Page 27

Mr. Speaker: Order, hon. Members! That matter now must rest there. We will take the next statement by the Minister for Foreign Affairs. This is a Statement with respect to which there has been a lot of interest. As a matter of fact, I had received an earlier request from nominated Member, Mr. Musa Sirma. But the Minister is doing this on his own motion.

PRESENCE OF SUDANESE PRESIDENT OMAR AL-BASHIR DURING PROMULGATION OF NEW CONSTITUTION OF KENYA

The Minister for Foreign Affairs (Mr. Wetangula): Thank you, Mr. Speaker, Sir, for allowing me to issue a Statement in relation to the visit to Kenya on the invitation of the Government of Kenya, of President Omar Al-Bashir of Sudan.

Mr. Speaker, Sir, on the 27th August, 2010, the people of Kenya marked an extraordinary moment in the country’s history. Our new Constitution was promulgated by His Excellency the President in front of hundreds of thousands, if not millions of Kenyans, including several foreign dignitaries, including four Heads of State from our sub-region. The new Constitution had been overwhelmingly endorsed earlier in the month at a national referendum and celebrated as a positive step towards democracy and a new future for this country. The promulgation of the new Constitution marked the end of a 20 year long struggle to produce the Constitution.

Mr. Speaker, Sir, the new Constitution has been billed as the most important event in Kenya’s history since our Independence in 1963. It is in this regard, that the Government took a decision to invite a number of foreign Heads of States and Governments to grace the promulgation ceremony among them, President Omar Al-Bashir of Sudan. I would like to speak specifically, on President Omar Al-Bashir’s presence at the ceremony due to the concerns raised by many Kenyans about this visit.

The decision to invite President Al-Bashir of Sudan to the ceremonies of the promulgation of Kenya’s new Constitution was based on a number of factors.

1. The desire to entrench and deepen the principle of good neighbourliness and the need to maintain closer relations with neighbouring countries is a matter of strategic and national interest for Kenya. The Heads of States consist of Kenya’s partners in the East African Community; that is Rwanda, Burundi, Tanzania and Uganda and member countries of IGAD; that is Uganda, Ethiopia, Sudan, Djibouti and Somalia. They were all invited.

2. As a guarantor of the Sudanese Comprehensive Peace Agreement (CPA), it is incumbent upon Kenya to ensure that progress towards the conclusion of the Sudan peace process is undertaken successfully and results in the promotion of peace, justice, reconciliation and stability in the region.

3. There are a number of steps in this process which will culminate in the self determination referendum of Southern Sudan on 9th January, 2011. Only by carefully midwifing the process can stakeholder countries of the region be assured of a peaceful conclusion of the CPA, regardless of the outcome of the referendum.

4. In that regard, leaving President Al-Bashir out of the invitation to the ceremonies would have amounted to initiating a process of isolation of one of the key partners to the CPA. This will be inimical to the implementation of the CPA and particularly, holding of the referendum that I have referred to. Such an outcome could jeopardise the peace process in the Sudan with disastrous consequences for Kenya and the subregion as well as erode Kenya’s role as a trusted interlocutor between the parties to the CPA; that is the Congress Party and the SPLM.

Mr. Speaker, Sir, Kenya is a regional leader and one of the few countries in the world to pass a new Constitution at peace time. It was, therefore, considered important to include in our invitations, neighbouring countries which are still experiencing problems internally, first, as a sign of encouragement to their own internal processes, and secondly, for them to learn from our experience.

Mr. Speaker, Sir, the Government of Kenya invited both President Al-Bashir and the President of Southern Sudan Salva Kiir, who is the First Vice-President of the Sudan to the event. This was in line with Kenya’s obligation as principle guarantor to the CPA and in order to maintain dialogue and close working relationship with both parties.

However, Kenya was informed at the 11th hour that President Salva Kiir of the South would not be able to attend the ceremony as Sudanese protocol does not allow both the President and the first Vice-President to be out of the country at the same time.

Mr. Speaker, Sir, let me mention at this stage that President Al-Bashir in visiting Kenya, landed at Jomo Kenyatta International Airport (JKIA), inspected a ceremonial guard and then came to the ceremony. At no time did he land at Wilson Airport, neither did he come in secretly.

A cardinal principle in Kenya’s foreign policy is to ensure peace, stability and security in the neighbouring countries, since any past turmoil in the sub-region has always had serious repercussions on our country. Kenya’s objective in this case was to ensure that it safeguarded this principle tenet as a matter of national interest by taking actions that promoted the maintenance of peace in the Sudan. It was also aimed at reaffirming its position as a guarantor to the CPA. Kenya also takes her commitment to the African Union very seriously, out of the realisation that our future is inextricably linked to that of the entire African continent. We are, therefore, in this regard, part and parcel of the AU’s request to the UN Security Council to defer proceedings against President Al-Bashir for at least one year for purposes of peace and reconciliation in the Sudan.

Mr. Speaker, Sir, the AU’s request to the UN Security Council to defer the proceedings initiated against President Al-Bashir of the Sudan in accordance with the Article 16 of the Rome Statute of the ICC has never been acted upon. This prompted the AU member states to enter an Assembly decision at the 13th Ordinary Session of the Assembly of Heads of States and Governments in 2009 in Libya, not to co-operate with the ICC.

Mr. Speaker, Sir, on the specific issue of the arrest and surrender of President Al- Bashir of Sudan, this decision was reinforced at the 15th Ordinary Session of the AU Assembly in July, 2010 in Kampala where the AU Heads of States agreed to a resolution that reiterated calls for freezing the arrest warrant on President Al-Bashir and urged members to work on amending provisions in the Rome Statutes. Our President attended both these Summits. The Summit further requested its member states that are states parties to the Rome Statutes of the ICC to ensure that they adhere and honour their obligations to the AU under Article 23(2) of the Constitutive Act. The AU’s decision is binding on Kenya. It was in line with these provisions that Kenya took the decision to invite President Al-Bashir to the promulgation ceremony among other reasons.

Mr. Speaker, Sir, the AU has since issued a statement, which with your indulgence I read to the House, fully supporting Kenya’s decision not to arrest the President of Sudan during his visit to Kenya. The ACP and we have Members of this August House who attend ACP meetings; a group with 79 Member states stretching three continents, also so merit in the position taken by the AU and has offered unequivocal support to the position that the AU Member countries should disregard the warrants against President Al-Bashir.

Mr. Speaker, Sir, we have read in the media that Kenya has got world opinion by inviting President Bashir to visit our country. Which is this world opinion if countries like the United States of America (USA), China, India and Russia are not even members of the International Criminal Court (ICC)?

(Applause)

It is also worthy to note that African countries comprise of the largest single regional group in the ICC and it is, therefore, critical that their views are taken seriously. Consistent with our desire and that of the African Union (AU) to secure peace and reconciliation in the Sudan, very successful discussions took place between President Kibaki and President Al-Bashir at State House soon after the promulgation of the Constitution. The State House discussions on 27th August, 2010 between the two presidents prompted a meeting between President Bashir and his two Vice-Presidents, Salva Kiir and Ali Osman Taha on 29th August, 2010. I am happy to inform this House that the meeting led to a breakthrough on the most difficult contentious issues including but not limited to the following:-

1. The President of Sudan and his two Vice-Presidents agreed to hold the Southern Sudan Referendum on the date stipulated in the Comprehensive Peace Agreement (CPA) namely 9th January, 2011.

2. The three agreed that they adopt a number of measures to remove all impeding issues facing the Referendum Commission.

3. The three agreed to form a joint political committee for the speedy determination and demarcation of the north/south border before the referendum.

My own colleague, Mr. Dalmas Otieno, if he is here, can bear me witness that only last week, him and I received a high level delegation from Southern Sudan, raising all these issues that our President has resolved by meeting President Bashir in Nairobi.

Mr. Speaker, Sir, Kenya has ratified the Rome statute of the ICC, meaning that national authorities are obliged to co-operate with the Court, including arresting indicted persons. However, this requirement is supposed to be carried out in tandem with Kenya’s other obligations as a member of the international community. Kenya is a member of the African Union and adherence to its decisions is a cardinal responsibility. Regardless of this, Kenya remains fully committed to its obligations to co-operate with the ICC. This has been exemplified several times, including most recently by the decision to allow investigators from the ICC to come to Kenya to carry out investigations pertaining to the identification of the perpetrators of the post-election violence.

Mr. Speaker, Sir, earlier on, Kenya had fully co-operated with the ICC in securing safe passage and protection of some of the witnesses in Darfur. You may also wish to note and recall that Kenya is one of the few countries that resisted pressure to undermine the ICC through conclusion of bilateral immunity agreements with one of the UN Security Council member States. I want to laud my predecessors; that is, Messrs. Kalonzo Musyoka, Chirau Mwakwere, and Raphael Tuju for resisting pressure from a powerful UN Security Council member for Kenya to sign an agreement not to arrest or hand over any of its nationals as and when they are arrested in pursuance of the ICC.

Kenya takes its responsibility to the ICC very seriously and will continue to provide the Court and its agents whatever help they need in order to accomplish their objectives in the country. The AU Assembly Resolution that Kenya has adhered to in this matter confines itself to non-co-operation solely on the case of President Bashir and not in general terms. Kenya and other African countries are, therefore, not rejecting the ICC as an institution or the Rome Statute as a treaty. This can be seen from the fact that the AU, in fact, has sought to use the mechanisms within the Rome Statute to hold the Bashir case. First, there was an attempt to use Article 16 on the deferral and now, the current Resolution justifies non-co-operation on the basis of Article 98 of the Statute.

I wish to observe that the decision on the invitations to the ceremonies for the promulgation of the new Constitution were deliberated on and adopted by a high level committee of Government which involved all stakeholders, Government Ministers and departments, including the Office of the President, the Office of the Prime Minister and the Office of the Vice-President and Ministry of Home Affairs. The Permanent Secretary, Secretary to the Cabinet and Head of Public Service, Amb. Muthaura and the Permanent Secretary, Dr. Isahakia were the alternate chairs to the preparatory meetings.

The Ministry of Foreign Affairs in its role as the Government arm responsible for Kenya’s relations with outside world took part in those deliberations and conveyed individual invitations to these countries. For those who believe in pollsters, the opinion polls shown on our televisions show that Kenyans overwhelmingly have supported the invitation and presence of President Salva Kiir in Kenya.

Mr. Speaker Sir, allow me now to read to this House a statement from the AU. It is only two pages and it is very important that you allow me to read it.

