State broke new laws, say lawyers

By Beauttah Omanga

Lawyers said the presence of Sudanese President Omar al Bashir in Kenya was a violation of the new Constitution.

Law Society of Kenya Secretary Apollo Mboya and Lawyer James Mwamu said the Government was bound to arrest Bashir as per the Rome Statute and the new laws.

The two lawyers cited Article two of the new Constitution, which states that general rules of international law shall form part of the law of Kenya.

Article 2 (6) says that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the new Constitution.

Kenya is a signatory to the Rome Statute.

"That section alone makes Kenya answerable before any court why it violated the Rome Statute to which it is also a signatory," said Mwamu.

Senior counsel Paul Muite said Bashir’s invitation and failure by Kenyan authorities to arrest him is a violation of Article 2 of the new Constitution.

Speaking on behalf of the LSK, Mr Mboya hinted at a possibility of moving to the International Court of Justice or the local courts to seek interpretation of the matter.

"The law is clear and we strongly feel the Government goofed. It owes Kenyans an apology, but still we are contemplating seeking legal redress," said Mboya.

The lawyers also censured the police for harassing human rights activist who demonstrated in Nairobi demanding the arrest of President Bashir.

"The arrest of the protestors was illegal and they should move to court over that dehumanising incident," said Mr Mwamu.

He said under the new laws, protests are allowed provided they are not a threat to security.