NAIROBI, Kenya, Dec 13 – Attorney General Githu Muigai has defended the government’s decision to appeal the High Court order for the arrest of Sudanese President Omar Al-Bashir if he ever sets foot in Kenya.
Muigai insists that a sitting head of state enjoys immunity both under Kenyan and international law.
“The State Law Office is satisfied that a sitting head of state enjoys complete immunity from criminal prosecution at all times. We are satisfied that the Rome Treaty recognises that exception,” said the AG on Tuesday.
Muigai said the State Law Office had evaluated the ruling made late last month by High Court judge Justice Nicolas Ombija and is of the opinion that it was a “judgement in error”.
“We have evaluated this ruling against international law, the Rome Statute that established the International Criminal Court, the Kenyan Statute domesticating the Treaty and the Constitution,” he said.
The AG said the government was confident that the Court of Appeal would overturn the arrest warrant for Al-Bashir.
He said: “We have therefore gone to court to ensure that Kenyan law is interpreted correctly, not just because of this case but because it is important for future cases that may very well confront this country.”
Muigai has already filed a notice of appeal and is awaiting the appointment of judges to hear the matter that has soured diplomatic relations between Kenya and Sudan.
Justice Ombija issued the warrant of arrest against President Al-Bashir to face crimes against humanity charges before the International Criminal Court following an application by the International Commission of Jurists.
President Al Bashir is wanted by the ICC for war crimes, crimes against humanity and genocide in Darfur.
He attended the ceremony in Nairobi on August 27 last year for the Promulgation of the Constitution and Kenya was obliged to arrest and hand him over to the Hague-based court. Kenya which is a signatory to Rome Statute failed to enforce the warrant causing an international outcry.
But Kenya is also bound by a decision of the African Union, which charges that the warrant ought to be postponed as enforcing it would complicate efforts to have peace in Darfur.
The ruling has caused a diplomatic row between Kenya and Sudan, with Al Bashir threatening to expel the Kenyan ambassador in Khartoum and recall their representative in Nairobi.
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