Mr. Speaker, Sir, it goes as follows:-

“The African Union Commission has noted with grave concern statements attributed to some members of the UN Security Council as well as the decisions ICC-02/05-01/09 of 27 August 2010 of the ICC Pre-Trial Chamber informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territories of the Republic of Chad and the Republic of Kenya.

The said statements and the decisions assert that the two African Union Member States have a clear obligation to co-operate with the Court in relation to the enforcement of such warrants of arrest, which stem both from the United Nations Security Council Resolution 1593, whereby the United Nations Security Council urged all member States concerned, regional and other international organizations to co-operate fully with the Court and from Article 87 of the Statute of the Court to which the two countries are state parties. The African Union Commission further notes that the decision by the Pre-Trial chamber was made strangely in respect of the expected attendance of Omar Al-Bashir at the celebration scheduled for Friday, 27 August 2010.

The African Union Commission expresses its deep regret that both the statements and the decisions grossly ignore and make no reference whatsoever, to the obligations of the two countries to the AU, arising from decisions of Assembly/AU/Dec. 245(XIII) adopted by the 13th Ordinary Session of the Assembly of Heads of State and Government, wherein the Assembly decide that in view of the fact that the request by the AU has never been acted upon by UN Security Council, the AU Member States shall not co-operate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to the immunities for the arrest and surrender of President Omar Al-Bashir of The Sudan, which decision was reiterated by the 15th Ordinary Session of the Assembly held in July, 2010 in Kampala, Uganda.

Additionally, the statement and the decisions did not take cognizance whatsoever of the obligations of the AU Member States arising from Article 23(2) of the Constitutive Act of the AU, which obligates all member States to comply with the decisions and policies of the AU. Thus the decisions adopted by the AU policy organs are binding on Chad and Kenya and it will be wrong to coerce them to violate or disregard their obligations to the AU.

It is to be recalled that the repeated appeals to the UN Security Council by the Assembly of Heads of State and Government of the AU as well as the AU Peace and Security Council – Kenya is a member of the Peace and Security Council – to defer the proceedings against President Omar Al-Bashir of Sudan for one year in application of the provisions of Article 16 of the Rome Statute have never been acted upon by the UN Security Council.

The same United Nations Security Council, which has ignored this request by African Union (AU) Member States, and which includes states that have no obligations to the International Criminal Court (ICC), has no moral authority to sit in judgement over Chad and Kenya. Indeed, by virtue of their membership of the AU, these two countries have committed themselves to “condemnation and rejection of impunity” and voluntarily negotiated the Rome Statute along with the Organisation of African Unity and joined the ICC with a view to enhancing the fight against impunity.

The AU Commission recalls that both Chad and Kenya being neighbours of The Sudan, have an abiding interest in ensuring peace and stability in The Sudan and in promoting peace, justice and reconciliation in that country, which can only be achieved through continuous engagement with the elected government of that country.

Neighbouring countries do this as a matter of survival as they bear the brunt of instability or insecurity in neighbouring states. Kenya as a member of IGAD and a guarantor to the peace process in The Sudan, arising from the implementation of the Comprehensive Peace Agreement and the impending referendum in South Sudan, has a duty and obligation to continuously engage with President Omar Hassan Al Bashir and President Salva Kiir.

It is to be noted that engagement with the elected leaders of The Sudan is vitally and strategically essential and unavoidable for the countries of the region as well as the entire continent, which by their location, are better able to understand and take into account the local realities and dynamics. The attempt to involve the UN Security Council in this matter is yet another effort to pressurise African countries to support the ICC, irrespective of the complex dynamics on the ground which require a fine balance between peace and justice. In this regard, the AU shall oppose any attempt to coerce African countries to undermine the common African position.

Mr. Speaker, Sir, finally, the AU will continue to fight against impunity as a requirement by the relevant Assembly decisions as well as Article 4 of the Constitutive Act and shall oppose the pretensions and double standards that are evident from the statements being made about the two countries. The AU believes and will continue to pursue in respect of The Sudan the interconnected, mutually interdependent and equally desirable objectives of peace, justice and reconciliation. It also requests all African Countries and friends of Africa to reject any draft resolution that may be tabled before the UN Security Council on this matter.

Thank you, Mr. Speaker, Sir.

(Applause)

Mr. Speaker: Order, hon. Members! Before hon. Members interject, Mr. Minister, I wish that the record of the House is consistent with respect to how we handle, treat and admit documents. How do you authenticate this document that you have just read as the last document from the AU?

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Speaker, Sir, as the Minister for Foreign Affairs, first, I am familiar with the logo of the AU. I also received the original of the document from the AU Headquarters in Addis Ababa. I also did the due diligence of serving the document on the Chair well in advance before reading it. It is an authentic document and from the tenor and tone of the content, there is no doubt that it is an AU document. I, consequently, table it and ask the Chair to allow it to be part of the record of the House, in view of the importance of its contents and also the enormity of the matter that Kenya is dealing with in The Sudan. It is not just about President Al Bashir coming here but the issue The Sudan, position of the AU and the international community at large. It is an addendum to my Statement.

(Mr. Wetangula laid the document on the Table)

Mr. Speaker: Order, Mr. Minister! The difficulty I have and which I expect you to understand, is that this press release is not signed. It has no signature. I will want you to just account for how you received it, then maybe, I can make my decision on that basis.

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Speaker, Sir, you may recall that the Chairman of the AU Commission, Dr. Jean Ping, attended the promulgation ceremony. In fact, I think I introduced him to you, but I know that you knew each other before.

Secondly, after the ceremony, he stayed back for two days. He was able to get in touch with me. In fact, I am gratified to him that on Saturday, he was part of the many Kenyans, including my colleagues in this House, who honoured me by attending my daughter’s wedding, including yourself. In the process, he discussed with several leaders in this country and mentioned to me that he was horrified to hear what was being said about the presence of President Al Bashir and that on reaching Addis Ababa, he was going to make a release statement from the AU Headquarters.

Mr. Speaker, Sir, I am very familiar with statements from the AU; they are never signed. The statements are released and channeled out on the website of the AU. This statement is on the website of the AU and anybody can access it. It has also been forwarded already to the United Nations (UN), urging it to be careful on what it is doing or about to do about this country. So, I do urge—

Mr. Speaker: Mr. Minister, how was it conveyed to your office?

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Speaker, Sir, we have an Embassy in Addis Ababa that collected the document and forwarded it to us. So, we received it through the normal channels. We have a permanent representative to the AU, who also represents our country to Ethiopia. So, the document was properly conveyed through diplomatic channels.

Mr. Speaker: Do you also confirm that it is on the AU website?

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Speaker, Sir, it is on the AU website. In fact, I read it yesterday on the website of the AU when I was in Mbabane, Swaziland.

Mr. Speaker: Very well! In that case, I will communicate to the House after I verify those contentions, tomorrow afternoon.

I will allow interjections for clarifications from the Minister. I will take as many as we can because of the interest in this matter. Mr. Minister, please, take notes. We will do a round of five and if necessary, another round of five.

Mr. Farah: Mr. Speaker, Sir, I am going to seek my clarifications, but before I do so, I rise on a point of order. Communiqués, press releases and statements from the AU are not signed. Secondly, a Minister for Foreign Affairs is the authentic mandated person. So, as a Government, when a Minister says that this is the position – I seek the direction of the Chair – we do not seek any other authentication on this.

Mr. Speaker, Sir, having said that, let me now seek my clarification.

Mr. Speaker: Order! Order! That is a very dangerous statement, particularly coming from a Member who shares collectivity in the Chair. I have given directions that I will make communication on the final position as to the admissibility of that document tomorrow afternoon. That position will stand as it is, because that is the correct position in law.

Mr. Farah: Much obliged, Mr. Speaker, Sir. I am seeking my clarifications. To begin with, I must say that for once in a very long time, I am proud of my Ministry of Foreign Affairs and my Government too. For very long, we have never asserted our sovereignty as an independent country that actually earned its own Independence through the spilling of blood. We have acted as an appendage to the foreign policy of the super power.

Mr. Speaker, Sir, having said that, I seek the following clarifications from the Minister.
First, could the hon. Minister, tell us what is our interest there? What is the volume of trade that we have with Sudan, the number of Kenyans who are working in Sudan whom I know are in the hundreds of thousands, and those doing business, including in Southern Sudan and Northern Sudan?

Mr. Minister, my memory serves me very well. General Scott Gration, who is the Special Envoy of the President of the United States of America (USA), more precisely, Obama, has said that there is no genocide that has taken place in Darfur. Could the Minister confirm the authenticity of that to this House?

Mr. Minister, the United States of America, as you stated very clearly, is not a signatory to the International Criminal Court (ICC). Not only is it not a signatory to the ICC, but it has got what is the called the Hague Invasion Act. Any country that arrests an American citizen, including a criminal who is involved in genocide, and who is taken to the ICC, the American Government has a right to invade that particular country. Can you confirm or deny to this House, for the benefit of both the House and the Kenyan society?

Very finally, this is oil business. It is the American interest in oil the way they had it in Iraq and Saddam. How much potential is there for Kenya to do business with the Sudan for the future now? I have rested my case.

Mr. Mbadi: On a point of order, Mr. Speaker, Sir, I have listened to the Deputy Speaker, who is a very good friend of mine. By my point of order is this: He has repeatedly mentioned the American Government so many times. Could he clarify because I thought we were asking this as Kenya and not the American Government? Could he clarify how the American Government is getting into the whole issue?

Mr. Speaker: Order! Hon. Member for Lagdera, do you want to make any response to that?

Hon. Members: No! No!

Mr. Farah: Order! Order! I can stand on my very own. The fact that the current President of the United States of America has got an “O” and has the first name “Obama” Hussein and has got parents who are partly from Kenya, does not mean that he is the President of this country. It does not mean that he is any less American than any other American! But the point is—

Mr. Speaker: Order, hon. Members! I do not think this is adding value to the business of this House. So, in fact, I will order that, that part that refers to the President of the United States of America by name be expunged from the record of the House.

Proceed, hon. Sirma.

Mr. Sirma: Mr. Speaker, Sir, thank you for the opportunity. I had requested for a Ministerial Statement but the Minister has taken over and given the Ministerial Statement. The Minister and the organizing committee of the promulgation of the new Constitution were aware of the indictment of Omar Al Bashir, which is internationally known. Out of the 10 charges against Al Bashir, three of them are on genocide; five on crimes against humanity and two murders amongst the 300,000 people who have died in Darfur. Such people, in this country, do not belong to the streets but in jail. How can we stand as a country and say that, that man is innocent? We are defending a person who is a criminal. We have caused disrepute to the ICC which was given recognition by this House! The International Crimes Act was enacted in this House. The Attorney-General deposited instruments of ratification in 2005 and yet, our Government can say no to the arrest of Al Bashir.

