Al-Bashir visit raises doubts over Kenya's ICC commitment (Feature)

By Michael Logan Aug 27, 2010, 13:08 GMT

Nairobi - Sudanese President Omar al-Bashir's visit to Kenya on Friday has raised questions over the East African nation's commitment to extraditing its own nationals to the International Criminal Court (ICC) in The Hague.

Al-Bashir, wanted by the ICC on charges of war crimes and genocide in Sudan's restive Darfur province, attended a ceremony celebrating the signing of Kenya's new constitution into law.

His presence alongside other African leaders overshadowed the event, prompting a chorus of protests from human rights groups.

Kenya is a party to the Rome Statute, which set up the court and requires the East African nation to arrest him. The court has no police force and relies on its member states to arrest suspects.

The East African nation has also promised to cooperate with the ICC's investigations into the post-election violence that followed disputed presidential elections in December 2007.

Over 1,300 people died and hundreds of thousands were displaced during tribal clashes sparked by opposition claims the election was rigged in favour of President Mwai Kibaki.

ICC Chief Prosecutor Luis Moreno-Ocampo has said he expects to issue arrest warrants against two or three prominent Kenyans - most likely including government ministers - for their role in the violence.

The International Federation for Human Rights (FIDH) called on Kenya to arrest al-Bashir, saying it would prove the nation's commitment to the court.

'Kenya, which ratified the Statute of the ICC and has publicly pledged to cooperate with the Court, is obliged to arrest and transfer him to The Hague,' said Souhayr Belhassen, President of the FIDH.

'This arrest would also be a strong signal from the Kenyan authorities of their commitment to deliver justice to victims of the most serious crimes, as the ICC is also conducting an investigation into crimes committed in Kenya.'

However, Kenya's immediate response was to say it would be impolite to arrest the Sudanese leader.

'He is here in response to our invitation to all our neighbours and the sub-region to attend this historic moment for Kenya,' Foreign Minister Moses Wetangula told the Daily Nation. 'You do not harm or embarrass your guest. That is not African.'

Given the timing of the visit, the embarrassment is instead likely to fall on Kenya. The new constitution, along with the ICC prosecutions, are part of a process considered crucial to avoid a repeat of the post-election violence.

On a day when Kenya should have been gaining plaudits for the constitution, passed by a peaceful referendum in early August, it is instead facing doubts over whether it will stick to its promise of delivering up suspects to The Hague.

'If the political will is not strong enough to prevent them extending an invitation to al-Bashir to come to Kenya, we have to question if it will be strong enough to extradite suspects from Kenya,' Alison Smith, legal counsel with campaigning group No Peace Without Justice (NPWJ), told the German Press Agency dpa.

Kenya has already demonstrated a lack of desire to try those considered most responsible for the violence.

The ICC became involved when the government failed to set up local tribunals to deal with the post-election violence, and western diplomats say there have been machinations behind the scenes to sabotage the ICC investigation.

However, some analysts believe al-Bashir's visit will have no bearing on the ICC's Kenya probe.

The African Union is opposed to the court, which it believes is unfairly targeting the continent's leaders. Nairobi-based analyst Robert Shaw believes Kenya is therefore in a difficult position.

'I think Kenya was put into a rather embarrassing diplomatic, African, ICC triangle,' Shaw told dpa. 'I don't think it is in any way indicative of what is going to happen in the future.'

'I think we are locked enough into the system and the process that when the ICC does act here, Kenya will comply.'