On August 27, 2010, Kenya ratified a new constitution ensuring basic human rights for Kenyan citizens, denying immunity to the president for international crimes, and declaring that “Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.” Sudanese president Omar al-Bashir, for whom the International Criminal Court (ICC) has issued two arrest warrants on March 4, 2009 and July 12, 2010 based on alleged war crimes, crimes against humanity and genocide, was a guest of honor at the signing of the new constitution. Kenya is a signatory to the Rome Statute, the treaty that created the ICC, and is therefore obligated to comply with ICC’s requests. On the other hand, however, Kenya is a member of the African Union (AU), which resolved that AU Member States should not cooperate with the ICC’s warrants. The invitation to al-Bashir by the Kenyan government violated Kenya’s treaty obligations as a State Party to the Rome Statute governing the ICC and demonstrated allegiance to the African Union (AU).
While the constitution does state that international treaties shall become Kenyan law, it does not establish a hierarchy of treaties to which Kenya is a party. This lack of clear priority makes it difficult to determine which treaty will be honored when two bodies created by these treaties, such as the ICC and AU, issue conflicting instructions. Under Article 86 of the Rome Statute, “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” Thirty-one AU Member States are also States Parties to the ICC. Nevertheless, in July of 2009, the Assembly of Heads of State and Government of the AU issued a resolution stating that AU Member States “shall not cooperate” with the ICC in relation to the warrant for the arrest of President al-Bashir. As a signatory to the AU’s Constitutive Act, Kenya is required to comply with the decisions made by the AU.
The resolution further expressed regret that the United Nations Security Council had ignored specific requests to postpone legal proceedings against al-Bashir until 2010, to allow for reforms in Sudan to take place which were expected to advance the peace process. Such a postponement would be allowed by the Article 16 of the Rome Statute which grants the Security Council power to request that the Court not proceed with investigations or prosecutions for twelve months. The AU considered this request to be a vital issue of regional stability. Human Rights Watch, an organization that has reported on human rights abuses in Sudan for some time, responded with a claim that the only way to bring stability to the region is to bring truth and justice to the victims of crimes. Prior to the constitution signing, the Court transmitted a special request to Kenya and Chad, another State visited by al-Bashir, for compliance with their obligations to the Court in arresting the Sudanese president.
Despite the ICC’s arrest warrants and request for cooperation, and presumably in accordance with the AU’s July 2009 resolution, Kenya took no steps to arrest President al-Bashir when he appeared at the signing of the Kenyan constitution. In response to the criticism that Kenya’s actions garnered from the international community, Kenyan Prime Minister Odanga issued a statement that these actions were wrong, and that Kenya’s obligations under the ICC should have been obeyed. Kenya’s Ministry for Foreign Affairs, on the other hand, insisted that the invitation was necessary for national and regional interests.
It is difficult to determine how a similarly situated state should react to these conflicting legal obligations. Article 18 of the 1969 Vienna Convention on the Law of Treaties states that “A State is obliged to refrain from acts which would defeat the object and purpose of a treaty” which it has signed or expressed intent to be bound by. Therefore, the Kenyan government could only avoid violating its obligations under both the Rome Statute and the AU Constitutive Act by refraining from inviting President al-Bashir to the Kenya.
The actions of the Kenyan government may embolden al-Bashir and other leaders who might in the future be indicted by the ICC for their actions. If it is apparent that States Parties will not uphold their agreements under international treaties, the effectiveness of bodies like the ICC will be severely diminished and other perpetrators of international crimes may feel free to travel with impunity. Kenya’s evaluation of its obligations offers insight into how similarly situated states may act in future.