, NAIROBI, Kenya, Dec 1 – Chief Justice Willy Mutunga has condemned the Executive for disobeying court orders and urged judicial officers to be firm in dispensing justice.
In a terse statement on Thursday the Chief Justice said disobedience of court orders would lead to anarchy and urged his officers to maintain their independence and not be cowed by the Executive.
“To choose not to obey court orders is to overthrow our Constitution. Court orders apply universally to ordinary citizens, corporations, members of the Judiciary, Executive and Legislature. If a country chooses to live by anarchy, it must be ready to face the consequences of disregarding the law,” the Chief Justice said in a statement.
The statement seems to be in apparent reference to pronouncements made by senior government officials over the warrant of arrest issued against Sudanese President Omar al Bashir and orders stopping demolitions of structures in Syokimau and Eastleigh.
Justice Mutunga said the Executive must respect the doctrine of Separation of Powers and said that all judicial officers are not subject to any direction or control.
“I urge all Kenyans and institutions of government to adhere to the provisions of our young Constitution and abide by the rule of law. The Constitution provides avenues to be followed where individuals or institutions are aggrieved by judicial decisions,” urged the CJ.
On Monday High Court Judge Nicolas Ombija issued a warrant for the Sudanese leader after the government failed to execute an International Criminal Court (ICC) warrant when Bashir visited Nairobi last August.
Bashir is wanted in The Hague-based ICC for alleged war crimes, crimes against humanity and genocide committed in Sudan’s Darfur region, where the UN says at least 300,000 people have been killed in the eight-year conflict.
Kenya has ratified the ICC’s founding Rome Statute, which theoretically obliges it to execute the court’s warrants.
Judge Nicolas Ombija said the court ruling meant that Bashir’s arrest “should be effected by the attorney general and the minister for internal security should he ever set foot in Kenya.”
But Foreign Minister Moses Wetangula said in a statement on Tuesday: “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.”
“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,” he said.
“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.”
After Monday’s court ruling, Sudan ordered Kenya’s ambassador to leave the country within 72 hours and ordered its ambassador to leave Nairobi.
Bashir had attended last year a ceremony in Nairobi to mark the adoption of Kenya’s new Constitution.
After he left the country a free man, the Kenyan chapter of the International Commission of Jurists, an association of legal professionals that promotes human rights, approached the courts to issue a warrant.
Bashir is the subject of two arrest warrants issued by the ICC for atrocities committed in Darfur in western Sudan. The first was issued in March 2009 for war crimes and crimes against humanity. The second was issued in July 2010 on charges of genocide.