A detailed analysis of the recent Kenyan High Court ruling that has issued an arrest warrant against the President of Sudan.

Fiat justitia ruat caelum. This centuries-old legal maxim, “let justice be done though the heavens fall,” roared to life recently.

Justice Nicholas Ombija of the High Court of Kenya has entered the history books. His ruling that Sudan’s President, Omar Ahmad Hassan Al-Bashir, should be arrested the next time he sets foot in Kenya, is revolutionary—a Kenyan and continental first.

No African judiciary ever has issued a warrant of arrest against another country’s sitting head of state, let alone for international war crimes, genocide, or crimes against humanity. The Kenyan ruling is audacious and could signal that its previously maligned judiciary is on the mend.

Every country’s judiciary has a watershed moment. In the US, the Supreme Court’s judgment in Marbury v. Madison at the turn of the 19th Century has been immortalized as the decision that affirmed the US judiciary’s independence and its role as an equal government arm ensuring legal checks and balances against excesses of the executive and legislative branches. For Kenya, Justice Ombija’s ruling on the arrest of President al-Bashir could just be that bellwether case heralding a reformed judiciary intent on making a clean break from its tainted past.

Unbeknownst to many people, particularly Kenyans fixated on the Kenyan government’s aggressive condemnation of the ruling and the diplomatic spat between the country and Sudan, the International Criminal Court (ICC) passed a ruling against Malawi last week that appears to have affirmed the Kenyan High Court’s decision. Also telling is the fact that last Tuesday, the Kenyan Court of Appeal rejected an application by the Kenyan government for stay of the High Court orders pending full hearing of the government’s appeal.

The Kenyan government continues to condemn the decision strongly, belittling its rationale and arguing that it is unenforceable. Kenya’s newly appointed Chief Justice Willy Mutunga has reacted to the government’s censure by stating that the judiciary was a separate arm of government, and that it would not brook interference from the executive. This public display of solidarity by the chief justice gives lawyers, judges, and the Kenyan public the courage to uphold the country’s new constitution rather than undermine it as was commonplace in the past.

Since the groundbreaking decision, Sudan has been in a bullish mood. It initially threatened to expel Kenya’s ambassador to Sudan and recall its own ambassador from Nairobi. After a rapid-fire diplomatic charm-offensive by Kenya’s minister for foreign affairs, Moses Wetangula, who went over to Khartoum to assuage al-Bashir in person, Sudan gave Kenya two weeks’ notice within which time it expected Kenya to reverse the decision lest it take drastic retaliatory action. Its threats, which have been attacked in the Kenyan press, include expelling Kenya’s ambassador, instituting a no-fly zone over Sudan’s airspace for planes flying to and from Kenya, the expulsion of Kenya’s contingent police in Darfur working under the auspices of the African Union/United Nations Hybrid Operation in Darfur (UNAMID), and kicking out 1,500 Kenyans, including students. If Sudan continues to flex its muscles there might be negative economic consequences for Kenya as well, considering Sudan is a major importer of Kenyan tea and the balance of trade between the two countries is in Kenya’s favor.

Although Sudan has since toned down on the rhetoric, the political fallout from its macho behavior could negatively affect Kenya’s war against the Al-Qaeda leaning Al Shabaab terrorists in Somalia, as Kenya might lose one of its Islamic allies. Already, Kenya is in a diplomatic spat with Eritrea that has spilled over into the corridors of the United Nations. Kenya could do without another inter-state embroilment.

Regionally, the dispute with Sudan could also have a destabilizing effect on the operations of the Intergovernmental Authority on Development (IGAD). Kenya currently chairs the Comprehensive Peace Agreement implementation committee of IGAD. Before Ombija’s decision, IGAD was planning to hold its meeting in Nairobi; now the meeting appears to have been cancelled. With intermittent conflict around the border of Sudan and Southern Sudan, tensions between Kenya and Sudan could hamper efforts to resolve disputes between warring communities of the two Sudan states. While all these potential points of interstate friction make Kenya’s Ministry of Foreign Affairs nervous, a Kenyan columnist noted that al-Bashir did not have to visit Nairobi. However, with two Kenya cases involving six high-level officials and individuals awaiting news from the ICC’s Pre-Trial Chamber about whether the charges against the suspects will be confirmed or not, the Kenya government must also be thinking about the negative consequences that the warrants against al-Bashir might have on the Kenyan suspects if the ICC takes them to trial.

Notwithstanding the potential fallout between the two countries, the key issue of concern should be the legal soundness of Kenya’s decision to issue a warrant of arrest against President al-Bashir.

