Bashir saga is no longer judicial to warrant court’s intervention

By Samuel Omwenga

While it is understandable and commendable that Chief Justice Willy Mutunga must defend independence of the Judiciary, his statements on Sudan President Omar al Bashir’s saga are unfortunate for several reasons.

Dr Mutunga felt it necessary to respond to the Executive’s dismissal of a High Court ruling that the ICC arrest warrant against Bashir must be enforced if the wanted man steps on Kenyan soil.

However, just as it was wrong for Foreign Affairs Minister Moses Wetang’ula to publicly fault the judge’s decision, it was wrong for the Chief Justice to respond the way he did.

There are certain things better communicated outside the public glare, if anything, to avoid embarrassment of making the Government look as if it’s at war with itself.

If Mutunga’s position was to make it clear that the Judiciary for the first time is and must be separate and independent from the other branches of Government, he picked the wrong issue to make the point.

The CJ should have picked a domestic issue and used it to bring the point home. Choosing an international issue like the Bashir saga is misplaced strategically because a good case can be made that the courts should altogether stay away from the matter.

First, with the ICC having issued a warrant against Bashir, it is no longer a judicial matter but one for the Executive to enforce.

If the Executive chooses not to enforce the warrant, then there can be no other recourse other than letting Kenya become a pariah nation with concomitant consequences for its leader or one with a constitutional crisis even before the ink has dried on the new Constitution.

Neither option is that terrific but one would have to prefer a pariah nation than one engulfed in a constitutional showdown that can easily swallow all the achievements we have attained this far.

Second, the court should decline to exercise jurisdiction under the "unjusticiability" or "political question" doctrine — both of which hold that there are certain questions and issues better left for the politicians to deal with than the courts.

The Bashir issue is precisely one such matter because it does not render itself to resolution by the courts for the simple reason the court’s position could be at odds with the State’s overall political interests more suitable for the politicians to determine at their own peril than their robed friends.

Alternatively, the courts could simply decline to exercise jurisdiction on grounds there is no ripe issue to litigate since Bashir is not in the country for anyone to determine whether the warrant is enforced.

If and when he lands and is given another red-carpet welcome instead of being handcuffed, someone could then file an emergency application for a writ of mandamus to order the police to arrest him.

By the time one goes through all the procedural hurdles of filing such an application and having a hearing, Bashir would have been long gone, meaning, the issue will never be ripe.

Third, if any court has to do anything further about the Bashir issue, it should not be the Kenyan court but the ICC itself because the Hague-based court has the option to seek enforcement of the warrant through the UN.

Let the court pursue that option and have the chips fall where they may for I do not see how any individual can defy the UN, if recent examples are anything to go by. Not even the AU would dare do so.

These are more than sufficient reasons for the Kenyan courts to stay out of the matter and by doing so, it does not mean the courts will be abdicating their responsibilities or ceding power under the new Constitution.

With that, they will be acting in conformity with it and fully consistent with the doctrine of separation of powers, which may otherwise be undermined by the Executive simply ignoring the court’s orders, as it would likely be the case here, and thus setting us on the path of an unnecessary constitutional crisis.

The writer is a lawyer and political analyst in the US