How did he come when we know he is a criminal?

The Assistant Minister, Ministry of State for Defence (Mr. Musila): Mr. Speaker, Sir, I want to thank the Minister for that Statement. The Minister is a member of an organization called Parliamentarians for Global Action. I would like to congratulate him for the Statement he has made. Indeed, it is not in dispute that Kenya is a party to the Rome Statute. It is also not in dispute that Kenya passed the International Crimes Act. I am holding a copy here. Therefore, it domesticated the Rome Statute. It is also not in doubt that there is an arrest warrant by the ICC against one Omar Al Bashir, the President of Sudan. Now that Al Bashir has been here, that is water under the bridge. I am just pleading with the Minister that, in future, the Government ensures that, that gentleman is not invited to this country and, if he is— If he sets foot on our soil again, he is arrested. Can I get that assurance from the Minister?

Mr. Speaker: Order, hon. Members! Hon. David Musila caught my eye and I was curious to find out what his point of order was. For some time, I believed that he was supplying information to his friend until he started to ask for a clarification. I am at a loss as to how an Assistant Minister can ask for a clarification on a Ministerial Statement when he has forum elsewhere. I would want to hear the Leader of Government Business. What is your reaction to this?

The Vice-President and Minister for Home Affairs (Mr. Musyoka): Mr. Speaker, Sir, I am sure that hon. Musila is aware of the doctrine of collective responsibility. Therefore, he is bound by the Statement by the Minister for Foreign Affairs. Therefore, I think his remarks, to the extent of a clarification, although I am aware that he is a member of the Parliamentarians for Global Action, should be expunged from the records of this House.

Mr. Speaker: Hon. Musila, you have heard that reaction.

The Assistant Minister, Ministry of State for Defence (Mr. Musila): Mr. Speaker, Sir, It is not my intention to argue either with the Chair or the Leader of Government Business. It is on record that the Prime Minister, who is a Member of the Government, said that he was not consulted in this. If that is the case, it means the issue of collective responsibility would not arise because even the Prime Minister said that he was not aware.

Mr. Speaker: We will go back to requests for clarification.

Dr. Khalwale: Mr. Speaker, Sir, I am not on a point of order. I thought you were giving me a chance to ask for a clarification.

Mr. Speaker: That is what you have caught my eye on.

Dr. Khalwale: Mr. Speaker, Sir, I am asking myself whether we, the hon. Members in this House, remember that Kenya is a signatory to the Rome Statute. To go against it, then the same Members should be asking the Minister whether he is in a position to tell us, or whether he would want to refer the matter to the Leader of Government Business or some other higher authority, whether this is not a confirmation that in spite of us moving on to the new Republic, we are still stuck in the culture of impunity. Regardless of whatever considerations the Minister for Foreign Affairs, and indeed, the Government, had for inviting the Mr. Bashir, there was a lot of loss of tact.

This is because we can only conclude three things, namely, nothing has changed in Kenya and we are still in the culture of impunity. Secondly, that the same Minister is telling us that the Office of the President together with the Office of the Prime Minister, were involved in inviting Al-Bashir. Is he telling us that the Prime Minister of Kenya was lying to the Republic when he told us that he did not know? He needs to clarity this to us.

Thirdly, the souls of the—

Mr. Farah: On a point of order, Mr. Speaker, Sir. The Prime Minister of the Republic of Kenya cannot lie. If there is anything, he can only mislead. The hon. Member is out of order by saying that the Prime Minister lied. That is unparliamentary language.

Mr. Speaker: Order! I appreciate that, hon. Farah, except that the Member for Ikolomani was not making that assertion. He was wondering and wanting the Minister for Foreign Affairs to clarify if the Prime Minister was lying. So, that will be valid.

Dr. Khalwale: Mr. Speaker, Sir, I was just concluding my last clarification from my brother, hon. Wetangula. The Government of Kenya should know that the souls of the 300,000 poor victims who were killed in Darfur are resting there. We do not know whether it is in peace or whether they are crying. The men and women who control power in this country must know that God is watching us. As God watches us, could the Minister clarify whether these strong considerations that made him consider the interest of doing business rather than the loss of 300,000 lives will be used in the event that the International Criminal Court (ICC) will go ahead and indict some leaders in this country for having been perpetrators of the post-election violence that took place in this country and whether he will use the same considerations to give a waiver to those particular perpetrators?

Mr. Njuguna: Thank you, Mr. Speaker, Sir, for giving me this opportunity also to get a clarification from the Minister. Could he explain to this House the level of technical co-operation that is extended to Southern Sudan by our Government in allowing learners in that region to sit for our national examinations, namely, the Kenya Certificate of Primary Examinations (KCPE) and the Kenya Certificate of Secondary Examinations (KCSE)?

Mr. Nyamweya: Mr. Speaker, Sir, the Minister has referred to a powerful country in the Security Council which has been pressurizing Kenya to avoid having its nationals arrested for whatever reasons. Could he clarify to the House which is that powerful country which has been pressurizing Kenya?

The Minister for Foreign Affairs (Mr. Wetangula): Thank you, Mr. Speaker, Sir. With regard to the Deputy Speaker’s sentiments, yes, we have enormous economic engagement and interest with the Sudan. But let me make it very clear as I clarify because hon. Sirma alluded to this. At no time has anybody in the Government of Kenya said that President Al-Bashir is innocent of anything. At no time, have we said that. It must remain on record.

We have no capacity to pass value judgement on the guilt or otherwise of President Al-Bashir until he goes through the due process. As a lawyer, that is very clear.

Southern Sudan, and the Sudan as a whole, has a lot of engagement with Kenya in relation to the question by the Deputy Speaker. If he just wants to know, we have about 40,000 Kenyans working in Southern Sudan alone, mainly teachers, contractors and business people. We have a lot of tea trade. The construction of the Port of Lamu is predicated on the economic interest between Kenya, Ethiopia and Sudan and many other issues. I am sure you have heard the Minister for Roads pronounce that there is a road from Isebania, Kisumu, Kakamega, Webuye, Kitale, Lodwar up to Juba. That again is an economic lifeline.

I do not want to speak for America, but I also know that she has very heavy engagement in the Sudan. She has an embassy and the President of American has a special envoy in the name of General Scott Gration, who represents him in the Sudan. That is a manifestation of how deep the relationship and the engagement between the two countries is. As to what they do between themselves, it is not for me to say.

I am fully aware, according to what hon. Sirma asked, that President Bashir is indicted. I started by saying that and my Statement is very clear. Even the African Union (AU) Statement says that. It is important to understand that the ICC is no ordinary court. It is a quasi political court. That is why it is given to the Security Council to have the final word on who is prosecuted and who is not. Indictments are not enough. The Security Council can stop the indictments or the prosecution of any person at the ICC. This is the window that was created in the Constitution of that court to allay the fears of some of the member countries. Even with that, you may recall that President Bill Clinton had signed the Rome Statute, and President Bush came and struck out his signature. America is not a signatory any more. The ICC is a quasi political court. We must appreciate this. That is why the AU, being very keen and clear on due process, went to the General Assembly. They did not just tell us as member States to ignore. They asked the General Assembly and the Security Council to defer these warrants because of the issues of peace, security and stability in the region. The Security Council has neither said “no” nor ”yes”. Having waited long enough, the AU advised member States not to enforce these warrants and not to comply with them. We are a member of the AU. We are also a member of the Peace and Security Council of the AU. More importantly, let it not be lost to my colleagues that our most critical constituency in our international affairs starts with East Africa, then Africa and then the rest of the world.

My colleagues who have been in diplomacy for a long time can tell you that if it were not for the AU member states, the United Nations Environmental Programme (UNEP) would not be based in Nairobi today. They wanted to take it away to Europe.

That is a constituency we must constantly cherish.

Mr. Speaker, Sir, hon. Sirma asked how President Al Bashir came to Kenya. He came by air!

(Prolonged laughter)

Mr. Speaker: Order! Order, hon. Members! We must hear the Minster for Foreign Affairs.

Mr. Sirma: On a point of order, Mr. Speaker, Sir. The reply that the Minister has given to my question really ridicules rather than answers it. I know that there is nobody who travels from another country by road, or by any other means, to Nairobi. They all travel by air. President Al Bashir travelled by air from Sudan to Nairobi to attend the function. Therefore, that is ridicule. Therefore, I need you to protect me, so that he can withdraw that statement.

Mr. Speaker: Order! Order, hon. Members! Hon. Sirma, did you pose the question: “How did Al Bashir come to Kenya?”

Mr. Sirma: Mr. Speaker, Sir, I asked: “How did Al Bashir get invited to Kenya?” The HANSARD will bear me witness on this.

Mr. Speaker: Very well, if that is so, we cannot make a finding unless we ascertain what is recorded on the HANSARD. If you asked the question: “How did Al Bashir travel to Kenya?”, then the Minister has given you a proper answer.

(Applause)

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Speaker, Sir, indeed, my hon. colleague asked two questions: “Why was he invited and how did he come?” I have already explained how he was invited, and I have said how he came.

Dr. Khalwale made categorical statements that Kenya is a signatory to the Rome Statute. That is true. He asked me to confirm that we are stuck in impunity. We are not. In fact, we are making major strides. I did mention very clearly that the issue of President Al Bashir and the geopolitics of this region, and the desire for a stable, prosperous and peaceful Horn of Africa region must be looked at when we are dealing with the question of the Sudan.

Mr. Speaker, Sir, I thought that Dr. Khalwale was going, through me, to congratulate the President for meeting President Al Bashir and unlocking the impasse that was threatening the referendum of 9th January, 2011, which is now firmly on course. The Coalition Government of Kenya does not, cannot and will not condone impunity. That must be very clear, and must be put on record.

The issue of Darfur and the number of people who have died in it is a whole complex web of the difficulties that the Sudan is going through. That is why the AU has appointed an Eminent Persons Group of retired Presidents including Thabo Mbeki, Piere Buyoya and Abubakar of Nigeria, who have returned a very clear verdict, which has been adopted by the AU and forwarded to the UN – that any attempt to deal with the Sudan in isolation of the issue of peace, security, stability, reconciliation and justice will come to naught. All must be addressed jointly, if we have to secure the Sudan.