The background to the Kenyan decision is as follows. On March 4, 2009 and July 12, 2010, the ICC issued warrants for the arrest and surrender of President al-Bashir to stand trial and bear individual criminal responsibility for crimes against humanity, war crimes, and genocide, following investigations into the Darfur conflict by the ICC’s chief prosecutor, Luis Moreno Ocampo, which found him potentially culpable. The warrants against al-Bashir were sent to all member states of the Rome Statute—the underlying legal framework upon which the ICC was established. Kenya is a party to the Rome Statute having signed it on August 11, 2005, and ratified it on March 15, 2005.

Following a failure of the Kenyan government to arrest President al-Bashir when he visited the country for the promulgation ceremony of Kenya’s new constitution on August 27, 2010, the Kenya Chapter of the International Commission of Jurists filed an application on November 18, 2010 through its Executive Director Mr. George Kegoro for a provisional arrest warrant to be issued against al-Bashir the next time he sets foot in the country.

In its decision, Kenya’s High Court arrived at the same conclusion as the ICC in the Malawi matter, but failed to touch on key tensions in international law, so as to make the rationale for his decision unassailable. Here I distil the two most important big picture pillar questions on which Kenya’s High Court decision stood, then identify the issues it should have addressed that the ICC exhaustively brought to rest.

The first question it dealt with was whether the matter was justiciable and whether Kenyan courts have jurisdiction to decide the case. In other words, where does Kenya find the right to make a legal determination on whether a sitting head of state of another sovereign nation can be or should be arrested in Kenya? The simple answer is the new Kenyan constitution. Article 2(6) of Kenya’s new constitution states that any international treaty Kenya ratifies becomes binding law in Kenya, without the need for further legislation to domesticate it.

However, considering the arrest warrants for President al-Bashir by the ICC were issued before the promulgation of Kenya’s new constitution, the High Court recognized that Kenya’s International Crimes Act of 2008 was a domestication of the Rome Statute, and in any event the transitional clause of the new constitution—clause 7(1) of the sixth schedule—acknowledges the continual application of all previous legislation of the country, subject only to qualifications to bring such laws in conformity with the new constitution.

The second pillar issue is: On what grounds, if any, can a domestic legal regime like Kenya issue an arrest warrant against a sitting head of state of another country? The answer features a tension in international law. Essentially, the answer lies in the embroidery of the conceptions of state sovereignty and jus cogen norms in international law. The High Court argued, and correctly so, that international law is part and parcel of Kenya’s legal system, at least to the extent the country is bound by customary international law as well as treaties, covenants, and instruments it has expressly ratified.

International law is founded on the Westphalian notion of the state. This came about following the Peace of Westphalia of 1648, where the principle catalyst for state interaction and comity—state sovereignty—was expressly spelt out as the non-interference in each others’ affairs and the recognition of the sovereign equality of states. Without this fundamental accession, there would be no such thing as international law.

Thus, international law gives credence to the philosophy of states respecting government officials from other states as representatives of their sovereigns. This immunity is recognized as a principle of customary international law, and is nonetheless manifest in treaties such as the Vienna Convention on Diplomatic Relations. In the High Court case, the Kenyan government’s core case rested on the principle of immunity. Although the High Court did not delve into the granularity, immunity comes in two forms: functional immunity and personal immunity. Functional immunity protects government officials and heads of state from prosecution for acts committed while serving in their official capacity. It clothes the recipient even after they have left office so they therefore cannot be prosecuted for ancillary acts committed in office. Personal immunity protects government officials and heads of state from prosecution for actions not committed in their official capacity, but nonetheless perpetrated while in office. Personal immunity can be lifted upon one leaving office.

Despite the fact that the principle of immunity is recognized as a fundamental tenet of customary international law, international law recognizes certain norms as being inviolable. These are christened jus cogen norms, and are defined as peremptory norms to which no derogation of any kind is permitted. Breach of jus cogens norms does not only constitute delicti jus gentium (international crimes), but also constitutes the highest level of crimes against mankind. These highest level of crimes include genocide, crimes against humanity and war crimes. Hence, no matter where jus cogens crimes are committed, the international community in its entirety, scourged by the effects of these crimes, becomes the victim. The renowned international law scholar Mahmoud Cherif Bassiouni, considered by many to be the “Father of International Criminal Law,” describes jus cogens as the “compelling law that as such holds the highest hierarchical position among all other norms and principles.”

What the foregoing means is that the internationally recognized immunity of government officials and heads of state cannot stand in the way of prosecution from international crimes. Under the universality principle of international law, on which the High Court ruling was heavily based, any State can arrest and prosecute perpetrators of international crimes irrespective of rank or status. The ICC in the Malawi decision supports the position that rank or status should not stand in the way of prosecutions for international crimes by citing a litany of authoritative international tribunals and charters that vindicate this argument. These include the writings of the First World War Commission on the Responsibility of the Authors of the War and Enforcement of Penalties, the Charters of the International Military Tribunal on Nuremberg and the Far East, the International Tribunal for the Former Yugoslavia Statute, the International Tribunal for Rwanda Statute, and the Draft Code of Crimes against the Peace and Security of Mankind, among others.

