BY: GEOFFREY NYAMBOGA
One doesn’t have to look very hard to see how sceptical ordinary Kenyans are about whether the International Criminal Court, ICC, is ever going to be able to prosecute the orchestrators of the post-electoral violence, which swept across the country at the end of 2007
â€œTell [ICC prosecutor Luis] Moreno-Ocampo that he should not listen to the words of high-ranking people in the government, because they will only cheat him,â€ implores one woman from Naivasha in the east of the country, who was brutally raped as she tried to flee the violence.
Just down the road, another woman, whose husband was murdered and dismembered by an unruly mob, says the same thing.
One might have expected such expressions of anxiety to deter Nairobi from any course of action that might upset the ICC or doubt its commitment to the ICC investgation.
But on Friday, to widespread international alarm, Sudan’s president Omar al-Bashir, for whom the ICC has issued an arrest warrant, turned up in the nation’s capital to witness the signing of Kenya’s new constitution.
For al-Bashir, this was a public relations coup. Back home, state media crooned that his visit to Kenya, which comes close on the heals of a separate visit to Chad, shows that there are limits to the influence of the ICC over its member states.
In Kenya, the ill-conceived visit has simply reinforced fears that the Kenyan government does not respect the jurisdiction of the international court ,UN resolutions 1593/2005 and could frustrate its investigation by the ICC.
Moreno-Ocampo formerly opened an investigation into Kenya’s post-electoral violence in May and, in deference to the wishes of the victims, promised that the investigation would be concluded before the end of the year.
Although the names of the people that the ICC is looking at is a closely-guarded secret, there has been widespread speculation that the ICC is preparing to go after powerful individuals in the government for the role that they played in the post-electoral violence.
This may explain why many ordinary Kenyans doubt the government’s genuine commitment to the investigation, fears that have only been compounded by news of al-Bashir’s visit.
As a signatory of the Rome Statute, the ICC’s founding treaty, Kenya had a clear mandate to arrest al-Bashir when he set foot in the country.
This is why the details of al-Bashir’s visit were kept secret. His name did not feature on the official list issued by the Kenyan ministry of foreign affairs of those expected to attend the promulgation of the constitution. It had been assumed that Salva Kiir, the first vice-president of Sudan and head of the south Sudanese government, would attend instead.
Al-Bashir’s visit to Kenya is a slap in the face not only for international rule of law, but also for those Kenyan people that have been crying out for a new constitution for so long.
More than two thirds of Kenyans approved the new constitution by a referendum that was held on August 4.
The new constitution replaces the one that was drawn up in 1963, when the country gained independence from Britain. Its main purpose is to decentralise power to the regions, and to create a clearer distinction of power between the country’s executive and legislative offices.
Kenyaâ€™s new constitution stipulates that general international law should be complied with, as well as any international treaties and statutes that Kenya ratifies. So al-Bashir’s visit can be interpreted as the first violation of the new constitution.
Al-Bashir’s visit to Kenya represents the second time in as many months that the Sudanese president has travelled to an ICC member state in defiance of his arrest warrant.
In July, al-Bashir travelled to Chad to hold talks with his Chadian counterpart Idriss Deby, signalling that there was a thawing of relationships between the two statesmen.
Since being indicted, Bashir has also visited Egypt and Qatar, but neither of these countries are signatories to the Rome Statute.
However, Bashir has been denied access to other countries â€“ most notably, South Africa and Uganda â€“ for fear that he would be arrested.
The African Union argues that the ICC’s arrest warrant is counter-productive in the quest for peace in Darfur, and has called on its members not to enforce the warrant.
Al-Bashir’s visits to Kenya and Chad are simply the latest development in the tug-of-war battle between the ICC and the AU.
For the Sudanese leader, they are a great triumph and an opportunity to show that there are cracks in the ICC’s much-vaunted cohesiveness.
For those victims of atrocities, who deserve to see justice done, they are a bitter insult.