Mr. Speaker, Sir, I have no doubt that Dr. Khalwale knows that the overflowing camps of people at Kakuma, in northern Kenya, happened when Sudan was at war with herself. The fact is that the refugee camps at Kakuma are empty, our brothers and sisters having gone back. They are now preparing for a referendum. We know that justice is a critical component of human life, but we also know that equally important is peace, stability and security.

The Member of Parliament for Lari asked about the technical support we have for the Sudan. We do—

Dr. Khalwale: On a point or order, Mr. Speaker, Sir. The Minister has moved away from my question. I wanted him to confirm to the nation, having told us that both the Office of the President and the Office of the Prime Minister were involved in the invitation of President Al Bashir, whether the Prime Minister was lying to the nation.

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Speaker, Sir, first of all, I am not the spokesman of the Prime Minister. Secondly, I do not want to pass any valid judgement on the Rt. Hon. Prime Minister and whatever he said. In fact, I do not know what he said.

What I informed the House is that there was a committee which was alternately chaired by Amb. Muthaura and Dr. Mohamed Isahakiah – Permanent Secretaries (PSs) in the Offices of the President and the Prime Minister, respectively. They all shared in the process of inviting the dignitaries and in the success that we phenomenally witnessed at Uhuru Park.

Mr. Speaker, Sir, allow me to, in fact, on behalf of this House, to congratulate the two gentlemen for a job well done.

The Member of Parliament for Lari asked about the technical support we have for Southern Sudan. We have a Memorandum of Understanding (MoU) on education and technical support in terms of building capacity for administration. In fact, outside the East African federation, Southern Sudan today is the only country where Kiswahili is a compulsory teaching language in all their primary schools. We have Kenyan teachers who are teaching there. So, those are some of the benefits flowing out of it.

Mr. Speaker, Sir, on hon. Nyamweya’s question, I would like to respond that it is common knowledge that a powerful country has repeatedly asked many countries, Kenya included, to sign an exception to Article 98 of the Rome Statute, so that any of their nationals arrested or indicted for whatever reason cannot be arrested. I am sure that you know what I mean.

Mr. Speaker: Order! Order, hon. Members! As I indicated at the beginning, we will take just another five clarifications. This matter must come to a rest.

Yes, hon. Amina Abdala!

Ms. A. Abdalla: Mr. Speaker, Sir, I would also like to congratulate the Minister for being proactive in giving us this Ministerial Statement. Our current Government is a special Government. It is a Grand Coalition Government. The Minister has told us the decision to delay the arrest of President Al Bashir was reached at the 13th Sitting of the African Union. What measures did he take to inform the entire Cabinet, so that they could all understand that Kenya had decided to support that AU resolution? I know that he does not do it in this House. He is supposed to communicate decisions he has agreed to when he goes to AU meetings. What measures has he taken to inform other members of the Cabinet, so that we do not see the display of the embarrassment that we saw this weekend?

Mr. Speaker: Yes, hon. Jakoyo Midiwo!

Mr. Midiwo: Mr. Speaker, Sir, I want the Minister to clarify whether a resolution of a sitting of the AU can be equated to the laws of the land. If it can, how binding can it be compared to what our laws say? The Rome Statute was domesticated by this House. So, we want to know, as we move into the new era, whether we want to continue living in the past.

Secondly, the Minister has said that there was a committee of Government, and he has thanked the two PSs he has referred to. However, I want him to clarify who signed the letter which invited Hon. Al Bashir.

I also want the Minister to clarify whether the Government of Kenya, or a representative of a section of the Government of Kenya, had some input in the drafting of the Communiqué of the AU that he has read before this House.

Lastly, because Al-Bashir has come and gone as Mr. Musila said, it is now water under the bridge. The way some of us are interpreting this is that, the wider implication of the visit – which is the impunity of Al-Bashir – is meant to have a wider implication on the post-election violence which took place in this country in 2008. I want the Minster to assure me that the people who ordered the killing of my people in Nakuru, Eldoret, Kericho and Nairobi shall not go scot-free, if and when they are indicted by the International Criminal Court (ICC).

Mr. Twaha: Mr. Speaker, Sir, President Al-Bashir is the President and Commander-in-Chief of a sovereign State and I am sure the Minister is aware that you cannot arrest a President and Commander-in-Chief. You can only capture him in an act of war. What part of ICC empowers it to order countries to declare war on one another?

While at it, is the Minister aware of any proceedings against one George W. Bush, Tony Blair, Ariel Sharon and the people who dropped bombs in Nagasaki and Hiroshima?

Mr. Mbugua: Mr. Speaker, Sir, I would like to clarify for the Minister if—

Mr. Speaker: Member for Kamukunji! Are you seeking clarification or clarifying?

Mr. Mbugua: Mr. Speaker, Sir, I am seeking clarification from the Minister if indeed the African Union has frozen the arrest warrants for Al-Bashir and to explain to the House what stand they should take? Is it the ICC’s decision to arrest Al-Bashir or the AU’s decision?

Mrs. Shebesh: Mr. Speaker, Sir, I would like to seek the following clarification from the Minister. He knows that I sit in the Pan-African Parliament (PAP) in the Committee of International Relations. Therefore, I would like him to clarify that an AU decision, especially this that came in regard to President Al-Bashir was not a decision that was agreed upon by all nations but it was a decision that all nations were told to uphold. It is important that people know whether there were some who dissented to the decision that was made at the AU. I would also like him to clarify to us, in terms of the situation of Southern Sudan, our country is at the forefront. As the Minister said, Kenya is the custodian of the peace accord.

The Minister also said that in the meeting with the President of Sudan, four issues were resolved. I do not know whether he understands how heavy that statement is, including the issue of the demarcation of borders. Could he clarify again on the Floor of this House that the issues including having a referendum for the people of Southern Sudan in January and the demarcation was agreed upon by the President and if that would be ratified by the AU?

Mr. C. Kilonzo: Mr. Speaker, Sir, on many occasions, I have always found myself on the other side of the Minister but for once I am with him on this case. I appreciate the indiscipline in the Government. Those are your problems. The Minister has brought up the issue of the AU. I want to know what this AU is doing on the murder of Patrice Lumumba who was the Prime Minister of Congo by the western countries. At the same time, I want to know what this AU is doing about this false war in Iraq. You know the pretext was that Iraq had weapons of mass destruction. I also want him to clarify which comes first; national interest or international interest. At the same time, I want him to confirm who is living in these parts of the region; is it Kenya or is it another country?

Finally, I want him to confirm whether indeed this Government is in charge because we have evidence in many cases where the Central Bank of Kenya (CBK), corporations, judges and Ministers starting with my good friend, Mr. Kimunya, have been threatened by a travel ban. Who is in charge of this country? Those missions or yourself as a Government?

Mr. Speaker: Hon. Members, we will do the last one, I am afraid. The matter must rest at some point. I will give the chance to the hon. Member for Ndaragua.

Mr. Mbadi: Mr. Speaker, Sir—

Mr. Speaker: Order, hon. Member for Gwassi! Everyday is not Sunday!

Mr. Kioni: Mr. Speaker, Sir, I would want the Minister to clarify; when President Al-Bashir was being sworn in after the recent elections in Sudan, were we invited and did we attend? If so, who attended? Also were there representatives from the United Nations Security Council?

Secondly, there is this AU organization and one of the paragraphs says that:- “The AU Commission further notes that the decision by the Pre-trial Chamber was made strangely in respect of expected attendance”. It is good to know what is strange about that pre-trial.

Thirdly, what benefits, if any, have we realized as a nation from this visit? Lastly, why is it that we are over-relying on the position that was taken by the AU?

Mr. Speaker: Order! The Minister will now respond.

The Minister for Transport (Mr. Kimunya): On a point of order, Mr. Speaker, Sir.

Mr. Speaker: What is your point of order, taking care that you share responsibility with the Minister?

The Minister for Transport (Mr. Kimunya): On a point of order, Mr. Speaker, Sir. In the course of seeking clarifications, several adverse mentions were made on a Head of State of a friendly nation which, I believe contravenes our Standing Orders, specifically Standing Order No.79. Would I be in order to ask you to expunge, or ask for those references to be expunged, because they contravene our Standing Orders?

Mr. Speaker: Order! You will have failed in your duty as a Member of the House in as much as you ought to raise those matters which are in breach of the Standing Orders instantly, as and when they are addressed. You will notice that when the Chair became aware of one such incidence, I did direct that it be expunged from the records. So, for the reason of your being late to raise those matters and you cannot do so in general terms, I am afraid you are out of order.

Mr. Minister!

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Speaker, Sir, Ms. A. Abdalla wanted to know if we circulate the decisions from the AU. First of all, every decision taken is posted on the website of the AU. So I expected my colleagues to be sufficiently computer and IT compliant to see them. But I take your cue and I will be circulating them as soon as we make them.

Mr. Midiwo asked about the resolution of the AU. This is also part of what Mr. Kioni asked.

Mr. Speaker, Sir, I want to inform the House that we have to comply without exception. By Article 23 of the Constitutive Act, members states have to comply with the decisions and policies of the African Union. The highest organ of the African Union (AU) is the Summit. It is the Summit that says the Heads of State and Government that made the decision for the AU Members States not to comply with the issue of President Bashir.

Mr. Speaker, Sir, hon. Midiwo also asked who signed the letter and I think that question is just rhetorical. A letter inviting a Head of State can only be signed by a fellow Head of State. That is the peer. So the letters were generated from the committee and they were signed by our Head of State inviting his colleagues; Heads of States. In fact, regarding the invitation to the President of Southern Sudan, Salva Kiir, there was debate as to whether that letter should be signed by the Prime Minister or the Vice President, but I advised and I think rightly so, that we are inviting President Bashir as a Head of State and also as a party to the Comprehensive Peace Agreement. So Salva Kiir was also invited as a party to the CPA and Kenya as a guarantor, we were obligated to invite both of them and the President signed both letters as is expected. But as it turned out, their protocol could not allow both of them to leave the country. This happens in many other countries. If you may recall, many times President Mandela had to swear in Buthelezi to act as a president because both him and his vice president were going out.

Mr. Speaker, Sir, hon. Midiwo also asked about the wider implications and whether the visit by President Bashir visit has a bearing on post election violence. I have said it over and over that the Government is co-operating fully with the process of the International Criminal Court of Justice (ICC) on post-election violence. A committee chaired by Prof. Saitoti, myself, Mr. Orengo, Mr. Kingi and one or two other colleagues has been dealing with the issues. I know that there is progress and and nobody has impeded the ICC from carrying out its duties. The issue of President Bashir has absolutely nothing to do with our post election violence. It must be noted that the same AU whose resolution we are obeying and respecting is the one that sent here the eminent persons in the person of Koffi Annan, Ben Mkapa and Graca Machel that led us down the path up to the phenomenal event that we had in Uhuru Park the other day. So we cannot possibly turn away and say we value the AU for sending the eminent persons here and we do not agree with them on the issue of President Bashir. This will be double standards. I think we have to respect the AU because it is the core of our diplomacy and comfort in this region and sub-region.

