Grishon Ng’ang’a Thuo March 6 2012 High Court issues warrant of arrest against president of neighbouring state Njoroge Regeru & Company | Litigation - Kenya Grishon Ng’ang’a Thuo Litigation Introduction Background Opposition to issue warrant of arrest Findings of the court Comment Introduction Kenya is a party to the Rome Statute. The statute establishes the International Criminal Court (ICC), which has jurisdiction over certain offences referred to in Article 5 of the statute. These include crimes of genocide, crimes against humanity, war crimes and crimes of aggression.President Omar Ahmad Hassan Al Bashir is the president of the Republic of Sudan, which is a neighbouring state of Kenya. Al Bashir faces five counts of crimes against humanity and three counts of genocide at the ICC. To that end, the ICC has issued two warrants of arrest against him. Further, the registrar of the ICC has sent a supplementary request for state parties to the Rome Statute to effect his arrest and surrender should he enter their respective territories.On August 27 2010 Al Bashir visited Kenya and attended a public ceremony without being arrested. This prompted the Kenya Section of the International Commission of Jurists (ICJ-Kenya) to seek the issuance of a provisional warrant of arrest against him.(1) Further, ICJ-Kenya sought orders compelling the minister for state for internal security to arrest Al Bashir should he set foot in Kenya again.Background As mentioned above, Kenya is a party to the Rome Statute. It has also implemented the statute through the 2008 International Crimes Act. The preamble to the act provides as follows:"An Act of Parliament to make provisions for the punishment of certain International Crimes, namely, genocide, crimes against humanity and war crimes, and to enable Kenya to co-operate with the International Criminal Court [ICC] established by the Rome Statute in the performance of its functions."Article 2(5) of the 2010 Constitution provides that the general rules of international law shall form part of the law of Kenya. This is seen as a key step taken by Kenya towards meeting its international obligations under international law.Opposition to issue warrant of arrest The attorney general, on behalf of the Kenyan government, opposed the issue of the warrant of arrest. In his view, the court lacked jurisdiction to grant the orders sought. The attorney general quoted the Rome Statute extensively and argued that the application for a warrant of arrest ought to have been made either by the ICC itself or by the minister of state for provincial administration and internal security.Findings of the court In its findings, the court ruled that it had jurisdiction to grant the orders sought. Consequently, the court issued a provisional warrant of arrest against Al Bashir and further directed the minister of state for provincial administration and internal security to effect the warrant if and when Al Bashir sets foot within the territory of Kenya.CommentThe issue of a warrant of arrest against Al Bashir has been received with mixed feelings. On the one hand, it has been criticised as insensitive to Kenya's diplomatic relations with the Republic of Sudan. However, some have hailed it as confirmation of Kenya's commitment to meeting its international obligations and upholding the spirit of its constitution. For further information on this topic please contact Grishon Ng'ang'a Thuo at Njoroge Regeru & Company by telephone (+254 20 271 8482), fax (+254 20 271 8485) or email ([email protected]).Endnotes (1) Nairobi High Court (685/2010), Kenya Section of the International Commission of Jurists v Attorney General.