3 December 2011
editorial
Someone should probably have given Sudan’s President Hassan Omar al-Bashir a copy of the Kenyan constitution when he attended the ceremony where it became law on August 27, 2010.
Mr Bashir would have noticed that one of its core tenets is the separation of powers among the Legislature, Judiciary and the Executive.
It is understandable that Mr Bashir should have trouble understanding these concepts.
He is a military man steeped in the tradition of senior officers issuing directives as law.
President Bashir seized power in a coup in 1989 and has ruled since with the aid of a very small cadre of loyal military men.
Yet by escalating the diplomatic standoff between Kenya and Sudan in the dramatic way he did yesterday, Mr Bashir risks exposing himself to ridicule.
He is essentially asking the government to do the impossible. In a nation with a functioning and reasonably independent judiciary, you cannot overrule a judge’s decision by executive fiat.
President Bashir has also adopted the posture of an irrational actor on the international stage.
On the face of it, this is not an issue that should cause friction between the two countries for two reasons.
President Omar al-Bashir visited Kenya for the promulgation of its new constitution last year, but he faces arrest if he travels there again.
First, President Bashir does not need to travel to Kenya to execute his functions as president of Sudan.
Second, it is to be expected that the government in Kenya will use the cover of an appeal they are launching in the courts to explain their inaction on the judgement in the unlikely event that the Sudanese leader does set foot in Kenya.
At the end of the day this appears to be an overreaction to an order that seems to have pricked the long-serving president’s ego.
It is understandable that a man wanted by the International Criminal Court for crimes against humanity should occasionally press the panic button and act in a way that verges on the hysterical.
Mr Bashir should now retreat from his hardline position that threatens to create a new crisis in a region which already has too many.
His government has its hands full with the delicate negotiations over its future relations with South Sudan and needs allies like Kenya to help mediate some of these issues.
Kenya, too, must take its lessons from this episode. This is a self-inflicted crisis.
It was a serious error of judgment to have invited President Bashir to a ceremony heralding a new era of governance under a progressive constitution approved through a popular vote.
It was an act of considerable arrogance by those in the Ministry of Foreign Affairs who made the decision, and that invitation has returned to haunt them.
The government does not appear to have appreciated the very serious political fallout that could result from a loss in court on this matter at a time when the nation is at war.
It should have sent its most senior lawyers, including possibly the AG or Director of Public Prosecutions, to lay out in clear terms its case against the petition.
Finally, the government can draw lessons from the example offered in an analysis published elsewhere in this edition on how Britain reacted to a warrant issued against the foreign minister of Israel, a key ally of the UK.
The government did not bash the judiciary. Rather, it introduced a law that made it harder for an individual to seek orders from the courts that could endanger the security of the state from the courts.
This latest diplomatic spat with Sudan, though, can mainly be resolved in Khartoum where President Bashir needs to abandon his rather paranoid posture over the now famous arrest warrant.
AllAfrica – All the Time