Mr. Speaker, Sir, on the issue of—

(Several Members stoop up in their places)

Mrs. Odhiambo-Mabona: On a point of order, Mr. Speaker, Sir. The Minister seems to be contradicting himself. Is he in order to be contradicting himself? When he was giving his substantive Statement, he said that in order to balance peace and justice, we cannot take action as per the ICC. Now in order to balance peace and justice, he is telling us we shall nonetheless be taking action. Is he being honest?

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Speaker, Sir, I have not in any way contradicted myself. I think I have been very consistent in isolating and defining the case of President Bashir and the issues of the Horn of Africa and the postelection violence that Mr. Midiwo asked. I do not think I have contradicted myself in any way—

Mr. Wamalwa: On a point of order, Mr. Speaker, Sir. Hon. Midiwo sought a very serious clarification as to whether a resolution of the AU and a law passed by this Parliament—

The Minister for Foreign Affairs (Mr. Wetangula): I was coming to that.

Mr. Wamalwa: Thank you.

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Speaker, Sir, I was coming to that, Mr. Wamalwa. The Resolution of the AU on the ICC is borne out of the strength and authority of the Constitutive Act which was not only ratified by the Government of the Republic of Kenya, but was adopted by this Parliament before ratification by the Government of the Republic of Kenya and, under which, we are obligated to obey the decisions of the organs of the AU. In terms of the domestication of the Rome Statute, we domesticated it as part of our laws and we must, like I said in my Statement, look at the wider context of issues. The AU has given us direction; it has not told us to walk out of the ICC or to disregard the Statute of Rome. It has isolated one case and if you read the Act properly, you will see that the final Act on any ICC processes lies with the Security Council of the UN, not even with member States. That is the why the AU dutifully went to the Security Council.

Mr. Mbadi: On a point of order, Mr. Speaker, Sir. Is it in order for the Minister to avoid answering this question? There is Article 2(6) of our Constitution which says that we have to recognize the treaties that we sign. They become part of our laws. Then, he is talking of a Resolution of the AU. Is that more superior to a treaty or convention that this country has signed; the law of this country?

(Applause)

Mr. Speaker: Mr. Wetangula, will you please try and move to conclude?

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Speaker, Sir, yes, we also signed the treaty of the Constitutive Act of the AU, which is very critical to the survival of this country.

Mrs. Shebesh asked whether the decisions were unanimous or not. The decisions of the AU were made without any dissention. So, they are taken to be unanimous and I always thank her and her colleagues from this Parliament who always join us. You have seen that and you know what the AU has said about this issue.

Mr. C. Kilonzo has asked me a very weighty issue about Patrice Lumumba and all our brothers who died a long time ago, and other issues like the war in Iraq and so on. We all have varied judgments on these issues. I am sure that what prompted Mr. C. Kilonzo is on the minds of many others. We live in an un-equal world. We live in a world that is devoid of justice! I want to assure the hon. Member that our national interests must, at all times, be cardinal and paramount. Anything else must be subordinate to our national interests. That is why certain countries, in pursuit of their national and strategic interests, have even kidnapped heads of states of other countries and jailed them in their countries.

On the issue raised by Mr. Kioni, I would like to respond as follows: When President Bashir was being sworn in after elections that were described by Retired President Carter as: “Despite the imperfections, they were elections, nonetheless. They were a way forward for the Sudan.” President Kibaki sent his Vice-President and Minister for Home Affairs who represented us at the ceremony. Equally, when President Salva Kiir was sworn in, the same Vice-President and Minister for Home Affairs was sent by the President to represent us. Many countries, including organizations as important as the UN, were heavily represented. In fact, the Secretary-General of the UN has one of his deputies permanently stationed in Sudan, Khartoum, to oversee the issues of Sudan.

Finally, the benefits from the visit of President Bashir can be, again, reflected in what I said. I received a note from the Embassy of Sudan that listed four things: That the parties agreed, following President Bashir’s return to Sudan and meeting his two Vice-Presidents, to hold the Southern Sudan Referendum on the dates stipulated in the Comprehensive Peace Agreement (CPA) on 9th January, 2011 to adopt a number of measures to remove all the impediments facing the Referendum Commission. The referendum Commission had repeatedly raised alarm bells that they were not ready to hold the referendum and so on. The principals have told them the referendum must be on the date set.

Mr. Speaker, Sir, they also formed a joint political committee for the speedy demarcation of the north-south boundary before the referendum. we also know that within the Comprehensive peace Agreement (CPA) negotiated by our Vice-President, who was then the Minister for Foreign Affairs, has a window for what they call “popular consultations after the referendum” to deal with all outstanding issues that may not have been dealt with, so that there is no pretext of outstanding issues to delay the referendum that everybody is looking forward to.

Fourth, the meeting called upon the regional partners and the international community to live up to their commitment and pledges to support the implementation of the remaining provisions of the CPA. They also thanked President Kibaki for meeting President Bashir to unlock this impasse and get things moving. We cannot do better than that.

Mr. Mbugua: On a point of order, Mr. Speaker, Sir. The Minister has not answered my question, which was with regard to freezing of the arrest warrant. I did ask him if he can confirm if, indeed, the AU has frozen the arrest warrant against President Al Bashir.

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Speaker, Sir, the AU has no power to freeze the arrest warrant, but it has authority to direct its member states, as it has done, to disregard it in the wider interests of peace, security, stability, reconciliation and justice.

Mr. Speaker: Hon. Members, we must make progress. We have spent too much time already on this matter and I shall allow no more time on it.

COURT RULING AGAINST PRESIDENT OF SUDAN

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Speaker, Sir, I am offering to make a short unsolicited Statement to the House on the issue of the court case against the President of Sudan.

On 28th November this year, a court sitting in Nairobi made a ruling ordering the arrest of the Sudanese President Omar Al Bashir in the event he sets foot in Kenya.

Within 12 hours of the ruling, the Kenyan Ambassador to Sudan, Amb. Robert Ngesu was summoned to the Ministry of Foreign Affairs in Khartoum at midnight and given 24 hours to leave. Sudan also ordered its ambassador to Kenya to vacate and go back within 72 hours.

Mr. Speaker, Sir, based on this, President Mwai Kibaki sent me as his Minister for Foreign Affairs with the Minister of State for Defence, hon. Yusuf Haji, to deliver a special note to his counterpart on the issue. The content of the letter was in part to the effect that courts in Kenya are not under the control of the Executive and that when a decision such as that is made, the appropriate avenue for redress is appeal, and that the Government had instructed the Attorney-General to file an appeal.

We did meet the President of Sudan and in our meeting, it came out that several retaliatory or reprisal measures were being undertaken by Sudan against Kenya.

(a) One thousand five hundred Kenyans living and working in Sudan, who include 450 students, were being expelled from Sudan.

(b) Our Ambassador was under expulsion.

(c) Kenya contributes a contingent of police under the UN Peace Keeping Force in Darfur (UNAMID.) Sudan was contemplating the removal of those policemen and as you know, peacekeepers under the UN do so with the concurrence of the recipient country.

1. Sudan was also to ban the import of tea and other products from Kenya. Last year Kenya exported tea worth US$250 million and Sudan is the number five major consumer of Kenya’s tea.
2. Sudan was going to impose an air embargo on all flights to and from Kenya. It should be noted that up to 70 per cent of air flights to Kenya overfly Sudanese airspace.

3. Sudan was going to cease participating in any IGAD meetings to which Kenya is—

The Minister of State for Defence (Mr. Haji): On a point of information, Mr. Speaker, Sir.

Mr. Speaker: Mr. Minister, do you want to be informed by your colleague?

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Speaker, Sir, can I finish and then I get the information?

Mr. Speaker: Order! If the Minister wants to inform you at this point, he should be having a reason as to why!

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Speaker, Sir, I accept the information since he travelled with me.

Mr. Speaker: Very well! Proceed, Mr. Minister!

The Minister of State for Defence (Mr. Haji): Mr. Speaker, Sir, as the Minister has rightly said, I accompanied him to Sudan. I am really saddened that in spite of the fact that he used one-and-a-half hours and all the skills that he has both as a lawyer and as a diplomat to convince President Al Bashir to stand down the threat that he was giving and succeeded, unfortunately, yesterday some activists in Non-Governmental Organizations (NGOs) who want to sustain themselves were attacking him directly, when what he only did as a Minister was to fight for the interest of Kenya, otherwise Kenya would have suffered. Seventy percent of the Kenya Airways flights pass through Sudan. You can imagine if that was to stop. The Kenyan economy would have suffered.

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Speaker, Sir, I thank the Minister very much for the information.

[Mr. Speaker left the Chair]

[Mr. Deputy Speaker took the Chair]

Mr. Deputy Speaker, Sir, the last and more important issue is that Kenya is the chair of the CPA implementation committee of IGAD. Although Southern Sudan is independent, there are several outstanding issues. There is South Kordofan that is still outstanding, the Blue Nile State, the un-demarcated boundary and citizenship issues. Above all, there is the issue of Abyei.

President Bashir stayed all these conditions and gave us two weeks to observe the developments and see how further we can deal with the issue. But let me say that when the judgement was made, as the Foreign Affairs Minister for this country, I was reached by the media. It should not be lost that I am a lawyer of over two decades standing in this country. I said that this is a judgement in error. This is what every lawyer says when we go to the Court of Appeal to appeal against any judgement. I also said that this is a judgement incapable of obedience. This is what every good lawyer says when you go to court on appeal. I also said that this is a judgement in error of law. The law is very clear and I do not want to go into it because the Attorney-General is appealing against this ruling. At no time did the Ministry of Foreign Affairs of Kenya say that we shall not obey the court order. The Minister for Foreign Affairs said that it is a judgement incapable of obedience. These are not one and the same thing.

Mr. Deputy Speaker, Sir, I am a lawyer and I participated in bringing to this country this Constitution at Bomas, Naivasha and in this House. I feel saddened for some activists to start saying out there that I said “do not obey a court order.” I have never said that and will not say that. Saying “a judgement is incapable of obedience” is not saying that we will not obey a court order.

