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An ironic invitation – Al-Bashir celebrates Kenya’s new constitution…in Kenya

By 27 August 2010September 1st, 2023International Justice, International Justice War Crimes4 min read

The world was caught somewhat off guard this morning when it learnt that Sudanese president, Omar al-Bashir, packed his bags and headed to Kenya to attend the promulgation of its new constitution, at Kenya’s invitation. There are a number of problems with al-Bashir’s little weekend getaway. I’ll start with the obvious. The International Criminal Court (ICC) has issued arrest warrants for al-Bashir, he has been indicted for war crimes, crimes against humanity and recently genocide.

It is reported that 350 000 people have died at the hands of al- Bashir (although the Sudanese government adopts a more conservative estimate of 10 000). Kenya, a signatory to the Rome Statue (the treaty establishing the ICC) has joined the rest of world in committing itself to the fight against impunity for the gross violations of human rights and has pledged its support and cooperation to the ICC and this includes assisting the Court in the execution of its arrest warrants. In an ideal world, one free of blind continental camaraderie, Kenyan authorities would have arrested al-Bashir and pledged its full cooperation to the ICC. Instead, Kenya effectively snuck him in as the mystery guest. Unsurprisingly the Kenyan authorities have justified their actions saying that it is not appropriate to arrest and embarass an invited guest, citing such conduct as not being African. Such a response may be more suited to the rowdy neighbour that invites himself to your dinner party but not a suspected international criminal at a nation’s celebration of its new constitution.

There is an inherent sense of irony in this situation. Al-Bashir represents everything a constitution should seek to prevent. He is accused of crimes that are the most egregious violations of human rights but celebrates the sanctity of human rights and democracy with Kenya and its people. The African Union’s call to its members not to cooperate with the ICC seems to be working, and al-Bashir’s Kenya visit will do nothing to improve the already strained relationship that exists between the ICC and the AU. Unfortunately, at the end of the day Kenya comes off worst. In what should have gone down in the history books as a victory for democracy in Kenya, it will instead be overshadowed by Kenya’s flagrant disregard for its international obligations, adherence to which is required by the Constitution.

Follow this link to find out more:’s%20visit%20to%20Kenya%20stirs%20anger

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20 OCTOBER, 2010 AT 1:22 AM 
Thank you for your very interesting article. I agree with most of your views about Al Bashir’s visit to Kenya and I am also of the view that he should have his day at the ICC. However, I think that the views expressed in relation to Kenya’s failure to arrest Al Bashir ignores the issues discussed below.
In my view, it seems like Al Bashir enjoys immunity as a sitting Head of State which includes immunity from arrest by foreign countries.The ICJ in DRC v. Belgium ruled that”…Belgium failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister of Foreign Affairs of the DRC enjoyed under international law”. It follows that Kenya has two conflicting obligations. Firstly, to fulfil her obligations (arrest Al Bashir) as a party to the ICC and secondly to accord diplomatic immunity to Al Bashir as a Head of state.
The ICC also seems to have disregarded the provisions of article 98 of the Rome State which inter alia prevent the ICC from requesting a State to act inconsistently with its obligations under international law agreements…In my view, all referrals by the UN Security Council are too political and unenforceable. Unless these issues are addressed by the international community Al Bashir will remain a free man. I look forwad to hearing from you.
 Thank you.

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