Friday, June 8, 2012



By Jerry Okungu
Nairobi Kenya
June 6, 2012

Whenever there is an AU summit in the offing, the issue of Omar El Bashir always crops up.

Since his indictment by the ICC at The Hague, the Sudanese warlord has never known peace. His high profile lobbying to get the AU member states to dictate to the ICC its relationship with the international court doesn’t seem to be working.

The reason the AU can make as much noise as possible without the court taking such ranting seriously is because in law, the ICC has no relationship with the AU. The African body is not a signatory to the Rome statutes. Individual African states are.

Despite the saga of the Omar Bashir indictment occupying the AU agenda since 2009; it has not stopped a Kenyan court ordering the Attorney General to arrest him should he set foot on Kenyan soil.

The ruling that made Bashir rave and rant against Kenya for weeks early this year is still in force. No higher court has overturned Justice Ombija’s ruling to date. And Kenya’s Chief Justice and President of the Supreme Court seems to have thrown his weight behind his High Court judge.

Now, as the African heads of state prepare to descend on Blantyre in a few week’s time, Madam President Banda has been categorical that Bashir should not even think of attending the AU meeting in her country. If he dares, she will order his arrest.

Soon after President Banda’s salvo, the outgoing ICC Chief Prosecutor, Moreno Ocampo has added his voice to the ongoing saga. He has advised the rich countries of the West to start starving those African countries that will not honor the ICC obligation and arrest Bashir. They should no longer be recipients of donor funds.

The relationship between the AU and the ICC will continue to remain sour in the foreseeable future.

It would appear like the continental body is not the only organization in Africa to have issues with the International Criminal Court. A few weeks ago, at meeting in Nairobi, the outgoing EALA members hurriedly passed a motion to request the EAC summit to turn the regional court into a criminal court then request for the transfer of the four accused Kenyans to Arusha. That again is yet to be realized even as the ICC is set to open preliminary hearings of the Ocampo Four early next week.

The reason Bashir has managed to travel selectively since his indictment is because he is aware that any country especially in Europe can arrest him and either try him in that country or take him to court. It is the reason he has never visited any European country or North America since his indictment. The question to ask is this: for how long can Sudan afford a fugitive president that is shunned by other heads of state across the globe?

The bad news for Bashir is that evading the arrest and trial will not make the problem go away. That warrant of arrest will be valid long after he retires from public life. And looking at the way the law has dealt with Pinochet of Argentina, Mubarak of Egypt and Charles Taylor of Liberia, the Sudanese strong man does not seem to have an escape route. One way or another, the long arm of the law will catch up with him.

Two of the Kenyan candidates for The Hague are hell bent on running for president in the next few months. What they hope to achieve with this misguided bravado is that once either of them is elected president then they can choose to defy the ICC the way Bashir has done. They then can take refuge in the AU as they negotiate with the ICC to transfer their cases locally.

As for running for president, they have a new hurdle in the form of Kenya’s Chief Justice. The former political activist is not mincing his words. He is not in the mood to see people of questionable character get elected to any public office in Kenya under his watch.

He has categorically declared that he will effectively use Chapter Six of the New Constitution to read the riot act for those types of politicians in Kenya. If he carries his threat, there will be few trees left standing in the forest of Kenyan politics.

If indeed President Banda also carries out her threat against Bashir, will Bashir’s bosom friends in the AU take it kindly? Will they boycott the Blantyre summit in solidarity with the Sudanese warlord? Will Bashir marshal enough numbers to warrant a lack of quorum at the summit?

Knowing African leaders and their inability to stick with their colleagues, one can almost foresee Bashir being left alone at the last minute. Verbal support he will get even in his absence at the summit. What he will surely not marshal are enough numbers to cause the Blantyre meeting to flop. It is the nature of our politics in this continent.