Al Bashir's Presence in Kenya Did Not Violate the New Constitution

This article appeared as an op ed in The Star newspaper (Nairobi) on 4th September 2010.

The saga relating to the presence of President Al Bashir in Kenya continues. Some have argued that Kenya violated its obligations relating to the International Criminal Court (ICC) by inviting an individual against whom an ICC arrest warrant exists.

Lately, it has also been argued that the government breached the new constitution by hosting Al Bashir. One writer, Howard Varney notes that Kenya ‘despoiled the new constitution’ by this act.

In a previous piece, I have addressed the first argument, noting that the hosting of Al Bashir did not violate the Rome Statute of the ICC. Today, I consider why this act in no way violates the new constitution. I will refer to contrary arguments made by others on this issue. However, I will not address any political underpinnings of the invitation or its alleged links to the ICC investigation in Kenya. The argument is that whatever its motives, the act stands on sound legal legs.

A number of Kenyan lawyers and Howard Varney have suggested that since Kenya ratified the Rome Statute, hosting Al Bashir violates article 2 of the New Constitution. The relevant parts, articles 2(5) and 2(6) respectively read as follows:

The general rules of international law shall form part of the law of Kenya.

Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this constitution.

This issue cannot be understood by resorting to general arguments such as those above. There is a specific issue that these commentators deliberately ignore or shy away from discussing: the immunity of a serving head of state from the jurisdiction of foreign nations, and by extension the ICC. General arguments about article 2 do not shed any light on the key issue.

Before addressing what international law and the Rome Statute in particular says about immunity of heads of state, it is useful to consider which part of international law actually forms part of Kenyan law as per article 2 above.

General rules of international law in article 2(5) above refers to customary rules of international law. These are rules over which there is widespread, if not total agreement by states. Examples include the prohibition of genocide, war crimes and crimes against humanity; the equality of states; immunity of heads of states and foreign ministers when travelling abroad; and the prohibition against use of force.
These customary rules automatically form part of Kenyan law, no matter their source. Once Kenya ratifies an international agreement ie agrees to be bound by it, only the customary rules in that treaty apply immediately. Customary rules in any case apply in the absence of any act of ratification.

All other rules of international law – that are not customary in character – only form part of Kenyan law when domesticated ie, applied through an Act of Parliament.
Informed by our own dualist tradition (see relevant provisions of new constitution regarding law making authority) and comparative experience, there is no other way of understanding article 2(6) of the New Constitution. It cannot therefore be suggested - as some have attempted to do - that the Rome Statute as a whole forms part of Kenyan law because we ratified it. It forms part of our law because Parliament passed the International Crimes Act in order to domesticate it.

Back to the issue that previous commentators have avoided, but which perhaps is the only relevant issue in the Al Bashir saga: immunity of heads of states. Article 27 of the Rome Statute says that the official position of an individual does not prevent the ICC from exercising jurisdiction. This means anyone can be investigated, indicted and an arrest warrant issued. There international lawyers who take a stricter view, suggesting that serving heads of states and foreign ministers are excluded and that any act the mere act of attempting to charge would be illegal. This links to rules in the Rome Statute that appear to preserve customary law immunities of senior state officials.

Article 98 (1), which I have commented on before (see previous blog posting), is easily the ‘elephant in the Rome Statute’ that many prefer to treat as a black hole. Fervently pro-ICC people hate it, and prefer to ignore it in their analysis. It is fair to suggest that this approach only renders their understanding of the Statute partial, subjective or downright dishonest.

Article 98(1) says that the ICC may not proceed with a request for surrender or assistance which would require the requested state to violate its obligations under international law with respect to the state or diplomatic immunity of a person ….

I want to state emphatically that 98(1) codifies one of the oldest rules of customary international law, and which is rightly one of the pillars of the international legal order as we know it. It affirms the equality of states, and oils inter-state relations by protecting presidents and senior envoys from small and weak nations from willy nilly arrests abroad.

The ICC has changed some things, but this is one rule it cannot change, at least not in its entirity. And that is why it is preserved in article 98(1) in a treaty that declares war on impunity. Both article 27 and 98(1) form part of Kenyan law automatically but also through the International Crimes Act passed by Parliament in 2008. So when people say Kenya violated its international law obligations, and its New Constitution, they must tell us which obligation.

The truth is: that Kenya finds itself, like other nations, in a position in which it can choose to arrest a head of state in compliance with a weaker and definitely younger rule of customary international law (art 27 was introduced by the Rwanda and Yugoslavia tribunals in 1994) or host him at will, in compliance with a rule older than the modern state founded in 1648.

As I have argued before, Al Bashir can only be arrested once states remove the recognition he enjoys as the President of Sudan or if his immunity is removed: after he leaves office either by losing an election or removal by the Sudanese Parliament. The supposedly all powerful UN Security Council cannot legally do this.