Let me finish by saying that the Government is not about the Executive, the Judiciary or Parliament. It is about all of us; the Judiciary, the Executive and the Legislature. We all form the Government and we have a duty to protect the interests of this country. Obviously, all the six sanctions I have listed here that Sudan was taking against Kenya, were going to hurt this country and our economy. These issues were also going to hurt innocent Kenyans working and living in Sudan, our soldiers who are keeping peace in Sudan and above all, the image of this country as a peacemaker and leader in pursuit of peace in this region.

Mr. Deputy Speaker, Sir, that is the message that I wanted to give to Parliament. I thank hon. Haji for accompanying me. We did meet you in Khartoum as well, and you fully understood the message that we went to deliver.

Thank you, Mr. Deputy Speaker, Sir.

Mr. Baiya: Thank you, Mr. Deputy Speaker, Sir. I would want to thank the Minister for Foreign Affairs for the clarifications he has made. But the main concern of this country, especially of the Executive, is the role the Executive has played in actually getting itself to where it finds itself. Is it not true that the Executive did not actually bring before the court all the information relevant to the harm and hurt this country was going to actually go through as a result of which the court made a decision that the Executive found difficult to comply with? Having done that, is it really in order? Is it optional for the Government to choose to say: “On this decision, we are incapable of compliance; we are not going to comply?” Where does that, really, leave the Constitution of this country and the rule of law?

Mr. Olago: Mr. Deputy Speaker, Sir, I had actually asked for a Statement from the Minister in respect of this matter today. It is good enough for a lawyer like my colleague, the Minister for Foreign Affairs, to say that the judgment is erroneous; it is not based on law and not capable of being complied with. That is quite proper in law.

Mr. Deputy Speaker, Sir, as we address this issue, another very, very important issue that comes up is this, while the country has been debating this issue, the hon. Chief Justice has come out in the media to comment on this matter. As an advocate of the Court of Kenya, I think I have a duty to advise that while a matter is still live, as this one is, the Chief Justice should be cautious and keep away from making public comments because it is possible that this mater may come before him to make arbitration.

(Applause)

Mr. Deputy Speaker, Sir, I am quite relieved that the Minister for Foreign Affairs has today said that what was said in the Press is not what he uttered. To that extent, therefore, could he tell the House how far he has gone with the appeal?

Mr. C. Kilonzo: Mr. Deputy Speaker, Sir, this is not the first time the Government has been caught napping, as usual. Where was the Government when this matter was in court? Why did the Government not put up a strong case? My understanding is that the Attorney-General’s Office sent very junior officers who probably never understood the consequences of this matter.

So, Mr. Deputy Speaker, Sir, this Government now cannot turn around and push the blame to the courts. The blame goes squarely to the Government! If, indeed, Sudan is a friendly country to Kenya, we should have sent the best presentation in court. And if we do not have it in the Attorney-General’s Office, you hire from the private sector. What is the Government going to do to that person who was responsible for not taking proper representation to put the proper case in court – because this is not a matter which can be left lying down – so that it can be a lesson in future that nobody takes matters of this nature lightly?

Mr. Ngugi: Mr. Deputy Speaker, Sir, I just want to ask the Minister for Foreign Affairs the following; just in case the Judiciary does not overturn that decision, does the Government have plan “b” to protect our interests? Thank you, Mr. Deputy Speaker, Sir.

Mrs. Shebesh: Mr. Deputy Speaker, Sir, it is unfortunate to hear members of the civil society being called activists who are busybodies because, honestly, they speak for the people and the day that this Parliament will realize that they will stop throwing around words like “activists who are busybodies.”

But, Mr. Deputy Speaker, Sir, let me ask the Minister the following; Mr. Minister, you are very concerned about our diplomatic ties with Sudan. I wonder whether you are also just as worried about our diplomatic ties with South Sudan, a new country whose population has gone under what we call in courts “genocide” and the reason for the kind of sanctions that are being leveled against the President of Sudan. Are you also aware that we also have diplomatic ties with South Sudan and that the people of Darfur have suffered long enough?

Mr. Gunda: Mr. Deputy Speaker, Sir, I want to thank the Minister for Foreign Affairs and the Minister of State for Defense for what they did in trying to protect the interests of Kenyans.

(Applause)

But that aside, if it were not for those interests, would the decision to arrest the President of Sudan if he sets foot here be proper or not?

Mr. Deputy Speaker: Can the Minister for Foreign Affairs respond to the five or six issues raised by hon. Members?

The Minister for Foreign Affairs (Mr. Wetangula): Thank you, Mr. Deputy Speaker, Sir. My learned junior from Githunguri Constituency asked me about compliance and I did say, and I think perhaps he was consulting with my other learned junior, Mrs. Odhiambo-Mabona. I said that this is a judgment incapable of obedience. I did not say we will not respect the court order. That is standard language that any good lawyer who goes on appeal uses in indicting a judgment. And any good lawyer like Olago Oluoch here will tell you that a judgment incapable of obedience is not an assault on the Judiciary. It never will be!

As to whether the Executive was negligent in handling this matter or not – and this comes to the point raised by Mr. C. Kilonzo – Mr. Deputy Speaker, Sir, the Attorney-General has indicated that he is not satisfied in the manner that the case was handled in the first place. He has filed an appeal and I have no doubt that he has a good chance on the law, because the law is very clear on this matter.

Mr. Deputy Speaker, Sir, hon. Olago Oluoch has said it very clear – and I agree with him – and I want to beg the Chief Justice, my own teacher, that if he makes statements on a case that he is likely to sit on appeal, it can easily embarrass him because this matter will likely go to the Court of Appeal and end up in the Supreme Court, where the Chief Justice is the President.

Mr. Baiya: On a point of order, Mr. Deputy Speaker, Sir.

The Minister for Foreign Affairs (Mr. Wetangula): I am just responding to what—

Mr. Baiya: On a point of order, Mr. Deputy Speaker, Sir.

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Deputy Speaker, Sir, am I out of order in any way? I am responding to what Mr. Olago Oluoch said.

Mr. Baiya: On a point of order, Mr. Deputy Speaker, Sir.

Mr. Deputy Speaker: What is out of order, Mr. Baiya? Proceed, Mr. Baiya!

Mr. Baiya: Mr. Deputy Speaker, Sir, I also listened to the statement that has been made by the Chief Justice and at no time have we heard the Chief Justice defending the decision of the High Court on merit. That would actually embarrass him if he sat on the appeal. He has merely sought to defend the principle that if you have any issue with the decision, the right pattern and the right thing to do is to go on appeal. Is it in order, therefore, for the Executive to keep attacking the Chief Justice for doing that which he has actually sworn to do – to defend the Judiciary?

Mr. Olago: On a point of order, Mr. Deputy Speaker, Sir. I raised that issue, first of all, and I have heard my junior colleagues, through the Minister, talk about it as well. The issue that we find unpalatable is that when a matter is live; a matter is trite, then the Chief Justice comments about it. Whether it comes before him by way of contempt proceedings or it comes before him by any other proceedings, he should not be commenting in public! All lawyers should know that.

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Deputy Speaker, Sir, that is all I said. I did not say anything beyond that.

Mr. Deputy Speaker, Sir, hon. C. Kilonzo also asked about the lawyers who probably misrepresented or inadequately represented the Government in this case. I believe the Attorney-General is hearing this and I thank you for pointing out that because if there was proper representation, we would not be where we are in the first place.

Mr. Deputy Speaker, Sir, hon. Ngugi asked about plan “b.” Plan “b” on this is the appeal that we are pursuing and I believe that it has very good chances of success. Mr. Deputy Speaker, Sir, hon. Shebesh talked about South Sudan. In fact, the hon. Member is on the same page with me. We are the Chair of the CPA Implementation Committee of IGAD, which takes care of issues of South Sudan and we are trying to protect this as well. South Sudan has no difficulty with what Kenya is doing because we have diplomatic relations with South Sudan. We have an ambassador there, Amb. Leshore, and they have Amb. Majok here as their ambassador, and we have a wonderful relationship. We have no difficulties with this.

President Bashir is being indicted at the ICC on matters of Darfur and not on matters of South Sudan. So, South Sudan is not an issue at all.

The reference to activists was not to demean anybody. I mean the word “activism” is commonly used in this country. Everybody uses it. I do not want to deal with abstract. However, we have enormous interest in Sudan as a friend, neighbour, trading partner and as a party to the CPA. Above all, it is a strategic importance to our air routes to the rest of the world. If they were not there, we would still care because it is an African country like we are.

Mr. Duale: Mr. Deputy Speaker, Sir, I think the three arms of Government, whether it is the Judiciary, the legislature or the Executive, must be ready at all times for Kenyans of any standing to give their views of any judgement. I think the Chief Justice must come to the reality of that. Under our new Constitution, Kenyans will give their views on any judgement.

Having said that, I think the Office of the Attorney-General has been exposed. I am sure it is not only in this case, but there are many other cases that the Government has lost due to inefficiency. They might even in future see more cases of this nature. There is an AU position on President Bashir and the ICC. There is an IGAD position which Kenya has signed. I think it is now that the Ministry of Foreign Affairs must relook at its foreign policy. Now that this has happened, and now that he has appealed, what is the Kenyan foreign position that in future we will not endanger our interests because every country in the world cares about its interest, including the Americans?

So, the Kenyan interests are more important than any other country’s interest. So, what is your foreign policy and what is the Kenyan interest from Sudan and other countries?

Dr. Khalwale: Mr. Deputy Speaker, Sir, as I speak now, there is a court order which is in force. That court order has not been overturned. I would like the Minister to confirm that since he is reported as having said that they want to invite Mr. Bashir to come to the country. Could he confirm that if he steps his foot here, he will be arrested on the spot so as to comply with the Constitution of Kenya which provides that the rule of law must be upheld?

The second clarification is that the Minister has clearly said they fear the loss of trade. He talked about US$250 million in tea. Is he also aware that the route he is pursuing risks our country in being given economic and trade sanctions by the international community because he wants to convert our country into a pariah state?

Finally, because, apparently, Mr. Bashir seems to have a very big voice in the Executive, we would like the Executive to know that the public which voted for the new Constitution has also got a very big voice in this Parliament. It is important—

Mr. Deputy Speaker: Order!

Dr. Khalwale: My last clarification.

Mr. Deputy Speaker: Order, Dr. Khalwale! You seek a clarification on the Statement by the hon. Minister. You do not use this as forum to make speeches and that goes for every Member of Parliament. Those are the basic rules of the engagement of the House. If you cannot respect your own rules, how do you expect somebody else to respect the laws of the country?

Proceed, Dr. Khalwale!

