THE KENYAN SECTION OF THE INTERNATIONAL COMMISSION OF JURISTS

The invitation of President Omar al Bashir by the government of Kenya is both Unconstitutional and

a breach of Kenya’s International obligations. Omar al Bashir is expected to attend the celebrations

for the promulgation of a new constitutional order which upholds Human Rights, the Rule of Law

and Social Justice scheduled to take place later on today (27th August 2010).

The presence of President Bashir against whom there are two pending arrest warrants from the ICC

in relation to his involvement in war crimes, crimes against humanity and genocide committed in

Darfur, could not be more unwelcome especially at a time when Kenya is celebrating the passage of

a new Constitution. Taking into account that this Constitution is a result of the reform process

initiated following the post poll crisis 2007-2008, which has also resulted to the Kenya being put

under investigation by the ICC for crimes against humanity it is therefore unacceptable that the

Kenyan government can play host to a indictee of the ICC.

Victims of post election violence in Kenya suffered violations concurrent with crimes against

humanity as set out in the Rome Statute, including systematic acts of rape and other forms of sexual

and gender based violence. Similarities can be drawn between the harm suffered by victims in Kenya

and Darfur notwithstanding the difference in scale. By inviting President Bashir, given his inability

to travel to other parts of the world, the Kenyan government is effectively endorsing international

crimes, particularly crimes against humanity as suffered by both Kenyan and Sudanese victims.

The new Constitution is clear that International Law is a source of law in Kenya, recognizing also

that Kenya is a signatory to the Rome statute and is obliged both the Statue and the international

crimes act to cooperate with the ICC. On 6th March 2009 Kenya received a request to arrest and

surrender Omar al Bashir to the ICC, this request still stands and Kenya is expected to arrest and

surrender President Omar al Bashir, on his arrival in Kenya.

The new constitutional order that will be ushered in is one of respect for the Rule of law, Human

Rights and governmental obligations nationally and internationally, the government can therefore not

begin implementing the new Constitution in a manner that defeats the spirit of the Constitution.

Other State Parties to the Rome Statute have been clear on their obligations under the treaty in

relation to the ICC’s arrest warrants against President Bashir. South Africa, Nigeria and Uganda

expressly stated that they would be under an obligation to arrest President Bashir were he to set foot

on their territory. We expect no less of the Kenyan Government.

NAIROBI

27.08.2010