime minister, Raila Odinga — his 2007 presidential foe and probable successor — both campaigned strongly for the yes vote. They, together with all of Kenya’s MPs, were freshly sworn in on Friday.
Full implementation of the Constitution is expected to take several years, with Parliament required to pass dozens of laws. There will be hiccups along the way, as the political class is notoriously self-serving and those who campaigned against it continue to demand concessions. The church wants to tighten the provision on abortion, which is outlawed in the new legislation except where the mother’s health is in danger.
Land is the other main issue of contention. In Rift Valley province, the only region to vote no in the referendum, senior politicians, including the former president Daniel Arap Moi, have whipped up fears that the land reform programme will see poor people lose title deeds. Proponents of land reform say the main people under threat are politicians and their cronies who have been illegally allocated vast tracts of land since independence in 1963. – guardian.co.uk