Dr. Khalwale: Mr. Deputy Speaker, Sir, lastly, is the Minister aware that once the court makes it pronouncement, this matter is not merely a legal issue? It is now a serious political issue requiring wide consultations. Is he doing those consultations, so that he does not unilaterally appeal against a popular ruling by a Court of Kenya?

Mr. Njuguna: Mr. Deputy Speaker, Sir, while thanking the Minister of State for Defence and the Minister for Foreign Affairs for the visit they made to Khartoum, could he, therefore, inform this House the precautionary measures they have taken regarding the security of our people and students in that country, now that the Khartoum Government has firmly directed our Government to respond in two weeks time?

Mr. Imanyara: Mr. Deputy Speaker, Sir, our country’s best interests are served in defending our Constitution. For those of us who have fought for this Constitution for many years much longer than Bomas and other times, our first duty and the best interests of this country are served by obeying the Constitution.

The Constitution requires each and every one of us, at all times, to uphold the Constitution. Now that there is a judgement of the court, notwithstanding that the Executive may not be in agreement with it, will the Government stop issuing vague statements and confirm that they will comply with the court order immediately?

Secondly, could the Government apologize for the statements that defies a court order in defense of a fugitive from international justice?

Mr. Chanzu: Mr. Deputy Speaker, Sir, arising from the statement that he has made, because he has only looked on one side, could he clarify whether this country is so helpless and that we are at the mercy of Sudan? He is talking about the students, the Ambassador in Kenya, the Kenyan tea and so on. Could he also tell us whether he has also considered that Kenya is a sovereign State? Could he also tell us whether they sat as Cabinet and were able to analyze our strengths and weaknesses before they just looked at one side of the case?

Mrs. Odhiambo-Mabona: Mr. Deputy Speaker, Sir, I just want to thank my senior counsel for giving his Statement and also thank his senior counsel, hon. Olago, for also responding.

He has indicated that in two weeks the Government will give a comprehensive statement on what they will do and yet, we know that there is a court case and an appeal. He is not the Chief Justice, the last time I checked. He is short of defying the court. I am more interested in him saying that he is not in contempt of the court, because I am very keen on following and respecting the Constitution. Otherwise, we will tell all Kenyans to disobey all court orders because the Constitution talks about equality. So, what I would want him to clarify to us is what assurance he will give in two weeks with a court order pending? Is he God? How does he know? He is not the Chief Justice.

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Deputy Speaker, Sir, I cannot agree more with Mr. Duale. The positions of IGAD and African Union (AU) are fortified very strongly. I want my friend, Dr. Bonnie Khalwale, to be informed of those positions by reading Article 98 of the Rome Statute which has been domesticated in Kenya. I also want to invite Dr. Bonnie Khalwale to read the Vienna Convention of 1963 on the diplomatic immunity for sitting Heads of States and Governments. I also want to remind hon. Members that our own Constitution, which we are quoting here – and which I also believe in like my learned senior, Mr. Imanyara, says very clearly—

Dr. Khalwale: On a point of order, Mr. Deputy Speaker, Sir. Whereas I like the references that the hon. Member is giving me, is he in order to mislead the House that the Vienna Convention takes precedence over the provisions of the ICC and the Constitution of Kenya when we are exercising our judicial authority?

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Deputy Speaker, Sir, I never said anything of the sought. I do not know where he got that from. I was reminding him that the Vienna Convention under our new Constitution— Our new Constitution adopts all conventions, treaties and protocols acceded to by Kenya as part of our law. I will volunteer information and free legal advice to my friend, Dr. Khalwale, that the Vienna Convention would be superior in interpretation to any domestic law.

Mr. Deputy Speaker, Sir, another point—

The Assistant Minister, Ministry of State for Defence (Mr. Musila): On a point of information, Mr. Deputy Speaker, Sir.

Mr. Deputy Speaker: Mr. Wetangula, do you want to be informed?

The Minister for Foreign Affairs (Mr. Wetangula): No, I do not wish to. Mr. Deputy Speaker, Sir, Dr. Khalwale asked whether we are going to obey the court order. If you listened to me, I said very clearly – and my learned senior, Mr. Imanyara, came in late – that, that is a judgment in error. I have heard you say it in court when you are arguing your appeals on any judgment. I said this is a judgment incapable of obedience. I never said that we will not obey it. I never said this is a judgment we will not execute.

Secondly, —

Mr. Imanyara: On a point of order, Mr. Deputy Speaker, Sir. Is it in order for the Minister to mislead this House by splitting hairs and saying that, that judgment is incapable of compliance when, in fact, we are bound and are required to comply with it? The order of the High Court of Kenya is the final determinant of all these interpretations that the Minister is giving, including the Vienna Convention. The judge was perfectly aware of all these conventions and yet, he made that order. Will this Government comply or not comply with a court order of the Republic of Kenya?

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Deputy Speaker, Sir, further, Dr. Khalwale talked about the popularity of the judgment. Once a judgment is passed, values as to whether it is popular or not are neither here nor there. The parties to the case can choose and elect to appeal. This case was filed by the International Commission of Jurists (K) against the Attorney-General and the Minister of State for Provincial Administration and Internal Security.

The Assistant Minister, Ministry of State for Defence (Mr. Musila): On a point of information, Mr. Deputy Speaker, Sir.

The Minister for Foreign Affairs (Mr. Wetangula): I do not want it!

Mr. Deputy Speaker, Sir, the Attorney-General, as the principal respondent, has filed an appeal. Popularity or the lack of it is neither here nor there. We should wait for the outcome of the appeal.

The Member for Lari asked about the security of our students and nationals. They are perfectly secure and there is no harm pending to them.

Mr. Deputy Speaker, Sir, on Mr. Imanyara’s clarification, the Executive is part of this Government. The Executive respects the Constitution because it is founded on the Constitution. The Executive respects the Constitution and that is why it has asked the Attorney-General to appeal against the ruling.

Mr. Chanzu thought that this is a one-sided affair; Kenya has had no issues with Sudan other than the ruling. It is Sudan that has issues with Kenya because of the ruling and we are responding in accordance with the issues raised. Of course, we can also have issues, but they are not necessary at this stage.

Thank you.

Mrs. Odhiambo-Mabona: On a point of order, Mr. Deputy Speaker, Sir. Is the Minister in order to fail to respond to my question? He has given an assurance of two weeks and yet, he is not the Chief Justice. Does he know a way that the decision is going to be made within two weeks? If so, can you tell us how you know that and you are not in the Judiciary?

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Deputy Speaker, Sir, if my learned junior, Milly, listened to me very well, I never said that Yusuf Haji and I gave two weeks. We said that Sudan expects a response from Kenya in two weeks; those are different things. I did not say that we gave an assurance of two weeks. The appeal has been filed and it will come when we reach it. Let us wait for the appeal to take its course and let us respect what is going on in court.

Dr. Khalwale: On a point of order, Mr. Deputy Speaker, Sir. Sorry to drag you back. I had asked the Minister to tell us whether, in his mind, it is worse to invite international trade sanctions against losing business with Sudan because of enforcing the court order.

The Minister for Foreign Affairs (Mr. Wetangula): Mr. Deputy Speaker, Sir, that is another point that I had omitted to answer. Dr. Khalwale asked whether I said we will invite President Bashir to come to Kenya. I also saw it in the media. I said – and it must be on a clip in all media houses, including international media – that Kenya is going to ask IGAD to call for a meeting very urgently to deal with the outstanding issues of the CPA because they were on the agenda of the Summit that we held in Addis Ababa on 25th . But because the President of Sudan and the President of Southern Sudan were not there, the agenda was put aside. When the meeting is called – and I hope it will be called in Addis Ababa because the Chair of IGAD is the Prime Minister of Ethiopia – we will be there to attend hoping that the President of Sudan and the President of South Sudan as the two principals, will be there to resolve the outstanding issues.

If President Bashir was to come to Kenya, it is certainly not the Ministry of Foreign Affairs or any other Ministry to invite him. That is because Ministers do not invite Presidents to visit other countries. It is the Head of State who can invite another Head of State. I cannot be that careless as to say that I will invite President Bashir because I have no capacity to invite him.

Secondly, there is absolutely no risk of any sanctions on Kenya arising out of the altercations on this case. I am sure the international community is more serious than that.

Mr. Deputy Speaker: Next Statement!

August 31, 2010

The Al-Bashir presence at Uhuru Park on promulgation day was unfortunate because the vast majority of Kenyans hold Al-Bashir responsible for presiding over a myriad of atrocities in Sudan that could spill to the rest of the region. Al-Bashir is not some anti-imperialist head of state to the North of Kenya who has been targeted by some American imperialist forces. He is the architect of a brutal state system and has become the first head of state to be accused of all the trio crimes under the ICC; Genocide, Crimes against Humanity and War Crimes. The ethnic cleansing towards the non-Afro-Arab population by the Janjaweed militia has reportedly reached a death toll of close to 400,000. Previously a Civil war had raged between the northern and southern halves of the country for over 19 years between the northern Arab tribes and native southern African tribes, but the war soon effectively developed into a struggle between the Sudan People’s Liberation Army and al-Bashir’s government. This war resulted in millions of southerners being displaced, starved, and deprived of education and health care, with almost two million casualties. Kenyans are only too familiar with this having hosted the Southern Sudanese in Kenya for all that time. Bashir has continued to remain in power by annihilating populations on religious and racist basis.

It is our position therefore that the Kenyan Government could not have arrested Al-Bashir in Nairobi because he was their guest and that a citizen arrest which was highly contemplated could only have resulted to fatalities given the high level of security and knowing the track-record of the Kenyan security forces.

Al-Bashir SHOULD never have been invited to Kenya in the first place. In fact no country that claims to respect the rule of law and human rights should be associated with the likes of Al-Bashir.

You see all human beings are born endowed with and therefore entitled to all human rights irrespective of their ethnic group, nationality race or religion. In addition these rights are indivisible in nature and we cannot therefore argue that the right to Peace is more important than the right to Life and dignity or the right to food more important that the right to Health. The argument therefore that because of Peace and Security of the region as a country we should fraternize with suspected murderers and other human rights abusers is null and it amounts to accept blackmail.

Human rights are also Universal and Inalienable; meaning that all people everywhere in the world are entitled to them (whether they are from Sudan, Kenya or Iraq). Article 1 of the Universal Declaration of Human Rights states that “All human beings are born free and equal in dignity and rights.” Governments that therefore respect human rights and treat their citizens with dignity will advance that culture towards other citizens of the world. The one sure way for Kenya to show solidarity with the people of Darfur and the entire Sudan is to keep off Omar El-Bashir if we cannot hand him over to the ICC.