However, there are two fundamental nuances the High Court failed to grapple with which is dealt with in the ICC’s decision. The first is the fact that although the universality principle allows states to prosecute perpetrators of international crimes, current precedents create an exception. The International Court of Justice (ICJ) in a case between Belgium and the Democratic Republic of Congo (the Arrest Warrant case) where Belgium purported to issue an arrest warrant against the Congolese Minister of Foreign Affairs, ruled that the customary law immunity of incumbent foreign government officials including heads of state cannot be lifted so as to prosecute such officials before a national court of another country, on the basis of their having committed international crimes. The rationale for the decision was that immunity is not accorded to government officials for their own individual benefit, but rather to ensure the effective performance of their duties on behalf of their respective nations. The ICJ however ruled, as affirmed by the ICC, that the immunity of such incumbent officials cannot stand in the way of prosecution before an international tribunal.

With regards to national courts, the implication appears to be that incumbent officials can be arrested and prosecuted upon leaving office. In the Pinochet case before the British House of Lords, the court held that the former Chilean dictator General Pinochet could be extradited to face charges for acts of torture committed during his tenure as head of state. It further held that Pinochet’s alleged actions of torture could not be clothed by functional immunity on the basis of his status then as a head of state, reason being acts of torture did not fall under the purview of the duties of a head of state.

Perhaps due to a non-alignment in the Kenyan International Crimes Act of 2008, which incorporates the Rome Statute, the High Court of Kenya was also silent on a most relevant and apparent discordance in the Rome Statute. This is in respect of Articles 27 and 98 of the Rome Statute. Article 27(1) deals with immunity in the context of member states to the Rome Statute, and denounces any possibility of the defense to prosecution before the ICC by member states, on grounds of official or head of state immunity. Article 98 deals with exemptions to member states with respect to requests made by the ICC, on account of relations with non-member states. It provides that member parties of the Rome Statute are not obliged to surrender persons from non-member states, if to do so would breach the member parties’ international law obligations in respect of the said non-states.

Sudan is not a member of the Rome Statute, and therefore Article 98 is certainly a provision that deserves sharp focus. The ICC irons out this wrinkle in its Malawi ruling by arguing that customary international law creates an exception that overrides the obligations of member states to non-member states. Therefore, head of state immunity cannot stand in the way of an international tribunal seeking the arrest of a head of state for commission of international crimes.

The African Union has consistently tried to thwart the ICC’s momentum in dealing with President al-Bashir. In 2009 a resolution by the Assembly of Heads of State, its highest body, attempted to preempt the ICC’s actions by directing all AU member states to desist from co-operating with the ICC in respect of effecting the arrest warrant against President al-Bashir. Needless to say both Kenya and Malawi relied on this resolution in their defense. However, this resolution violates the Rome Statute signed by numerous African states including Kenya and Malawi, and flies in the face of the highest tenets of international law, and, to the extent of its inconsistency, must crumble under the quicksand of complete nullity. Thus the ICC dismissed the legality of the resolution.

The African Union should know that despite the stigma of the first sitting head of state to be arrested and tried for international crimes falling on Slobodan Milosevic, his arrest was no one off, and the legal rationale for his indictment substantively carries over to al-Bashir’s case.

In light of existing international law, the Kenyan government’s appeal against the High Court’s ruling is unlikely to succeed on its merits. If the appeal proves unsuccessful, the court’s decision targeting President al-Bashir personally, could augur badly for future relations with Sudan.

Be that as it may, the ghosts of the atrocities committed in Darfur remain an indelible scar on the conscience of humanity. With almost 500,000 lives lost thus far, it is one atrocity where Kenya and all other nations are mutually and coextensively duty-bound to act for humanity’s sake. The opening of the High Court ruling best describes Kenya’s place in the family of nations:

“It is axiomatic that the Kenyan State has no autonomous existence outside the framework of the community of nations, and that on this account, its regime of law and Constitutional order inter-face with the other states under the auspices of international law.”

Even if the Kenyan High Court ruling leads to breakdown in relations between Kenya and Sudan, Kenya’s judiciary has stood tall on the right side of history.

The court has done its duty in accordance with the laws of Kenya and in the interest of humanity. Let the chips fall where they may.

The author acknowledges the critique and contribution of Susanne Mueller to the writing of the article.

The views expressed in this article are the author's own and do not necessarily reflect Fair Observer’s editorial policy.