Why the buck stops with Kibaki

By Peter Opiyo and David Ochami

Disagreement has rocked the Grand Coalition Cabinet even before the honeymoon of the new Constitution ends.

The international community is piling pressure on the Government and President Kibaki continues to take the flak over the hosting of an indicted head of state, for which the International Criminal Court has issued an arrest warrant.

Whether by design or accident, the focus on Sudan’s President Omar al Bashir is drawing attention away from Kenya’s defining moment last Friday. President Omar al Bashir is wanted by the ICC to face charges of alleged serious human rights abuses in Darfur.

Questions were being asked why President Kibaki not only invited Bashir for his big party, but also gave him a safe airway, and kept secret his invitation and travel plans. Bashir is the first serving head of state to be indicted by the ICC. Attention also shifted to Kenya’s commitment to the ICC process, with former UN Secretary General Dr Kofi Annan asking the Government to come clean on the upcoming Hague investigations against prominent Kenyans who allegedly masterminded and funded the 2008 post-election violence.

But even as Annan, who was at Friday’s fete, said he was stunned to see Bashir at Uhuru Park, Prime Minister Raila Odinga also disowned his presence in Kenya, saying in African traditions you do not invite a ‘witch’ who is your neighbour to your bash.

But signs the new storm is not about to calm came from Lands Minister James Orengo who announced the Cabinet Committee on issues related to international security would push for action against the leaders behind the fiasco.

Orengo who is a member of the committee, said Government officials who invited Bashir must take responsibility.

Fugitive president

"The committee chaired by Internal minister (Prof George) Saitoti will meet to investigate the issue and give way forward," he said.

ICC Chief Prosecutor Mr Luis Moreno Ocampo accused Bashir of secretly flying into Kenya. "As soon as the judges informed the Security Council, he left Kenya. So he is a fugitive president," said Ocampo.

Moreno-Ocampo told Reuters he hoped Bashir would travel further afield so the arrest warrant against him could be implemented "in the air" — presumably meaning a diversion of his plane. "President Bashir is fighting for his freedom using different tactics," Ocampo said in London.

Those tactics include "abusing African hospitality" by going to neighbouring countries, "threatening Western countries with using the South Sudan and offering business as carrots to French, American and British companies," he said.

He urged UN Security Council members to implement a strategy to counter Bashir’s tactics, but was silent on Kenya’s part. On Kenya Ocampo said: "I promised to present two cases this year, and I will do it."

Annan, who was instrumental in fast tracking the Constitution making process in Kenya, by ensuring the full implementation of Agenda 4 said Kenya, which in 2005 signed the Roman Statute, has a clear obligation to cooperate with ICC. He pointed out the fact that Kenya is also cooperating with ICC on investigations relating to 2007-2008 election violence.

"In the circumstances, the Government should clarify its position and reaffirm its cooperation with and commitment to the ICC," said Annan. According to ICC protocol Kenya should have assisted in apprehending Bashir.

Kenyan leaders also condemned those who secretly invited Bashir and sneaked him into the country through Wilson Airport after making the area a no-fly zone.

Sources told The Standard the Office of the President, through the Ministry of Foreign Affairs, invited Bashir, and very few senior officers in Government were privy to his programme.

State House remained tightlipped about the storm kicked off by Bashir, as Raila argued this has tainted Kenya’s image and his office was not in the picture.

Curiously, the Government chose to respond through Foreign Affairs Assistant Minister Richard Onyonka, despite the enormity of the problem it is facing.

"It is a matter of deep concern that some of the countries making regrettable remarks about Kenya are members of the UN Security Council that have not committed themselves to the Rome Statute," said Onyonka

Fugitive president

He claimed Western countries maintained high level contacts with Sudan, and the UN was prominently represented at the recent inauguration of Sudanese leaders.

He said African Union member states had agreed not to co-operate with ICC to arrest and surrender Bashir, since the UN Security Council had failed to act on its request to suspend accusations against him. But Raila, who shares power with President Kibaki, chose to differ with the position of the Ministry.

He said: "We must foster good neighbourliness lakini kama kuna mchawi haumwaliki kwa karamu (but you are not bound to invite a witch to your ceremony for the mere fact he is your neighbour)."

"We have no problem with Sudan as a neighbour, but we are a signatory to the Rome Statute, we are going to look very bad in the eyes of the international community if we invited somebody indicted to spoil the party for us. It is wrong and it was wrong. We must stand by laws signed by government," said Raila at PCEA Church in Kinoo. He argued it was wrong to purport to adhere to AU resolutions yet government’s have in the past gone against the body’s charter.

The storm raged as an advocate of the High Court who worked for the ICC in the Sierra Leone tribunal, Ms Betty Murungi, warned the Rome Statute has no provision for reservation, meaning that it binds all countries that ratify the law. The signing, she explained, meant Kenya was domesticating the Rome statute.

"We were in breach of our own laws under the International Crimes Act (2008) which domesticated the Rome Statute," said Murungi.

The Act covers a chapter on how Kenya is supposed to cooperate with ICC in executing surrender warrants.

"It is astonishing and it also reflects badly on the country, when we have just gone through a historic transformation of our laws, and we do not want Kenya to become a pariah State," argued Murungi.

Vice-President Kalonzo Musyoka, Wetang’ula and Tourism Minister Najib Balala defended Bashir visit.

— Additional reporting by Beauttah Omanga