When Kenya extended an invitation to Omar Hassan al-Bashir, the Butcher of Darfur, to witness the promulgation of its New Constitution, few knew about it; this is how police states operate. When they are about to do something that will get people's backs up, they tend to be sneaky and secretive. They rarely consider the legal niceties of their actions. Make no mistake: Kenya is a police state that pretends to be a democracy, scheduling regular (blood-soaked) elections and allowing a nominally free press. However, the process that led to the promulgation ceremony was bedevilled by distortions and misinformation on a scale that would have made Joseph Goebbels proud. A lie told thousands of times becomes truth, so said Herr Goebbels and the opponents of the Proposed Constitution spared no opportunity in lying through their teeth to get their way. It seems that one Okiya Okoiti Omtata is determined to carry one the fight long after the umpire has blown the whistle (Best international practice absolves Kibaki of the Al-Bashir visit, Saturday Nation, September 11, 2010).
In his latest diatribe, Mr. Omtata is attempting through some convoluted linguistic gymnastics to equate international law to the Constitution. This was one of the canards that the REDs perpetuated during the Refrendum Campaigns and one that I had thought had been dismissed for the lie that it was. Article 2(1) states that the Constitution "is the supreme law of the Republic ..." Article 2(5) states that "the general rules of international law shall form part of the law of Kenya" while article 2(6) states the "any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution." (Emphasis mine).
In the context of the logic that Mr. Omtata is attempting to foist on the country, it is quite clear that the Constitution is the supreme law. No other law exists over and above the Constitution. A reading of articles 2.5 and 2.6 shows that international law is subordinate to the Constitution of Kenya, and regardless of whatever treaties Kenya has signed and ratified, they shall be subordinate to the law of Kenya. Last week, Peter Mwaura attempted to show that there were at least two possible interpretations of Kenya's actions regarding the Al-Bashir visit: the first being that Kenya could have met its obligations under the Rome Treaty. The other was that Kenya could have complied with its obligations under the African Union Charter, which Moses Wetangula informed us was what the government chose to do.
Mr. Omtata is correct that the rules of international law are not as straight forward as some of the moralists calling for President Kibaki's impeachment seem to think. The West, as shown by the actions of the United States and the United Kingdom, have repeatedly violated the terms of treaties and charters that they have signed and ratified. The United States was a founder-member and a considerable force behind the formation of the United Nations and yet, when it suited its interests, it ignored the provisions of the United Nations Charter and invaded, not just Afghanistan but Iraq too, leading to "collateral damage" on an incredible scale. However, because of its power, no one is going to call for the indictments of George W. Bush or Barack Obama for prosecuting what are essentially illegal wars. The United Kingdom is a signatory to the OECD Anti-Bribery Convention but it was not averse to halting prosecution or investigation of officials of BAE systems in their arms deals with the government of Saudi Arabia, arguing that such an act would compromise its "national security."
In both these examples, international law was subsumed to the national interests of both the US and the UK. Why should we, just because we have recognised the role of international law under Kenyan law, not play fast and loose with the general rules of international law, international treaties or conventions? Mr. Omtata, in attempting to show that the Constitution is deeply flawed, has failed to make a credible point showing that Kenya has reduced itself to a vassal of the perfidious West. If Kenya indeed had placed international law at par with its Constitution, it would have been extremely foolhardy for it to have invited Al-Bashir to the ceremony on August 27, 2010, as this would have placed it at odds with the rest of the world. But an objective look at the reactions of the country's interlocutors shows that they merely made statements; no economic sanctions have been imposed or even proposed. The world keeps on turning.
When the Government of Kenya extended its invitation to Omar al-Bashir, only the naive could have expected that the ICC indictments would be insurmountable when Kenya was considering its national interests. Our failure is not that we did not do anything to ensure that the Government of Kenya complied with the provisions of the Rome Statute; our problem is that we were or have been unable to win the public relations war waged against us. Hon. Wetangula, Vice-President Musyoka and the spokesmen of the Government of Kenya and the Ministry of Foreign Affairs have proven quite inept at this game. Their statements have the whiff of panic about them. In the absence of a creditable PR team in government, these worthies should have taken the time to consider carefully how and what they would say and then chosen one person to make the case. The disparate arrangement of the government has exposed it to political risks that will detract from the effort of keeping its foreign relations on an even keel. In the long term, it wold be irresponsible for Kenya to antagonise a nation with a 108,000-ma standing army; a policy of non-intervention would probably be best. This is the prism through which our relationship with Sudan should be viewed; spending time and effort analysing whether or not Kenya should have arrested President Al-Bashir merely showcases that Mr. Omtata and like-minded windbags simply do not understand the concept of international law, its implications, and what our foreign policy should be vis-a-vis international obligations.
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