(1) In the course of yesterday, 28th November 2011, the Ministry’s attention was drawn to media reports about a ruling by the High Court of Kenya directing that President Omar El Bashir should be arrested by the relevant institutions of Government any time he sets foot on Kenyan soil.
The Ministry’s attempts to obtain a copy of the ruling have not been successful thus far.
(2) Following this ruling by the High Court of Kenya, Kenya’s Ambassador to Sudan, Amb. Robert Mutua Ngesu, was summoned yesterday evening to the Foreign Office in Khartoum and requested to leave the country within 72 hours. Kenya and Sudan enjoy excellent bilateral relations. Kenya does not, therefore, contemplate any retaliatory action. Indeed, it is Kenya’s belief that such rushed action, while regrettable, may have been prompted by the Sudanese Government’s displeasure with the High Court ruling.
(3) The Government of Kenya fully understands the anxiety created by the High Court ruling within the Republic of Sudan as it is a direct affront on the cardinal principle of sovereign immunity, as well as the collective African Union position on this matter.
(4) It is settled law, both treaty and custom, as well as established and uncontested state practice that serving Heads of State are immune from criminal prosecution by any State. This immunity for serving heads of state is a right which accrues, not to the individual, but to his or her state. There are no reasons for believing that this rule does not apply to international organizations or courts. The Vienna
Convention on Diplomatic Relations (1961) and other treaties assert the immunity of an incumbent Head of State.
(5) The International Court of Justice (ICJ), which is the principle judicial organ of the United Nations, has affirmed this immunity to be absolute, and further confirmed that serving Heads of State, Heads of Government and Foreign Ministers may not be prosecuted in foreign national courts or arrested abroad even when charged with international crimes. It is also instructive that recent decisions of domestic courts vis-à-vis indictments of Heads of State have not varied this position.
(6) It is equally noteworthy that the International Criminal Court Statute itself provides, under Article 98 (1), that the Court cannot make a request for surrender or assistance if it would require the requested State to breach its obligations under customary international law with respect to state and diplomatic immunity.
(7) The Government of Kenya therefore expresses its deep concern at the very unhelpful High Court ruling and will do everything within its powers to ensure that the ruling does not undermine in any way whatsoever the very cordial and fraternal relations that exist between Kenya and Sudan.
(8) You will recall that the Assembly of the African Union Heads of State and Government had in February, 2009 cautioned against the indictment of President Bashir and requested the UN Security Council to defer the process initiated by the ICC in accordance with the provisions of Article 16 of the Rome Statute. Kenya as a responsible and active member of the African Union fully subscribes to the position taken by the AU Assembly
(9) On this matter and shall continue to support AU efforts in resolving the matter.
(10) It is a matter of fact that it took overwhelming courage and commitment on the part of President Bashir to overcome the difficult challenges of implementing the Comprehensive Peace Agreement which was negotiated in Kenya under the auspices of IGAD. Kenya still remains Chair of the IGAD Sub-Committee on Sudan and we therefore have a legitimate and strategic interest in ensuring that both peace and justice are achieved in Sudan.
(11) Therefore as much as we respect the ruling of the High Court, we are aware that the Court does not operate in a vacuum. It is important that the country’s national interests as well as the wider interests of the region that we live in are taken into account in matters of this nature. Since our judicial system provides for right of appeal, we shall carefully look at the judgement with a view to requesting the Attorney General to expeditiously prefer an appeal in the matter.
Hon. Moses M. Wetang’ula, EGH, MP MINISTER FOR FOREIGN AFFAIRS
(Released in Bujumbura, Burundi on 29th November, 2011).