Towards Accountability and Rule of Law; States and other duty-bearers are answerable for the observance of human rights. In this regard, they have to comply with the legal norms and standards enshrined in international human rights instruments. Where they fail to do so, aggrieved rights-holders are entitled to institute proceedings for appropriate redress before a competent court or other adjudicator in accordance with the rules and procedures provided by law.

The Kenya constitution under article 2 (1-6) affirms the supremacy of our constitution and binds all State Organs to exercise their authority only as authorized by the constitution. Under clauses 5 and 6, general international rules form part of the Kenyan Laws and any International Treaty or Convention ratified by Kenya shall form part of the Kenyan Law.

The Kenya government in its entirety flouted the Kenyan constitution, especially after 10.15am on the 27th of August, 2010 when it became the Law of the Land. However it should be noted that even under the old constitution, the government still flouted the law because we have ratified the Rome Statute. Therefore instead of continuing to defend a dead position, the government should immediately discipline those who cheated the people of Kenya of their most glorious moment to-date and in broad daylight under international limelight defied the new constitution.

Uganda next door has recently made it clear that if Al-Bashir set foot there, he will be arrested and taken to the International Criminal Court (ICC). That thinking is important. But read this: “Subjecting our countries to an unjust imperialist Kangaroo court such as the so called International Criminal Court is worse to our countries & peoples than seeing tyrants go scot-free for lack of an independent and just forum to try them”. This was part of a statement by a Kenya progressive as regards the storm over Al-Bashir’s visit. This statement has two messages; one that we should immediately withdraw our membership of the ICC and secondly that we better leave African murderers to walk free rather than subject them to the ICC. Simply put: if they have killed us without being arrested, we should be left to kill ourselves without being brought to justice! This argument is fatalistic. How will our countries be worse off for getting the Al-Bashirs and other suspects of murder in Kenya and Africa tried for their crimes against humanity?

Let us turn to the greater of our concerns which is that Al-Bashir wants the world to secure a settlement in The Sudan and in the Horn of Africa on his own terms. The Kenyan government wants to legitimize this position by attempting to define the Sudan question from the ruling class point of view. This is how Al Bashir was invited to the promulgation ceremony at Uhuru Park against the will of the majority of the people of Kenya. Kenya was not under any obligation to invite Al Bashir to come to Nairobi for the Promulgation ceremony whatsoever. But the ruling class in Nairobi wanted an opportunity to prepare the world that Kenya under Kibaki’s watch shall not deliver the Post election violence principal suspects to the ICC for trial. That was the message and it is possible a lot of oil and oil dollars money changed hands for this move to be pulled on the nation.

The question before the world today is this: should we let African murderers walk free because Bush and Blair have not been taken to the ICC for allegations of killing Iraqis? The answer to this question is NO. Most Kenyans want Al Bashir together with the principal suspects in the Post election violence in Kenya and Bush, Netanyahu and their cohorts to face justice for crimes they have committed against their own people and against peoples of other nations. This is the principled position any anti-imperialist progressive thinker or leader must take. To argue that Al-Bashir should be taken to The Hague after Bush and Olmert is cynical. Why in that order? The legitimacy of a court is not determined on the basis of the order of which crimes suspects are tried but by the fact that nations, including Kenya, have accepted the legitimacy of the courts. We have ratified the Rome Statute and passed the International Crimes Act here at home to domesticate the courts.

There is this tired assertion that those who are calling for Al Bashir to be tried at the ICC are puppets of imperialism. Those who make these kinds of assertions similarly get horrified when dictators like Mugabe are called to account for human rights violations against the people of Zimbabwe. This was a Moi line of attack against anti-imperialist forces like Mwakenya and DTM- that if you are against African oppressors you must be a hireling of the west.

Let us emphasize that African dictators and oppressors who invest time and acumen to rig elections, rip off the treasuries of their countries and brutalize and torture their own citizens are not anti-imperialist agitators. Mugabe is an example here. Similarly, Bush, Blair and Netanyahu do not use their state machinery to attack their own people. On the contrary, our African dictators like Al-Bashir, Mubarak, Mugabe and Meles Zenawi use their positions to subjugate and kill their own people. In the Bulkans, those Presidents and military dictators who killed populations in their countries found themselves in the ICC. So it is very unnerving when Africans who claim to be anti-imperialist argue that ICC is an imperialist instrument to subjugate Africans. How come Kenya is a signatory and not the US? Why did we ratify the Rome Statute?

So what after today? We have been talking for decades about the end to impunity; we hoped the new constitution would help us end this impunity and in some cases, instantaneously. The people of Kenya must begin to see the law working for them and in this case all who were associated with the invitation of Omar Al- Bashir thus beginning with contravening the Kenyan constitution on day one should be dealt with according to the law and quit their offices immediately. We continue to push for the enactment of the Special Tribunal for Kenya and will as a nation push for the arrest and trial of post election violence suspects locally and abroad.

There is clearly a disconnect between the aspirations of the people of Kenya and the current leadership. Therefore there is need that we the people plan to elect to office anti-imperialist, progressive and accountable leaders to take over the reigns of government in Kenya. Lastly we must continue to deepen our struggles to liberate Africa from the exploitative imperialist international economic structures. These five policy options are crucial for deepening democracy and justice for all while ensuring that all those who have caused suffering to Kenyans and Africans are made to account for their crimes. This is the Ubuntu foundation of our development, peace and pride as a people.

Cyprian Nyamwamu and Njeri Kabeberi are both leading Human Rights Defenders in Kenya and the Africa region.

The Government’s decision to invite the president of Sudan wanted for genocide and war crimes in Dafur and subsequent justification by Hon. Moses Wetangula that ‘it is in the interest of fostering regional peace and security’, is in itself legally bankrupt, a manifestation of impunity and an abuse of the intelligence of Kenyans.

Kenya has signed and ratified the Rome Statute of the international court and subsequently domesticated it by the enactment of the International Crimes Act Cap 16 of 2008 and is thus bound and obliged to effects warrants on suspected Criminals.

Section 5 of the international crimes Act specifically binds Kenya to the Rome Statute and Rules of the Court while Section 10 criminalises, any wilfully attempts in any manner to obstruct, pervert or defeat the course of justice of the ICC, prescribing an imprisonment for a term not exceeding five years.

Article 2(2) and (6) of the Constitution of Kenya (2010) prohibits any extraneous claim or exercise State authority by anyone except as authorised the Constitution and recognizes any treaty or convention ratified by Kenya as forming part of the law of Kenya respectively .The attempt to foster regional peace and security by wining and dining with wanted international criminals can rightly be argued to contravene Article 2 of the constitution.

When read jointly, the invitation of Al Bashir, not only contravenes the International Crimes Act but also the constitution of Kenya. Such contravention is not only criminal but manifests impunity of which the clamour constitutional reform was meant to remedy.
The failure by Government to offer a redress mechanism to the victims of the Post election violence who continue to wallow in misery in IDP camps across the country compelled the international court to act and initiate investigations a fact that is still fresh in the minds of many and as such Al Bashir’s presence in Uhuru park served as a painful reminder to victims in Kenya that there is no political goodwill to offer justice in Kenya and sends a further chilling message to the international community of Kenya’s position in relation to its obligation to cooperate with the ICC.

The Promulgation of the Constitution was principally a local event for the people of Kenya and stretching our imagination that the same serves to foster regional peace leaves a lot to be desired.

Invited delegates were specifically to witness the event and such friends of Kenya should share with our aspirations. On the basis of the Foreign affairs justification, one would ask why the government did not invite Joseph Kony, the warlords and Al Shabab in Somalia and the Oromo Liberation Front of Ethiopia?

Finally foreign policy development is a matter of national importance that Kenyans must demand as a priority, the issue of this invitation should immediately be seized by the parliamentary committee on defence and foreign relations, with a view of not only interrogating the decision making process but also offering the much sought answers in relation to our foreign policy on international crimes. If Kenya believes that the Rome Statue and its municipal legislation does not respect then appropriate measures should be taken in repealing the International Crimes Act and a process of withdrawal from the Rome Statute pursuant to Article 127.

If a crime has been committed on the first day of promulgation on the constitution can we see action being taken?

However Kenya remains bound by Law and such unnecessary belligerence, calls for immediate answers as a commitment to redressing the past but also to prove that there is truly a new dispensation in Kenya.

Samwel Mohochi
Advocate of the High court of Kenya,
Former Executive Director, Independent Medico legal Unit.
Member of the General Assembly, World Organisations against Torture (OMCT)

On Friday the 27th Kenyans celebrated the rebirth of a new Nation under new Constitution. It was a great moment for this country after fighting for a new dispensation for over two decades. It was Kenya’s time to stand among world Nations a real Democratic State.

Kenya’s party was spoilt by one invited guest, the Sudanese President Omar Al-Bashir. President Al Bashir has an arrest warrant on his head by the ICC for war crimes, crimes against humanity and genocide.

It was a slap on the face of Kenyans to invite a man who has been indicted for the deaths of over 300,000 Darfurians on such an historic day.

His presence in the country attracted a lot of negative attention in the international media over shadowing the Kenya’s ceremony. It was a slap on the face of many Kenyans who have paid a heavy price to achieve this moment. President Al Bashir was invited by the Kenya government to attend the promulgation ceremony.

It also raises doubts of Kenya’s commitment to cooperate with the ICC in resolving the post election violence that is currently being investigated by the Court.

Al Bashir has 10 counts against him by the ICC. The ICC has since then referred the case to the UN Security Council for deliberations on the action to take against Kenya

The government has been asked why it could not arrest the Sudanese President and Foreign Affairs minister Moses Wetangula said that would destabilize Sudan and its Comprehensive Peace Agreement, he also said that any such action would be in conflict with two Africa Union resolutions urging African Nations not to arrest the Sudanese despot. The government through the Foreign Affairs Assistant Minister says our government invited both President al-Bashir and Southern Sudan President Salva Kiir because Kenya did not want to be seen to be favouring any side.

The government is divided on the issue, threatening the existence of the coalition government. ODM has come out strongly to deny their involvement in the invitation of Al Bashir saying it was not consulted, even though an ODM cabinet minister was tasked to escort him.

This raises question on who was behind the invitations of the Heads of State.
US President Barak Obama has reprimanded Kenya for inviting Al Bashir despite Kenya assenting to the Rome Statute.

As Kenya ushers in a new the Constitution that seeks to end impunity, it is upon the same government to respect the document and its international conventions.

Kevin Cheruiyot